Design rights are intellectual property rights that protect the visual design of objects; i.e. the visual perception of an object by a viewer. Design plays an important role in everyday life: influencing the shape or decoration of man-made products such as household utensils and ornaments, furniture, fabrics, the clothes we wear, the cars we drive; in each case, making them easier or more attractive to use. For a design to be protectable it must have particular characteristics:
||It must display features of shape, configuration, pattern or ornamentation which are applied to an article which has "eye-appeal" (aesthetic appeal);
||The appearance of the article must be such that it matters to consumers as a quality distinct from its function. Design protection does not extend to features which are prompted purely by function (i.e. solely dictated by the function which the article has to perform), such as the seat of a chair (although the particular shape of the seat may be protectable).
Benefits of Design Registration
The registration of a design confers upon the registered proprietor the exclusive right to apply a design to the article in the class in which the design has been registered.
A registered proprietor of the design is entitled to a better protection of his intellectual property. He can sue for infringement, if his right is infringed by any person. He can license or sell his design as legal property for a consideration or royalty. Registration initially confers this right for ten years from the date of registration. If the fee for extension is not paid for the further period of registration within the period of initial registration, this right will cease. There is provision for the restoration is filed within one year from the date of cessation in the prescribed manner.
Essential requirements for registration
A design should:
• Be new or original
• Not be disclosed to the publication in tangible from or by use or in any other prior to the
filing date, or where applicable, the priority date of the application for registration.
• Significantly distinguishable from known design or a combination of known designs
• Not comprise or contain scandalous or obscene matter
• Not be a mere mechanical contrivance.
• Be applied to an article and should appeal to the eye
• Not be contrary to the public order
Filing an application: An applicant may apply for the registration of design by filing an application on prescribed form accompanied by the prescribed fee and four copies of the representation of the design.
The application can either be filed at the Design Wing of the Patent Office in Kolkata or any of the Branch Offices at Delhi, Mumbai and Chennai. However the applications received by the Branch Offices shall be transmitted to the Head Office in Kolkata for processing and prosecution.
Examination: Unlike the procedure followed in Patents, the Design applications are taken up for examination by way of filing the application for registration of Design only. That is no separate request for examination is required to be filed with the Indian Patent Office in this regard.
Notification of objections: The applicant is required to correct the defects and resubmit the application to the Patent Office for acceptance within six months from the official date of the application.
Registration and Publication: An application is accepted when all the shortcomings raised in the Examination Report have been rectified. If accepted the Patent Office issues the registration Certificate and thereafter it is duly notified in the Patent Office’s journal.
In case the objections are not rectified, a personal hearing is provided to the applicant. After hearing the controller decides whether the application should be accepted or not.
Term of Protection: In India, a design registration lasts for a period of ten years from the date of registration of design.
The term can be further extended for another five years by filing the application for extension along with the prescribed fee.
||General Power of Attorney given to the agent duly signed by the proprietor, partner or one of the Directors of the company
||Four copies of Representation of the design on A4 size paper which shall be exactly similar drawings, photographs, tracings or other representations of the design.
||Documentary proof of Priority (if any) (i.e. any previous registration or application for registration)
||List of countries to claim the priority, if any, where the application / applications for design has/ have been filed, along with date and application number.
• The name, address and nationality of the Applicant. If the Applicant is not a natural person
the legal status and the place of incorporation
• Name of the article to which the design is to be applied.
• A brief statement of the novelty one claims for his design
• Class of the article embodying the design
• Name(s), age and address (es) and nationality (ies) of the Applicant/s whether they are
partners or Directors of the firm/company.
• Name, address, designation and nationality of the person who signs the General Power of