What is a Design:
Design, emphatically, is an aesthetic parameter of an article or a product, which includes pattern, shape, configuration, ornament or composition of lines or colors and the like.
What constitutes a Design:
- is shape, configuration and pattern, ornamentation or composition of lines or colours, as applied to an article of manufacture, which in the finished form appeals to and is judged solely by the eye;
- may be two or three dimensional or in both forms;
- shall be capable of being a product of industrial process or means, whether manual, mechanical or chemical, separate or combined;
- shall not be a mere mechanical device, mode or principle of construction;
- does not include:
- any trademark, as defined under Section 2(zb) of the Trademarks Act, 1999, or
- any property mark, as defined under Section 479 of the Indian Penal Code, 1860, or
- any artistic work, as defined under Section 2(c) of the Copyright Act, 1957
- A painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality.
- Any work of architecture i.e. any building or structure having an artistic character or design or any model for such building or structure.
- Any work of artistic craftsmanship.
Types of Design Application:
There are two types of design applications:
- Ordinary application: Ordinary applications are the applications which do not claim priority from any previously filed application.
- Reciprocity application: Reciprocity applications generally claim priority from an application that was filed previously in a convention country. Such kind of applications must be filed in India within six months, which is a non-extendable period, from the date of filing in convention country.
Classification of Designs:
India follows Locarno classification system for design registration, wherein the articles are classified into 31 classes and a miscellaneous class 99.
Criteria for Novelty and Originality of Design Right:
Design right is only granted when a design of an article is novel or original. A criterion for novelty and originality is defined below as per the law:
- A design shall be considered to be new when it has not been disclosed to the public, anywhere in India or in any other Country, by publication or by use or in any other way, prior to the filing date or priority date.
- A design shall be considered new if it is significantly distinguishable from known designs or combination of known designs.
- Disclosure of a design shall not be deemed to be publication of design, sufficient to invalidate the copyright thereof, in the following circumstances:
- Proprietor disclosed the design to any other person before registration, in such circumstances as would make it contrary to good faith for that other person to disclose the design. However, that other person discloses the design in breach of good faith.
- Acceptance of first and confidential order, before registration, for articles bearing a new or original textile design intended for registration.
- A design is not invalidated or prevented from registration:
- if a design or an article to which a design is applied has been exhibited in an exhibition to which the provisions of Section 21 of the Designs Act, 2000 have been extended by the Central Government by notification in the official gazette; or
- if a description of the design is published, during or after the period of holding of such exhibition; or
- if any person:
- exhibits the design or the article to which the design is applied; or
- publishes a description of the design, during or after the period of holding of the exhibition, without the privity or consent of the proprietor.
However, to avail the benefit of this provision, the proprietor shall:
- give a notice in Form-9 to the Controller before exhibiting the design, and
- file the application for registration of design within a period of six months from the date of first exhibiting the design or publishing the description.
Original in relation to a design, means:
- originating from the author of design, and
- includes the cases, which though old in themselves yet are new in their application.
For instance, the figure of Taj Mahal is centuries old. But if a person conceives for the first time, the idea of making a flower vase or an ash tray in the form of figure of Taj Mahal, that may be an original design and shall be registrable.
Design Prosecution and Registration:
Design Registration process involves following steps:
Online Patent Filing - Get The Best Services for Patent Design Filing
All the creativity shall, of course, have to be done by you, but once you have created an original design of some product that is patent-worthy, you must file a design patent application and go through the legal procedure involved in it. It is important to understand the law relating to this issue if you wish to apply for such a patent. Let us go into detail about the same.
Who can file a design patent application or design application?
Anyone who has created a new, ornamental design of an 'article of manufacture' is eligible to apply for design patent for the same. Here, an 'article of manufacture' can involve any manufactured goods or tools. The term 'design' refers to the visual aesthetic appeal of the good - the shape, pattern, or ornamentation.
Here, one must understand that the law distinguishes between the utilitarian features of a product and its purely aesthetic features, and it is only the aesthetic features that fall under the scope of design for this law.
These forms can be of two types - ordinary and reciprocatory. The ordinary application doesn't claim any priority over previously received applications, whereas reciprocatory applications claims such a priority over any previously received application in a convention country.
In India, a reciprocatory application must be filed within six months from the date of a filing in a convention country. This period can't be extended for any reason.
The Rationale For Going For Design Patent Filing
The idea behind filing a patent design or design application is to get the protection for one's IP rights over the design so that no competitors or anyone may use it for commercial purposes without the creator's express approval. The design also ensures that products designed after expensive research won't be copied by competitors. In case somebody uses the patent design without the express approval of its owner, the owner will have a right to take legal action against the same for remedies. The law thus provides necessary legal protection to the designer/creator.
Just because utilitarian features are not included, it should not be assumed here that these patents are not important enough. They are quite crucial for a company that has put a lot of thought into the design of its products - this is particularly true in the case of computers, smartphones, and electronics, as well as various computer peripherals. Companies working in these industries are spending millions on researching unique and innovative designs - and they can easily protect the assets thus generated by getting a patent design. As these industries have grown exponentially, the law relating to design patents have grown even more important.
The protection provided by the design patent law extends to fifteen years only (10 years and after renewal 5 years), after which anyone can copy the design in question.
How to apply for design patent?
Theoretically, the whole process is simple - all you need to do is fill out a form. Some drawings might have to be made to showcase the original design. If the design is found by the authority to be allowable, it shall be issued. However, in order to get the design patent application, it must be filled with accurate information - only one claim is allowed, and it must be specific. The application must also not include any utility features - if one desires an IP right in the same, a separate patent application must be made for the same. Moreover, time may be of the essence if one wishes to file for a reciprocatory application. All these legal complexities make it desirable to seek the legal counsel/advice of IP law experts in most cases.
Online Patent Filing is the best place for design patent filing as well as for other kinds of patents. We are one of the strongest networks of IP attorneys and law firms who are working together to help our clients easily apply for design patent. We bring several years of experience and unparallel expertise to the service of our clients. The biggest advantage of taking our service is that you can go through the whole process online.
Moreover, you can get our service in the most cost-effective way. We shall provide you handholding through the whole process of design patent filing; all you have to do is to initiate the process by requesting a quote.