The rights to a design are acquired by way of its registration and authorisation in compliance with the Designs Act, 2000 wherein a copyright for designs is provided for the protection of rights to one’s design. However, the interpretation of the legal understanding of a design is required to duly obtain protection of the related rights.
A “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two, three or in both dimensional forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye. It shall but not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark.
Exceptions to the understanding include designs which are not original in nature, have been disclosed to the public in any part of the territory of the country, or are not significantly distinguishable from known designs or combination of known designs, or comprise or contain scandalous or obscene matter. It shall be ensured that such nature of designs not be considered for obtaining protection of rights to the use, make, sale or related operations of such design.
A design is protected by way of obtaining a due copyright for the design, which shall be obtained by a due process of application for registration. In India, subject process includes the registration of design for the furtherance of obtaining a Copyright and be published. The same is headed by the Controller-General of Patents, Designs and TradeMarks, who is appointed to be the Controller of Designs for the purposes, while the Central Government may appoint an indefinite number of examiners and other such officers as required.
Any person, including identities attached to the term ‘person’ viz a body corporate, firm, partnership, small entity and alike, or their assignee or legal representative can apply separately or jointly for copyright to a design. Except an NRI, who may apply solely through their legal representative.
Anybody that seeks copyright for their design is required to firstly file an application for the registration of their design to the Controller General of Patents, Designs, and Trademarks which may be by physical means to the Delhi, Mumbai, Chennai or Kolkata Design branch of the Patent office or online means by filing the application at the official e-facility portal of the government.
The acceptance of the application is subject to check and authorisation by the Controller. In the event that the application is accepted, the Controller proceeds to publish the prescribed particulars of the design and its nature and shall be made open to public inspection. The design is made available to the public for the mere check of its originality and authenticity for the purpose of ensuring its individuality and that it does not arise from any maliciously intended use of a design not true to the ownership of the applicant. The cessation of the period of public inspection leads to the registration of the design, sealed by certificate of registration provided by the Controller.
When a design is registered, the registered proprietor of the design shall, subject to the provisions of the Designs Act, have copyright in the design during ten years from the date of registration. If, before the expiration of the said ten years, an application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall extend the period of copy-right for a second period of five years from the expiration of the original period of ten years.
By way of an application for cancellation of registration of a design to the Controller, any person may file for the cancellation of a design’s registration on the grounds that the design has been registered previously in India or, that it has been published in India or in any other country prior to the date of registration or, that the design is not a new or original design or, that the design is not registrable or, that it is not a design.
The authority of the Designs Act, 2000 provides a registered design to which any person(s) may hold copyright with legal protection against the unlawful use, sale, produce or any related operation in regard to the design. Piracy of a registered design in its different manifestations is prohibited, which may be for the purpose of sale or its obvious or fraudulent imitation to apply or cause to apply to any article or, for import for the purpose of sale without the consent of the registered proprietor, any subject article.
Any person may obtain legal protection of rights to their design by way of registration of their design in furtherance of obtaining copyright to the design. The registered design, subject to the compliances of use, produce, sale, import and related operations in regard to it, may be secured to exclude its use by any third party without the rightful and free consent of the proprietor, granting protection of its rights. The Designs Act, 2000 and the Patents Act, 1970 govern the exercise of the grant and performance of rights to a copyright in favour of the proprietor.
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