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    BlogDesign Patent: Everything You Need to Know

    Design Patent: Everything You Need to Know

    -Abhinav Shukla

    ABSTRACT

    An item needs to be visually appealing to attract buyers. The articles are more marketable when they have visual appeal. An article’s design needs to be aesthetically pleasing to be protected. A design is therefore mostly of an aesthetic nature. Although a product’s design may also include technical or functional elements, industrial design, as a subset of intellectual property law, exclusively relates to the finished product’s aesthetic qualities and is unrelated to any technical or functional elements. So, from the standpoint of intellectual property law, an industrial design primarily refers to a product’s decorative or aesthetic features.

    INTRODUCTION

    The creative output of the human mind is known as Intellectual Property. Its protection is primarily intended to stimulate and reward creativity while also advancing science, technology, the arts, literature, and other creative endeavors. If Intellectual Property rights are not protected, a country’s economic and technical development will end. As a result, the importance of intellectual property is essential to a country’s industrial and economic progress.

    Intellectual property refers to knowledge that can be used to create tangible goods simultaneously in an infinite number of copies at various locations throughout the world. The property is not contained in those copies, but rather in the information they reflect.

    According to article 2(viii) of the convention establishing the World Intellectual Property Organisation(WIPO) 1967, intellectual property includes rights relating to

    (i) literary, artistic and scientific works;

    (ii) performance of performing artists, phonograms, and broadcasts;

    (iii) inventions in all fields of human endeavor;

    (iv) scientific discoveries;

    (v) industrial designs;

    (vi) trademarks, services marks, and commercial names and designations;

    (vii)protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields. Copyright, trademarks, service marks, geographical indications, patents, utility models, plant varieties, industrial designs, trade secrets, layout designs for integrated circuits, etc. are all examples of intellectual property.

    DESIGNS

    Design refers to any feature added to an object, whether it be two-dimensional, three-dimensional, or both, by any industrial method or means, whether manual, mechanical, or chemical, alone or in combination, that appeals to and is evaluated simply by the eye. Design is applied to an article in two dimensions or three-dimensional or three-dimensional form or both forms. Thus, as a general rule, a design consists of:

    (I) three-dimensional feature, such as the shape of the product;

    (II) two-dimensional features, such as ornamentation, patterns, lines, or color of a product; or

    (III) a combination of one or more features.

    The aspects of the design must “appeal to and be judged entirely by the eye” in the finished product. A good design subject must be visually appealing, but it need not be a creative endeavor or have editorial merit.

    The aspects of the design must “appeal to and be judged entirely by the eye” in the finished product. While it is not necessary for a successful design subject to be a creative creation or to have an aesthetic quality, it must be visually appealing.

    The following are excluded from the definition of design:

    1. Any mode or principle of construction
    2. Anything which is a substance a mere mechanical device
    3. Any trademark
    4. Any property mark as defined in section 479 of the Indian Penal Code, 1860:( A mark used for denoting that movable property belongs to a particular person is called a property mark)
    5. Any artistic work as defined in section 2(c) of the Copyright Act, 1957:

     “Artistic work”[1] means, —

    i) a painting, a sculpture, a drawing (including a diagram, map, chart, or plan), an engraving, or a photograph, whether or not any such work possesses artistic quality;

    ii) a 4[work of architecture]; and 1[work of architecture]; and”

    iii)  any other work of artistic craftsmanship;

    ADVANTAGES OF DESIGN PATENT

    1. Such patents are cheaper than other patents;
    2. By filling out an application for Patent Registration on your Design, you can save your design from being copies;
    3. Such Patents have zero maintenance fee if the Design is granted as a Patent;
    4. The rate of allowance is higher, and Patents of design can usually be obtained much faster;
    5. Such Patents are usually considered to be advantageous to stopping or preventing wholesale copy. They can also be used to protect against the violation of product designs.

    HISTORICAL BACKGROUNDS OF DESIGN LAW

    The Patterns and Designs Protection Act of 1872 was the country’s first design law. The act granted the sole right to manufacture, market, and use the innovation in India or granted others a temporary license to do so to Indian inventors of new patterns and designs. The Innovations and Designs Act of 1888, which revised and consolidated the law relating to the protection of inventions and designs and contained provisions dealing with designs in a separate part, came after the Act of 1872.

    The British Patents and Designs Act, 1907, which served as the model for the Indian Patents and Designs Act, 1911, succeeded the Act of 1888. The patent provisions of the 1911 Act were repealed by the Patents Act of 1970. Designs Act of 1911 was repealed by the Designs Act of 2000. The law becomes effective on May 11, 2001. The Design office is housed in the Patent Office in Kolkata.

    REGISTRATION OF DESIGNS

    Section 4 of the Act relates to the prohibition of registration of certain designs. A Design qualifies for registration only if ­–

    1. It is new or original;
    2. It has not been disclosed to the public
    3. It is significantly distinguishable from known designs or combinations of known designs; and
    4. It does not comprise or contain scandalous or obscene matter[2]
    5. Its use would not be contrary to public order or morality[3]

    A request for design registration must be made to the Controller of Designs. If a design does not contravene section 4 of the Designs Act, 2000, the Controller of Design may register it upon the proprietor’s request.

    The controller is responsible for arranging for the publishing of a design’s required particulars after it has been registered. After that, the design will be available for public review.

    When a design is registered, the controller must issue a certificate of registration to the owner of the design. A design is registered on the date of application for registration.

    The patent office maintains the record of designs. Any information directed or authorized to be placed in the register of designs according to this Act shall be prima facie evidence thereof.

    DOCUMENTS FOR DESIGN PATENT REGISTRATION

    1. Name, Address, and nationality proof of the candidate,
    2. Patent Photographs or drawings in different views;
    3. Power of Attorney (can be extended within one month from the filing date);
    4. Certified copy of the priority application

    COPYRIGHT IN DESIGN AND DURATION

    A design’s registration grants the registered proprietor copyright in the design for ten years following the registration date. If the Controller receives a request for an extension of the period of copyright before the aforementioned ten years have passed in the prescribed manner, the Controller will, in exchange for payment of the prescribed fee, grant a second extension of the copyright for five years beginning with the original ten-year period. Copyright in design may only be used for a total of 15 years. The design will enter the public domain and become public property after 15 years. The registration of a design confers the following rights on the registered proprietor of a design:

    1. the exclusive right to import any article belonging to the class in which the design is registered and having applied that design;
    2. (ii) the exclusive right to sell any article in any class of goods in which the design is registered;
    3. (iii) the exclusive right to publish or expose or cause to be exposed for sale any article in any class of goods in which the design is registered;

    In Parle Products Private Limited v. Surya Food and Agro Limited, the Madras court noted that although there was some overlap between the Copyright Act and the Design Act, the two acts did not provide continuous protection as to the subject matter. This is in contrast to the Copyright Act, which only protects copyright, not monopoly production in the strict sense of the word.

    CONCLUSION

    The scope of the life span of patent applications for designs is typically thought to be quite small. Despite these limitations, design patents remain a powerful weapon for defending new product concepts. They stop your competitors from imitating the aesthetics of your designs. Features of the product are frequently just as important to your customers as the functionality itself. In conclusion, if the inventive activity involves a product with distinctive ornamental qualities, it is important to take into account the likelihood of getting a design patent. In addition to the design patent, other options for intellectual property protection should be taken into account.


    [1] Copyright Act 1957

    [2] Section 4, Designs Act, 2000

    [3] Section 35, id


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