THIS ARTICLE HAS BEEN WRITTEN BY MS. KEERTHI BAJJURI, A 4TH YEAR STUDENT OF RV INSTITUTE OF LEGAL STUDIES, BENGALURU.
ABSTRACT
Introducing the design act briefly through meaning and suitable examples of the design and also detail explanation about the scope of protection under this act and also tenure of protection with suitable case laws. Brief information about what kind of articles need to be registered under this article and procedure to register as application, publication, inspection and certification under this act and also authorities and legal proceedings under this act.
INTRODUCTION
Design act is one of the essential acts to protect the intellectual property rights. As we knew that patent act is being for the protection of the original inventions of the proprietor on the other hand design act is been for the protection of the shape, configuration of the article which is original and unique. Design act is vital in these days to deliver the justice and also to curb the infringement of rights of the proprietor. The legislation has passed by the parliament to protect the design.
MEANING OF THE DESIGN
Chapter 2 of section 2(d) has been explaining about the definition of the design as follows:
“design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both 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; but does 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 as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957).
NEED FOR PROTECTION OF THE DESIGN
One can able to earn through their creative mind by introducing new and different articles for utility of the people. thus, those need to be protected from the infringement by others. To get protection under this one need to register under the design act.
Let us consider “A” is the famous cloths designer with unique design which has been registered under the design act, 2000. Later “B “is the one who copied the unique design of the “A”. the profits which “A “was getting previously is shift to the “B”. thus, there is an injustice to the proprietor of the design where his rights need to be protected from “B”.
NATURE OF COPY RIGHT PROTECTION IN DESIGN ACT.
The design act 2000 provides protection to the proprietor of a design by grating them the exclusive right to use the design and prevent others from using it without their consent. The proprietor of the design can also take legal action against any person who infringes their rights.
TENURE OF PROTECTION AGNIST INFRINGMENT
The design which registered under the act has been protected for 10 years. Then proprietor has to renew the protection for 5 years through application. Act shall not be protecting the design after expiry of the tenure.
SCOPE OF PROTECTION UNDER THE DESIGN ACT
Before the protection, proprietor shall have to follow some of the steps called Application, publication, inspection and certification, etc.
WHAT KIND OF DESIGNS SHALL BE ELIGIBLE FOR REGISTRATION?
Chapter 3 of section 4 shall be discussing about the prohibition of the registration of certain articles as follows:
Prohibition of registration of certain designs. —
A design which—
(a) is not new or original; or
(b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or
(c) is not significantly distinguishable from known designs or combination of known designs; or
(d) comprises or contains scandalous or obscene matter, shall not be registered
As per section 22 of the design act,2000, during the existence of copy right in the existence of the any design no person shall, without the consent of the registered proprietor.
- For the purpose of sale, apply the design or any fraudulent or obvious behaviour imitation to an article that falls within in any class of article in which the design is registered
- Import for the purpose of sale, any article belonging to the class in which the design or any fraudulent or obvious imitation.
- Publish or expose or cause to be published or exposed any article knowing that the design or any fraudulent or obvious imitation has been applied to any article.
JUDICIAL PROCEEDINGS
Chapter 5 of Indian design act deals with legal proceedings it contains provisions for privacy of registered designs and application of certain provisions of the act as to be patent to deign
RELATED CASE LAWS
M/S Kamdhenu Limited v. M/S Aashiana Rolling Mills Ltd
FACTS: In a case involving a registered design pertaining to double rib pattern of steel rods, the Delhi High Court cancelled the registration summarily stating that there is no need for a full trial. The Court came to this conclusion primarily based on the fact that the design that formed part of the registration was published as part of British, ISO and other standards before the filing date of the design application. Based on the evidence on record,
JUDGMENT: the Court stated that the application for cancellation of the Registered Design has a high likelihood of success, and that no further evidence needs to be led in this respect. While stating so, the Court pointed out that a strong prima facie case at the interim level does not necessarily give rise to a high likelihood of success.
Kemp $ co. v. prima plastic limited
The court laid down that “if the visual features of shape, configuration pattern design are similar or strikingly similar to the eye, it is not necessary that the two designs must be exactly identical and same. Th matter must be looked at as one of substance and essential features of the design to be considered.
M/Whirlpool of India Ltd. v. M/Videocon Industries Ltd.
Facts– In this case, whirlpool had got two signs registered. Later on, Videocon got a design registered which had the same features, configuration, shape as the Plaintiff i.e., whirlpool and was evident at the first look to be a replica. Videocon contended that they had already registered so they can’t be held liable for infringement and also for passing off which is not applicable for registered design.
Judgment- The Court held that there was a similarity between the design of the plaintiff and the defendant. The defendant i.e., Videocon was held liable for infringement and passing off of the Plaintiff’s design.
CONCLUSION
Design act is one of the essential and vital acts in current era. Ones design shall have to register under the copy right of design act to get protection under this. Even though this act consists of some uncertainty in both substantial and procedural aspect some amendments have to be taken in future to eradicate the uncertainty and to deliver the justice.