Design Protection in India by Vanshika Chauhan at LEXCLIQ

Scope of protection of design registration

The aesthetics of any article or product of manufacture are protected and registered in India under the Designs Act, 2000 (“the Act” for short) and Designs Rules, 2001, as amended in 2008. A “Design,” according to Section 2 (d) of the Act, is defined as features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article by any industrial process or means. The article can be a two-dimensional or three-dimensional article, and should be capable of being made and sold separately. The design in the finished article should appeal to and be judged solely by the eye.   Protection of design does not include any mode or principle of construction or anything, which is in substance a mere mechanical device, and does not include any trademark or property mark or artistic work. Thus, the Act provides protection or registration right only to the designs that are aesthetic in nature, applied to articles, and not to the designs dictated by a functional feature.

Who can apply for design registration?

As per Section 5 of the Act, any person who claims to be the proprietor of any new or original design can apply for registration of such design. The term ‘proprietor’ has been defined in Section 2(j) to mean a person for whom author of the design has executed the work in return for good consideration, or a person who has acquired the design or the right to apply the design to any article, or the author of the design and any other person upon whom the right in the design has devolved.

The essential requirements for registration of a design are:

  • Should be judged solely by the eye and the features of the design should be visible.
  • Should be new or original.
  • Should not be disclosed to the public in India or elsewhere in the world by prior publication or by prior use or in any other way.
  • Should be significantly distinguishable from designs or combination of designs that are already registered or pre-existing or disclosed to the public.
  • Should not include any scandalous or obscene matter.
  • Should be applied to an article by an industrial process.
  • Should not include any feature that is purely functional.
  • Should not include any trademark or property mark or artistic work as defined under the Copyright Act.

Advantages of a design registration

Design registrations are particularly useful since, many a time, a customer’s purchase decision is based on the product aesthetics, i.e. shape, look, color combination, ornamentation, etc. Customers may also associate a product with a particular company or with a particular quality standard based on the product aesthetics. For companies, the design is the simplest way of differentiating ones products from competing products. Further, companies manufacturing imitation products usually copy the design, i.e., look and feel of a product, to gain market share. As a result, it becomes important to protect the design from being copied.

Design registration vis-a-vis product patents

Patent protection is provided to inventive features of a product that are the result of technological advancement. Such features, which are functional and/or structural in nature, make the product novel and inventive. Design registration, on the other hand, is provided for the aesthetic features and visual appeal of the product. The design registration, by definition, specifically excludes any functional feature. Thus, patent and design registrations cover different types of IP.

Design registration vis-a-vis copyright protection

When considering protection of aesthetic features, businesses typically look towards copyright protection. However, it is important to note that the registration of designs and copyrights cannot exist concurrently due to Section 15(1) of the Copyright Act, 1957. Also, if an article that can be registered under both design as well as copyright protection is reproduced more than fifty times by an industrial process, then, as per Section 15(2) of the Copyright Act, copyright protection to the article automatically ceases. In such a case, if the design is not registered in India, then it no longer has any protection against imitation by competitors.

Design registration vis-a-vis trade mark registration

In general, a design registration can be used to stop others from copying the registered design irrespective of the mark under which it is traded. There is some overlap possible between trade marks and designs, especially with three-dimensional (3D) trade marks. However, there are a number of issues, such as distinctiveness and association of the 3D trade mark with the producer of the goods, because of which 3D trade marks are generally objected to by Patent Offices. Hence, it may be prudent to obtain a design registration to secure exclusivity at least in the initial period of a product launch. Further, since there is no restriction on the use of a trade mark before it is registered, companies may take a call on whether to register a 3D trade mark for a product or not, after the product is launched and depending on whether it succeeds in the market.

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