In this article, we get a better understanding of what is the definition of a design under intellectual property laws and how it is protected in India.
Intellectual property rights have, in a very short time, become one of the most heavily regulated and legally protected rights in the world of business and commerce. Protecting the originality of a product, be it the brand name, the technology or its artistic attribute, is something that has been agreed to be critical at an international level. There have been several conferences organised under the banner of the UN where several countries have participated and signed treaties, agreeing to have common conventions with regards to protecting the intellectual property rights of businesses across borders.
The three most commonly recognised intellectual properties are trademarks, copyrights and patents. Trademark refers to the name or symbol under which a business operates. Copyright refers to any work of literature, music or visual art created for commercial purposes. And patent refers to an invention or any type of industrial innovation that gives a product a unique competitive edge above its competition. However, there is a lesser known fourth intellectual property that is protected under the laws that reinforce intellectual property rights. And that is the design of a product. Let us understand what is meant by design in the first place.
Design as an Intellectual Property
The roots of intellectual property law lies in the competition laws. And the basic principle of the competition laws is to protect and promote healthy competition in fair markets. Intellectual property laws seek to protect any aspect of a product that gives it a fair edge over its competition. It is easy to understand how the three commonly known intellectual properties contribute to the commercial success of a product. A trademark gives the product a unique identity and association in the market. The uniqueness of the written word is what sells a literary work to its audiences. The unique arrangement of the music is what gives a musical composition a market value. The specific choice of shapes and colours is what makes a piece of visual art appealing. And the innovation of existing technology or invention of a completely new technology is what allows the product of that technology to give its consumers a unique experience.
But the aesthetic appearance of a product is often overlooked in terms of its contribution to the success of a product. This is what is considered the ‘design’ of a product. The design can be the shape of the product, the pattern in which the product is covered, or the unique colours in which the product is presented. This aspect of a product has now come to the fore more plainly with many products such as mobile phones and automobiles being marketed with the colour and pattern as being the identifying factors. That is why you have products being sold with unique shades of colours such as ‘forest green’ or ‘stone silver.’ In India, these are all protected by an intellectual property rights law called the ‘Designs Act, 2000.’
The Designs Act, 2000
The original Designs Act was enacted in 1911, during British rule, as the Patents and Designs Act, 1911, which in itself was based on the British Patents and Designs Act, 1907. The need for the act became urgent in the midst of the industrial revolution where trading companies sought to protect the industrial designs of their machines and the patterns and colours of their textiles, which was one of the most traded items during the industrial revolution. The Patents Act was enacted in independent India in 1970, hence repealing all patent related provisions of the Patents and Design Act, 1911, hence leaving only the design related provisions of the act as valid. After the treaties that India signed with the other countries under various international agreements such as the Trade Related Intellectual Properties (TRIPS) agreement, which introduced certain new provisions to enable open markets which protected the intellectual properties of businesses across borders, there was a need to revise the provisions regarding design protection as well. And so the Designs Act, 2000 was enacted, repealing the Designs Act, 1911.
This law seeks to protect any unique ‘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 trademark.’
In simple words, any unique aesthetic design that distinguishes a product and is not related to the trademark of the product or the functionality of the product is protected under the Designs Act. The definition is a residual definition as it says that any design that doesn’t fall under the definition of a trademark under the trademark act, or patent act or copyright act, is protected under the designs act.
Registration Process
Like all other intellectual property, in order for a design to be protected, it must be registered with the Controller of Designs in the Patents Office. It involves filling a form called ‘Form-1’. This form can be filled and filed online on the online portal of the government. Once the application is scrutinised for its uniqueness and all the documents needed to process the application have been found to be in order, the application is approved and the design is registered. Once registered, the design is then protected from ‘piracy’ for a period of ten years. Any person found guilty of piracy will have to cease and desist from any further use of the design and will have to pay a penalty of ₹ 25,000 to the registered owner of the design.
Conclusion
Intellectual property is intangible. The ownership of such property can be easily disputed and contended. Hence it is very important to maintain records with regard to the intellectual property very carefully in order to prove ownership. Now is no specific mention of what constitutes proof of ownership in any of the acts. So it is always best to consult with an expert in intellectual property law who has experience in dealing with the office of the Controller so as to be able to guide you as to how to maintain the documentation while developing a design and help you with the registration of the design. If you are looking for any kind of help or guidance with regard to protection of your design, then get in touch with vakilsearch and we will connect you with our team of intellectual property experts to address your requirements.
Read More:
- What is Industrial Design Registration ?
- Is it Worth to register a Design in India
- Procedure to Register a Design in India
