Design
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What is DESIGN ?
Design meque only the features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or meque, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle or construction or any thing which is in substance a mere mechanical device, and does not include any trade mark. The outward appearance of a product or part of it, resulting from the lines, contours, colors, shape, texture, materials and/or its ornamentation.
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Why protect your designs?
The design or shape of a product can be synonymous with the branding and image of a company and can become an asset with monetary value that could increase. If you do not apply for protection others may benefit from your investments.
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Object of Design Registration:
Object of the Designs Act to protect new or original designs so created to be applied or applicable to particular article to be manufactured by Industrial Process or meque. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The important purpose of design Registration is to see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.
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What can be registered?
A design to be registrable must be new or original. Original meque originating from the author of the design. New applications of old designs are registrable. Designs which are not new or original or disclosed to the public anywhere in India or in any other country or not significantly distinguishable from known designs or combinations of known designs or comprising scandalous or obscene matter are not registrable. This Indian legal position is more on the lines excluding non-registrable designs by identifying the categories of designs not registrable rather than positively reciting what are registrable designs.
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What is the penalty for the piracy of a registered Design?
If anyone contravenes the copyright in a design he is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. The registered proprietor may bring a suit for the recovery of the damages for any such contravention and for injunction against repetition of the same. Total sum recoverable shall not exceed Rs. 50,000/-as contract debt as stated in Section 22(2)(a). The suit for infringement, recovery of damage etc should not be filed in any court below the court of District Judge.
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Why is it important for filing the application for registration of design at the earliest possible?
First-to-file rule is applicable for registrability of design. If two or more applications relating to an identical or a similar design are filed on different dates only first application will be considered for registration of design.
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How does a registration of design stop other people from exploiting?
Once a design is registered, it gives the legal right to bring an action against those persons (natural/legal entity) who infringe the design right, in the Court not lower than District Court in order to stop such exploitation and to claim any damage to which the registered proprietor is legally entitled. However, it may please be noted that if the design is not registered under the Designs Act, 2000 there will be no legal right to take any action against the infringer under the provisions of the Designs Act, 2000. The Patent Office does not become involved with any issue relating to enforcement of right accured by registration; similarly The Patent Office does not involve itself with any issue relating to exploitation or commercialization of the registered design.
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What is the difference between a Patent and a Design?
A patent covers the function, operation or construction of a new creation. To be patentable, a function must be innovative, have an industrial application and be described in such a fashion that a man of the art is capable of reproducing the process. A design covers the appearance only of a product. A design cannot protect the function of a product. If protecting a product with both a patent and a design registration (i.e. a new product can perfectly include both new functions and a new appearance), the timing of the applications will be crucial, as it must be ensured that the publishing of one or other of the rights does not destroy the novelty of the other application.
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What is a Register of Designs?
The Register of Designs is a document maintained by The Patent Office, Kolkata, as a statutory requirement. It contains the design number, class number, date of filing (in this country) and reciprocity date (if any), name and address of Proprietor and such other matters as would affect the validity of proprietorship of the design.
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When does the Applicant for Registration of Design get the registration certificate?
When an application for registration of a Design is in order, it is accepted and registered and then a certificate of registration is issued to the applicant. However, a separate request should be made to the Controller for obtaining a certified copy of the certificate for legal proceeding with requisite fee.
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Can the same applicant make an application for the same design again, if the prior application has been abandoned?
Yes, the same applicant can apply again since no publication of the abandoned application is made by the Patent Office, provided the applicant does not publish the said design in the meanwhile.
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Whether it is possible to trquefer the right of ownership?
Yes, it is possible to trquefer the right through assignment, agreement, trquemission with terms and condition in writing or by operation of law. However, certain restrictive conditions not being the subject matter of protection relating to registration of design should not be included in the terms and condition of the contract/agreement etc. An application in form-l0, with a fee of Rs. 500/- in respect of one design and Rs. 200/- for each additional design, for registration of the trquefer documents is required to be made by the beneficiary to the Controller within six months from the date of execution of the instruments or within further period not exceeding six months in aggregate. An original/notarized copy of the instrument to be registered in the register of design is required to be enclosed with the application.
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Can the Registration of a Design be cancelled?
The registration of a design may be cancelled at any time after the registration of design on a petition for cancellation in Form 8 with prescribed fee to the Controller of Designs on the following grounds: That the design has been previously registered in India or That it has been published in India or elsewhere prior to date of registration or The design is not new or original or Design is not registrable or It is not a design under Clause (d) of Section 2.
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