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Design Registration

Trademark search and application filing under one class.

Design registration is a type of intellectual property protection under which a newly created design applied to an article created under an industrial process can be protected from counterfeiting. This registration provides authority to the owner to use the Design for ten years, and the time can be further extended for the next five years. The present article briefs the Design Registration procedure in India.

Definition of a Design

A design is defined under Section 2(d) of the Designs Act 2001, as only the features of a shape, pattern, configuration, composition, or ornament of lines or colors that are applied to any article that is two dimensional, three dimensional, or both by an industrial process or any means whether mechanical.

Advantages of Design Registration in India

Following are some advantages that an owner can avail after getting registration of a design in India:

Exclusive rights over the new and original design
An asset of the proprietor/owner
Can initiate a legal proceeding in case of infringement by a third-party
Serve as a prima facie evidence in an infringement suit
Right to sell, transfer and license the design with ease

Essentials Requirements

Under the Design Act, 2000 for a design to be registered and protected under the Act, the following are essential requirements that need to be fulfilled:

A design should be Original and new design. This means that it should not have been used or published previously in any country before the date of application of registration.
A design should be significantly distinguishable from known designs or a combination of known designs
A design should not comprise or contain scandalous or obscene matter
A design should not be a mere mechanical contrivance
A design should be applied to an article and should appeal to the eye
A design should not be contrary to public order or morality

Eligibility Criteria

Any person or the legal representative or the assignee can apply separately or jointly for the registration
The term “person” includes firm, partnership, small entity, and a body corporate.
In the case of an NRI, his agent or legal representative need to apply for Design Registration

Documents Required for Design Registration

The following documents are to be submitted to get design registration:

A certified copy of the original or certified copies of extracts from the disclaimer
Affidavits
Declaration
Other public documents can be made available on payment of a fee.

The affidavit should be in paragraph form and should contain a declaration of truth and verifiability. However, the controller may regulate the cost involved in design registration according to the fourth schedule.

Protection Given to Design Registration

When a design is registered, copyright is bestowed upon the registered design for a period of 10 years (extendable by 5 years). Through this, the proprietor enjoys an exclusive right over the use of the design in the class in which it’s been registered.

What is excluded from the scope of a Design Registration?

Unlike copyright protection, the design registration doesn’t protect any literary or artistic work like books, calendars, stamps, tokens, buildings and structures, and maps. Further, an application cannot be made for designs similar to the national flags, emblems, or signs of any country.

Validity of Design Registration

Design registration is valid for a period of 10 years and can be extended for a further term of 5 years with the payment of the necessary fees. The design will lapse if the extension is not done in time, but can be restored in the following manner:

The application for restoration is to be made within one year from the date of the lapse of the design via Form 4, only in the case of non-payment of the extension fees. Once the application for restoration is approved, the necessary extension fees are to be paid.

Process for Design Registration

The first thing to be noted is that the application to register a design may be applied to five different authorities:

Controller Designs Patent Office in Kolkata
The patent office in Delhi
The patent office in Ahmedabad
Patent Office in Mumbai
The patent office in Chennai

The application for design registration must be filed with Form-1 along with the following details:

Name of applicant
Address of the applicant
Nationality of the applicant
In the case of a company, information regarding the place of incorporation and the legal status of the entity
The required fee is applicable
The class and the sub-class of the article under the Locarno Classification, of the article embodying the design
The name of the article to which the design is applied upon.
Representation of the design
Statement of disclaimer or novelty must be attached to each representation with respect to mechanical processes, trademark, numbers, letters, etc. it should also be endorsed and duly signed and dated on each representation by the applicant or the authorized person on behalf of the applicant.

Cancellation of Design Registration

Under the provisions of Section 10 of the Design Act, 2000, registration can be canceled if:

The design is unoriginal and if similar designs already exist
The design has already been registered in India
The design has already been published in another country prior to the date of registration
Does not comply with the characteristics of a design as mentioned under the Design Act.

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Trademark vs Copyright vs Patent

Trademark Patent Copyright
What’s protected Any word, phrase, symbol or design that recognizes and differentiates the source of one party's goods from those of another. Inventions, such as procedure, manufacturer, composition, machines of matter as well as improvements to these. Books, articles, music, photography, sculptures, dances, sound recordings, motion films and other original works of authorship.
Requirements for protection A mark must be distinguishable, in the sense that it must be able to identify the source of a certain good. A fresh, valuable, and unusual invention is required. A work must be unique, original, and created in a tangible manner.
Term of protection As long as the mark is used in commerce. 20 years Author’s life span+ 70 years.
Rights Granted Right to use the mark and to prohibit others from using identical marks in a way that could create confusion about the goods or services' origin. Right to restrict others from manufacturing, selling, or importing the patented invention. Copyrighted works have the power to dictate their reproduction, creative works, circulation, public performance, and display.
Design Registration FAQ's
What is a Design?
A design is referred to shape, ornament, pattern, composition of line or colors, or any other visible aspect. A design can be two or three-dimensional.
Is Design registration mandatory?
Design registration is not mandatory, having a design registration protects the design's uniqueness and authenticity.
Why get design registration?
A design registration bestows copyright on the design that is registered for 10 years which can be further extended by 5 years. The owner of the design has exclusive rights to use the design in the class in which it has been registered.
When to apply for a Design registration?
An application for design registration should be made as soon as possible after the design is finalized and before it is shown to others.
Who can apply for Design registration?

Application for obtaining design registration can be made by the proprietor of any design, an Assignee ( jointly or separately ), if the applicant is a non-resident Indian then his agent or representative should apply.

Is it possible to transfer the ownership of design registration?

Yes, the ownership of design registration can be transferred by an assignment, a license agreement, or transmission.

Which Form is to be filed for transferring the ownership of design registration?

For transferring the ownership rights of a design registration an application is to be made to the controller of Patents and Design in Form 10.

What are characteristics that can help you in obtaining design registration quicker?

A design must include these qualities to obtain a design registration It should original and unique. The design should not be controversial or should offend the public order. It should not be published anywhere earlier Lastly, the design is applicable to the physical characteristics and does not include the procedural or mechanical elements.