The provisions of a design under Section 5 of the Design Act are laid down under Section 5 of the Design Act.
The discussion over intellectual property rights first came into the public domain in England when literary writers demanded that their work be protected from plagiarism and piracy by enacting punitive laws against the ones who indulge in such acts. It wasn’t long before creative minds from other fields of art began to rally behind the cause of protecting intellectual property as well. They wanted their creativity and ingenuity to be duly credited to them by allowing them a commercial monopoly over their creation and the facility to take action against anyone who infringed such creative commercial monopoly. This created the first copyright laws.
With the advent of organized markets, commerce laws too have become a lot more specific and organized in order to protect healthy competition and fair market practices, which are the foundations of free trade. This includes protecting the creativity and ingenuity employed in commercial enterprises as well, same as they are protected for literary and artistic endeavors. With the emergence of the industrial revolution on the shoulders of scientific advancement and innovations, intellectual property laws began to become critical to businesses. Enterprises were investing huge sums of money on scientific innovation in the commercial sector to find a competitive edge over their competition. This led to the introduction of patent laws.
And with the emergence of marketing tools to capture public attention, trademark and merchandise mark acts came into the picture. Similar-looking products distinguish themselves from each other by unique brand identities such as having uncommon names or exclusive logos. This led to the creation of trademark laws.
The history behind the protection of designs actually emerged from the colonial enterprises which imported exotic textiles from their faraway colonies with exotic cultural designs and patterns. This was the cause for the inclusion of aesthetic design into the count of intellectual properties. In India, the law that protects designs as intellectual property is the Designs Act, of 2000.
The provisions of Section 5 Are as Follows.
Like all other intellectual property laws, the Designs Act protects all designs that are registered under the act. Once the design registration is done, it is issued a certificate that is valid for a period of ten years. For this duration of ten years, no one is allowed to copy or imitate the said design for any commercial purposes. If any person is caught doing so, he or she will be ordered to cease and desist from any further activity and will be subject to compensate the owner of the design with an amount that will be judged in the court but bearing a minimum compensation of ₹25,000.
The provisions for registration of a design under the Design Act are laid down under Section 5 of the Design Act.
(1) The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under this Act:
Provided that the Controller shall before such registration refer the application for examination, by an examiner appointed under sub-section (2) of section 3, as to whether such design is capable of being registered under this Act and the rules made thereunder and consider the report of the examiner on such reference.
This provision says that the power to grant a registration certificate to a design under the Designs Act, lies with the Controller. The controller’s duty is to put the application through the parameters that have been laid down to determine the eligibility of a design to be registered under the act. There are two parameters that can be noted in the beginning of this section. One, the design should be new/original. Two, the design has never been published before. So even if the design is new/original but resembles a design that has already been published before, the design cannot be registered under the Act.
(2) Every application under Sub-Section (1) shall be in the prescribed form and shall be filed in the Patent Office in the prescribed manner and shall be accompanied by the prescribed fee.
The prescribed form is called Form-1 and can be found on the government portal for intellectual property. The form has to be filled in the manner that has been laid out and all the requirements of the form in terms of information and documentation can be found in the form. There is no separate office for design since design and patents were originally covered under the same act. The laws have been separated due to the need for a larger scope for each one of them as a result of various international trade treaties. But the operation is still under the Patents office. This is where the application must be submitted.
(3) A design may be registered in not more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question.
The World Intellectual Property Organisation (WIPO) has classified all products into specific classes for the purpose of registration of intellectual property. The owner of the design must choose which product the design is going to be used commercially. A design can be registered only under one class because even to apply for registration, the owner has to demonstrate the industrial usage of the design on a product. Whichever class this product fits under is the class under which the registration must be carried out.
(4) The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person, person aggrieved by any such refusal may appeal to the High Court.
This section lays down the right of the controller to reject an application. It also lays down the right of the applicant to appeal to the high court in case of any grievances.
(5) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned.
In case any defects in the application have been pointed out and a deadline to correct has been provided and the applicant has failed to meet this deadline, then the controller will dismiss the application as abandoned.
(6) A design when registered shall be registered as of the date of the application for registration.
The certificate of registration has an expiry date. So this clause specifies that the countdown to the ten year expiry date begins from the date the application has been made and not the date on which the registration certificate was granted.
Design Certificate
Once the application has been approved and registered by the controller, a certificate is issued under section 9, which states
(1) The Controller shall grant a certificate of registration to the proprietor of the design when registered
(2) The Controller may, in case of loss of the original certificate, or in any other case in which he deems it expedient, furnish one or more copies of the certificate.
Conclusion
The procedures for the registration of intellectual property have been laid down by an international body consisting of representatives from many countries. They may be hard to understand in terms of why they are necessary and sometimes the terminology can get very technical. And as mentioned before, incomplete or defective applications stand the risk of being rejected. So it is always advisable to seek the help of an expert when it comes to filing an application for registration under any intellectual property act. If you are looking to register an original design of yours or have queries with regard to the provisions of the Designs Act, contact Vakilsearch today and we will connect you to our team of intellectual property experts to help you with your application or queries.
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