Designs act was enacted to protect and safeguard the original industrial designs which are applied to particular articles manufactured by industrial process or means. Nowadays each mechanical or business company has its own unmistakable, unique and apparent Designs. The contenders or different adversaries gatherings may make endeavours to misuse the plans for their potential benefit, in this way, there is an imperative need to defend these structures. Section 2(d) of the Designs Act, 2000 characterizes the term design. So under this demonstration, an Industrial Designs Right is being conceded to its maker or the proprietor, and this is an Intellectual Property Right that secures the visual plan, that is the style, appearance, design and so on, of the modern item. A successful arrangement of security likewise benefits the shoppers and people in general everywhere by advancing reasonable rivalry and genuine exchange rehearses.
Prior this Act was administered by the Design Act, 1911. To carry the Design Act at standard with the International law the order of the Design Act, 2000 was published. In this way, by and by the plan laws are managed by the Design Act of 2000. It is an Act to solidify and change the law identifying with the security of structures. It was published in the Gazette of India and came into power on 12.05.2000. This Act is a finished code in itself and is legal. It reaches out to the entire of India.
Section 2(d) states that “Design” means features of shape, pattern, configuration, ornament or composition of colours or lines which is applied in three dimensional or two dimensional or in both the forms using any of the process whether manual, chemical, mechanical, separate or combined which in the finished article appeal to or judged wholly by the eye.
Although it 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 as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958;
- It does not include ‘property mark’ as defined in section 479 of the Indian Penal Code, 1860.
- It does not include any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.
India is a member of the World Trade Organization's Paris Convention. It has marked the Patent Cooperation Treaty which permits all the signatories of the show to guarantee need rights. Under the Act of 2000, Locarno classification has been accepted in which the arrangement or the classification depends just on the design. Under the previous arrangements, the order was made based on the material which has been used to make that material. The coinage of “Absolute Novelty" makes it conceivable to pass judgment on novelty based on the earlier publication of any article. This is accepted in different nations moreover. According to the new law, a plan can be reestablished which was missing in the past institution. Presently, the enlistment of a plan can be reestablished. The Act permits the district courts to move cases to the high court where the purview is available. It is possible just in situations where an individual is testing the legitimacy of any enrollment or registration. Laws concerning the appointment of forces of the controllers to different controllers and the obligation of analyst are likewise mentioned in the new Act. The quantum of punishment is additionally improved under the Act if there should arise an occurrence of any encroachment. Arrangements concerning the evasion of certain prohibitive conditions are additionally there to manage hostile to serious practices in contractual licenses. At whatever point a license is brought inside the space of open records and that too freely, the registration is probably taken into consideration. Anybody can get an affirmed duplicate of it to examine the equivalent. The laws concerning the replacement of the application before enlisting a design are additionally referenced in the new order. Under the new order, power has been given to the district court to move cases to the high court where the court is having ward. It contains arrangements for avoiding of certain prohibitive conditions to manage against serious malpractices inside legally binding licenses. The enlistment is thought about when it is brought inside the space of open records that too truly. Anybody can investigate the records and get a confirmed duplicate of it.
Essentials of valid designs
- No prior publication
- The design must be applied to a particular article
- Visibility on finished products
- Registration (Section 3-9)
- Section 3 of this act states that the Controller General of Patents, Design and Trademark appointed under the Trade and Merchandise Marks Act, 1958 shall be the controller of Design for this act.
- Section 4 of the act states that any design which is either not new or original or is disclosed to the public anywhere in India shall not be registered,
- Section 5 states that any person can file an application claiming to be the sole proprietor of any new or original design then the Controller will then allude the application for assessment to the inspector to know whether such plan is equipped for being enrolled under the Act. The controller will acknowledge the application and continue appropriately to give enlistment to the structure if everything is great or if there emerges no complaint.
- Section 5 (2) describes the application filling method, application for the enrollment of designs will be made in the prescribed form and will be documented in the patent office alongside the recommended charge. The application should express the class where the design is to be enlisted and the article or the articles to which the design is to be applied. Separate applications are required to be petitioned for each class of article.
- Section 6 talks about registration respect of particular article it states (1) A design may be registered in respect of any or all of the articles compromised and prescribed class of articles.
- (2) that any question arising as to the class within which any article falls shall be determined by Controller.
- Section 7 talks about the publication of particulars of registered Designs it states that The controller after registration shall publish the particular design and introduce it in the public domain.
- Section 8 describes the power of Controller to make orders regarding substitution of application etc.
- Section 9 states that the Controller shall grant a certificate of registration to the proprietor of the design when registered, it also says that in case the original copy of the certificate is lost the Controller can furnish one more copy.
Things that can't be enrolled as a design under the Act
- Signs, seals or banners of any nation.
- Size of any article, whenever changed.
- Structures and buildings.
- Incorporated circuits' format designs.
- Trade Variation.
- Any guideline or method of development of any article, for example, marks, tokens, kid's shows, cards, and so forth.
- Books, schedules, certificates, coats, structures and different archives, welcoming cards, maps and plan cards, postcards, flyers, stamps, medals, dressmaking designs.
- A mechanical contraption.
- Workshop modifications of segments of a get-together.
- Portions of any article which isn't produced and sold independently.
Effects of disclosure on Copyright
Section 16 of this Act states that if a proprietor discloses his design to any other person in good faith but later on that person takes advantage of the proprietor’s design for placing orders/ accepting orders with the same design or disclose it any other way, then it won't be considered as the publication of design.
Cancellation of the registered Design
Section 19 describes cancellation of registration it states that any person can cancel the registration of their design by just presenting a petition to the Controller on one of the following grounds-
a) That the design has already been registered in India
b) That it has been published in India or any other country before the date of registration
c) That the design is not registerable under this Act
d) That the design is not an original or new original design
e) It is not a design as defined under clause (d) of section 2
Section 19 (2) states that An appeal can be made from any order of Controller under this section to the High Court, and the Controller may at any time refer any such petition to High Court.
Industrial and International Exhibition
Section 21of Design Act states the provision of exhibition
The exhibition of a design, or of any article to which a design is applied, at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette,
or the publication of a description of the design, during or after the period of the holding of the exhibition,
or the exhibition of the design or the article or the publication of a description of the design by any person else-where during or after the period of the holding of the exhibition, without the privity or consent of the proprietor, shall not prevent the design from being registered or invalidate the registration thereof:
So to avail the benefits of this provision the proprietor has to give the Controller a notice in the prescribed form and file an application for registration of the design within 6 months from the date of the first exhibition.
Section 22 states that-
(I) During the existence of copyright in any design, it shall not be lawful for any person
(a) for sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything to enable the design to be so applied; or
(b) to import for sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof, or
(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.
So, under the aforementioned situations, a proprietor can file a suit of injunction and damage recovery suit against the person, and this will be entertained in court for the period between the registering date and expiry date of the copyright.
Section 21 (2) describes the remedies if the aforesaid situation takes place
person liable for piracy will have to pay a sum of 25,000 as a contract debt, however total sum recoverable shall not exceed fifty thousand rupees.
Proprietor can file a suit of the injunction and if he wins he can claim the damages awarded by the court.
Overlapping between copyrights and trademark
Overlapping between Copyrights and Trademark
The difference between copyrights and trademarks is very menial, sometimes it becomes difficult to choose between them because most of the times it is applied on the same products hence, they overlap. This can happen because they both provide different type of legal protection. Overlap is very common this happens frequently on websites, books etc. Trademark protects the brand of a company while copyright protects the music of the content, text. Trademark is an imprint fit for being represented to graphically and which is fit for distinguishing the products or services of one individual from those of others.
The function of a trademark is the identification of the source, quality and act as an advertising symbol.
Section 2(1)(b) of the Trade Marks Act, 1999, defines a trademark as a mark which can be graphically represented and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.
Copyright is a heap of rights vested in the creator/proprietor/maker to do or approve others do certain demonstrations according to their works. Copyrights secure the outflow of the thought however not simply the thought. It's solitary when the articulation is in some unmistakable design and is unique, it gets protected. There is no compelling reason to register the copyright. In any case, there are sure focal points to do as such. Registration makes an assumption of proprietorship and an assumption that copyright stays alive in the work.
For example, A product design can be protected as and a two-there-dimensional imprint, trade dress, design patent, enlisted designs, unregistered designs or a work of applied art under copyright law. The overlap among trademarks and other protected intellectual property rights is all over the place—regardless of whether in registration, requirement or commercialization.
A trademark, as used in web journals and social media life, can include rights of publicity and privileges of privacy. A geographical indication can be registered as such or protected as a collective or certification mark, under passing off or unfair competition law. An artistic work can be registered as a trademark, whether or not it is protected under copyright law.
About the Author: This Law Notes is prepared by Ms. Priyanshi Kholia, student of Aligarh Muslim University and was an intern at MyLawman. She can be reached at email@example.com.
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