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DESIGN RIGHTS

Frequently Asked Questions

Design Rights - Frequently Asked Questions: FAQ

1. WHY IS A PRODUCT DESIGN IMPORTANT?

Today the marketplace is crowded with products. It becomes a challenge to attract consumers even for products based on market leading technology.  The brand, mark or logo plays an important role.  But often it is the external appearance that may first catch the eye of a potential consumer.  Good design often wins passionate brand loyalty as in the case of Apple’s iPhone.


Design savvy businesses integrate design fully into the product development process, so that aesthetic considerations are taken into account along with the engineering aspects of the new or improved product.  They also protect the distinctive appearance of their products by registering the design.  This is true of a very wide range of products,  including high‐tech products,  such as cars,  washing machines, mobile phones, and so on.  In a well-designed product,  there is harmony between its functionality and its form,  with both adding to its value.

2. WHAT IS AN INDUSTRIAL DESIGN?

A Design refers to the features of shape, configuration, pattern, ornamentation or composition of lines or colours applied to any article, whether in two or three dimensional forms. This may be applied by any industrial process or means (manual, mechanical or chemical) separately or by a combined process, which in the finished article appeals to and is judged solely by the eye. Design does not include any mode or principle of construction or anything which is mere mechanical device. It also does not include any trademark or any artistic work.

3. WHO SHOULD APPLY FOR DESIGN REGISTRATION?

Industrial designs are relevant to a wide variety of products and industries including fashion and handicrafts, technical and medical instruments, watches,  jewellery, and other luxury items; household products, toys, furniture and electrical appliances, cars and architectural structures; textile designs; sports equipment. Industrial design is also important in relation to packaging, containers and “get‐up”  of products.

4. WHAT RIGHTS DOES A DESIGN OWNER GET?

The industrial design owner has the following rights:


  1. An industrial design provides its owner with the exclusive right to prevent unauthorized copying or imitation of the design by third parties.

  2. This includes the right to exclude all others from making,  offering, putting on the market, importing,  exporting,  using,  selling,  or stocking for such purposes by others of product in which the design is incorporated or to which it is applied.

  3. The design owner can license or sell the design as legal property for consideration or royalty.

5. WHAT IS THE TERM OF A DESIGN REGISTRATION?

Registration initially confers this right for ten years from the date of filing. It is renewable for a further period of five years.

6. WHY SHOULD SOMEONE APPLY FOR DESIGN REGISTRATION?

Design registration makes business sense when it improves the competitiveness of a business and brings in additional revenue in one or more of the following ways:

  • By registering a design, you have a greater ability to prevent it from being copied and imitated by competitors and thereby strengthen your competitive position.

  • The exclusivity provided by registration contributes to obtaining a fair return on investment in creating and marketing the relevant product, thereby improving your profits.

  • Industrial designs are business assets that can increase the commercial value of a company and its products.  The more successful a design,  the higher its value to the company and its brands.

  • A protected design may also be licensed  (or sold)  to others for a fee. By licensing it,  you may be able to enter markets that you are otherwise unable to serve.

  • Registration of industrial designs encourages fair competition and honest trade practices, promoting the production of a diverse range of aesthetically attractive products.

7. WHAT ARE THE ESSENTIAL REQUIREMENTS OF DESIGN FOR REGISTRATION?

A design should:

  1. be new and original;

  2. not be disclosed to the public anywhere by publication in tangible form or by use or in any other way before the filing date, or where applicable, the priority date of the application for registration;

  3. be significantly distinguishable from known designs or a combination of known designs;

  4. not comprise or contain scandalous or obscene matter;

  5. not be a mere mechanical contrivance;

  6. be applied to an article and should appeal to the eye;

  7. not be contrary to public order or morality.

8. WHAT CANNOT BE REGISTERED AS A DESIGN?

Designs that are primarily literary or artistic in character are not protected under the Indian Designs Act. These include:


  1. books, jackets, calendars, certificates, forms and other documents, dressmaking patterns, greeting cards, leaflets, maps and plan cards, postcards, stamps, medals;

  2. labels, tokens, cards, cartoons;

  3. any principle or mode of construction of an article;

  4. mere mechanical contrivance;

  5. building and structures;

  6. parts of any articles not manufactured and sold separately;

  7. variations commonly used in trade;

  8. mere workshop alterations of components of an assembly;

  9. a mere change in the size of the article;

  10. flags, emblems or signs of any country;

  11. layout designs of integrated circuits.

9. WHO CAN APPLY FOR REGISTRATION OF DESIGN?

Any person or the legal representative or the assignee (for example, the employer) can apply separately or jointly for the registration of a design. The term “person” includes firm, partnership, and a body corporate. An application may also be filed through an agent in which case a power of attorney is required to be filed.

10. CAN A REGISTERED DESIGN BE CANCELLED?

Any interested person can file a petition to the Controller seeking the cancellation of a registered design at any time after the registration of the design. An application for cancellation is admissible on the following grounds:


  1. the design has been previously registered in India;

  2. it has been published in India or in any other country before the date of filing;

  3. the design is not new or original;

  4. the design is not registrable under the Designs Act;

  5. it is not a design as defined under the Act

11. HOW MUCH TIME DOES IT TAKE TO OBTAIN DESIGN REGISTRATION?

An application for registration of a design should ordinarily be accepted within six months from the date of application.

12. HOW ARE DESIGNS CLASSIFIED?

Designs are required to categorized in separate classes in order to provide for systematic registration. An International classification of Industrial Designs according to the Locarno Agreement has been introduced in the Design Rules 2001 & in Design (Amendment) Rules 2008. There are classes and most of the classes are further divided into sub-classes. The classification is based upon the function of goods i.e. they are mainly function oriented.  In some specific cases, the function of the article is required to be mentioned along with the name of the article in the application form for the purpose of classification.

13. HOW ARE PRODUCTS NAMED IN AN APPLICATION?

Normally, the name of the article should be such that is common/familiar in the trade or industries. The name of the article as mentioned in the application form should correspond with the representation of the article filed.


Example: If the article relates to 'chair' or 'sofa-cum-bed', the name should be provided accordingly and should be classified under Class 6 and sub-class 1 where it states “Beds and Seats” since it is classified in function/purpose oriented manner.

WHERE COULD I SEE SOME EXAMPLES OF REGISTERED DESIGNS?

Click here to see some examples of registered designs.

Disclaimer

The information provided in this resource section does not, and is not intended to, constitute legal advice and is for general informational purposes only. 

Information provided may not constitute the most up-to-date legal or other information. 

The content in this resource section is provided "as is". BRB Legal (the “Firm”) makes no representation that the content is error-free.

This section may contain links to other third-party websites.  Such links are only for the reader's convenience; the Firm does not recommend or endorse the contents of the third-party sites.

Readers are encouraged to contact their attorney for advice regarding any particular legal matter.  

No reader of this section should act or refrain from acting based on information provided without first seeking legal advice from counsel.  

Use of, and access to, the resource section does not create an attorney-client relationship between the reader and the Firm. 

All liability for actions taken or not taken based on the contents of this booklet are hereby expressly disclaimed. 

The Firm reserves the exclusive copyright of the contents, and the same should not be circulated, reproduced or otherwise used by the intended recipient without prior permission.

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Design Rights - Frequently Asked Questions: Sales Lead
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