Chapter 5 Industrial Design

Industrial Design Definition: The service of creating and developing concepts and specifications that optimizes the function, value, and appearance of products and systems for benefit of user and manufacturer is called as Industrial Design.

Design may consist of three-dimensional features such as shape or suface of an article, or it can be two dimensional features such as patterns, line or color.

Design can be applied to wide variety of products of manufacturing. It can be applied to products from watches, jewellary, fashion, luxury items, houseware, furniture, electrical equipments, vehicles, architectural structures, practical goods and textile designs, toys, pet accessories.


Protection of Industrial Designs:

The owner of the design is given a right against its unauthorized copying or imitation by third parties. Simply we can say that the owner of the design have the right to prevent third parties from using it without his consent.

Industrial designs have the commercial value, hence unauthorized use must be restricted.

The design does not protect any technical features of the article.

Inorder to register design it must be new, or original. The novelty or originality may differ from one country to another, also the registration process also varies. Design must be capable of reproduced by Industrial means i.e. the design should have an Industrial application.

In India, act provides that the design may be registered in respect of an article. Article refers to any article of manufacture and includes any part of an article that is to be made and sold seperately.


Requirements for Industrial Design:

Inorder to register a design under Design Act in India, following criteria has to be satisfied:

  • Design should be novel and original.
  • It should be applicable to a functional article.
  • Design should be visible on a finished article.
  • There should be no prior publication or disclosure of that design.
  • Design should be non-obvious.

A design is protected in respect of class or classes of articles. How ever not all designs qualify for the protection they are :

  • Principles or methods of construction.
  • Features related to a function.
  • A trademark, artistic or proprietary mark.
  • Immoral designs, or designs contrary to public order.
  • A mechanical device.

Registration of Industrial Designs

On the application claiming to be the propreitor of that design controller checks for novelty, originality, contrary to public order or morality, register the design after due consideration.

Upon getting aplication for registration, controller may appoint an examiner to check whether design is registrable under the Design act or not and has to submit a report to Controller.

The application for registration of design has to be filed along with prescribed fees.

For the purpose of registration goods are divided into 32 classes. A design is registered only in one of these classes. If question arises as to class in which an article falls, desicion of controller in this regard will be final.

After registration of a design, Controller publishes application and representation of the article in Official Gazette and opens it for public inspection. The controller then grants a certificate after registration of the design and enters same in Registry of Designs.

If an application is refused then the applicant may appeal to high court.

If an application of an Industrial design is refused or abandoned then application, drawings, photographs, tracing, representations or specimans should not be open to public or to be published by Controller.

The controller shall grant a certificate of registration to proprietor of design after registration.

Steps:

  • Existing designs are searched.
  • Representation showing exact article on which registration is applied is prepared.
  • Appropriate class for the design is identified from internationally accepted 32 classes of designs.
  • Evidence of novelty is prepared.
  • A priority date for Convention Countries is claimed.
  • Prescribed fees for the Industrial design.
  • After completion of above procedures, application can be filed in Design office in Kolkatta or any other branch of Patent Office in New Delhi, Mumbai or Chennai.
  • After the examination if demanded some of additional informations required is to be submitted.
  • To facilitate easy communication and registration full and correct address should be mentioned.

Any person interested may file an application to the controller for cancellation of registration for following:

  • Industrial design has been previously registered.
  • That design has been published in India or any other country.
  • Design is not new or original.
  • Design is not registrable under Design Act.
  • Application for a Design that is not a design as defined in the Act.


Infingement of Industrial Design

Infringement is violation of rights of a propreitor of an Industrial Design.

Upon registration of a design the propreitor can get a copyright in registered design for a period of ten years from date of registration.

Imitaion of that design, import such goods for sale without consent of the propreitor of the design is considered as infringement.


Remedies against infringement:

The design statute in India doesnot provide any seperate provision on criminal remedies provides criminal actions for infringement of designs.

According to Design act, 2000 any person who has infringed shall liable to pay sum not exceeding twenty five thousand rupees recoverable as contract debt. Total sum recoverable in respect of any one design shall not exceed fifty thousand rupees.

Any further relief under this provision shall be instituted in any court below court of district judge.


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