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Guest post by: Kaviraj Singh Become an Author

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An article is distinguished not only by its utility but also by its visual appeal which too usually play an important role in shaping the buyers preference for the article. Therefore, the design of an article and even design of its packaging is important from the commercial view point.

Since the enactment of the Design Act, 1911 considerable progress has been made in the field of science and technology. The legal system of the protection of industrial design requires to be made more efficient in order to ensure effective protection to registered design. It is also essential to promote design activity in order to promote the design element in an article of production. The Design Act, 2000, after repealing the Act of 1911 aims at the protecting the design in India and bringing the Indian law at par with International law.

A design can be registered only when it is new or original and not previously published in India. A design would be registrable if the pattern though already known is applied to new article. For example, the shape of teddy bear if applied to school bag would be registrable. It is necessary that the design must be new with respect to the class of the article to which it has been applied. A combination of previously known designs can be registered if the combination produces a new visual appeal.

The novelty or originality is to be judged on the evidence of expert in the trade. An expert who is aware of what is common trade knowledge and usage in the class of goods to which the design is applied would be the once entitled to pass the verdict on the novelty and originality. The design must appeal to and judged solely by the eye. The visual appeal of the article must be to the eye of the customer.

The design must not be previously published in India. To constitute publication, a design must be available to the public or it has been shown or disclosed to some person who is not bound to keep it secret. The private or the secret use or an experimental use of a design will not constitute publication by prior use. In the case of Wimco Limited versus Meena Match Industries, the High Court held that the disclosure even to one person is sufficient to constitute publication.

As per Section 5 of Design Act, 2000, any person who claims to be the proprietor of any new or original design can apply for the registration of the design. The foreigner can apply for the registration of the design. However, the convention followed is that if a country does not offer the identical registration right to Indian citizen for their designs in their country, its citizen would not be eligible to apply for registration of design in India.

The application under Section 5 shall be accompanied by four copies of representation of the design and the application shall state the class in which the design is to be registered. The applicant is also to file a brief statement of novelty with the application. There are 31 classes plus miscellaneous class 99 of goods. The procedure for registration of a design is comparatively simple when compared to procedure for registration of a patent and trademark.

a) Submission of application

b) Acceptance / objections / refusal

c) Removal of objections / appeal to central Government

d) Decision of Central Government

e) Registration of the design

The exclusive right conferred on a design is termed as copyright in design. It should not be confused with exclusive right granted for literary and artistic work also termed a copyright in the literary and artistic work. There are certain designs which can qualify for registration both under the Design Act and Copyright Act. The industrial design and product design are covered by Design Act, 2000, if the design has been registered under this Act, it can not be protected by the Copyright Act even though it may be an original artistic work. If the design qualifies for registration under Design Act but has not been registered under Design Act, the exclusive right will subsist under the Copyright Act. If such design is of an article which is commercially produced, the copyright over the design under Copyright Act will cease to exist when the article to which design has been applied is reproduced more than fifty times by an industrial process by the owner of the copyright.

There is an overlapping area of the applicability of the Design Act and Copyright Act but they can not be applied at the same time for protection of the same subject matter. Section 11 of Design Act lays down the term of the copyright in design is ten years which can be extended to further second period of five years making it total fifteen years.

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