Why a Design or An Industrial Design
A design is defined by the ornamental appearance of an article. A design patent or an Industrial design largely relates to the shape, configuration, pattern, surface ornamentation or any combination thereof applied to an article, but not it's functionality (unlike utility patents, where the functionality is vital). A design is generally created considering several other factors such as fit, function, ergonomics e.g. a car seat.
The ornamental/aesthetic "look" of a product (not its functionality) are intended to create an emotional bond with the user.
Section 2(d) of Indian Designs Act, 2000 defines "Design" as: "only the 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 trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957)."
A design for surface ornamentation is required to coexist with the article to which it is applied, and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture. In a Design patent or Industrial Design protection, the drawings only define the scope of the IP protection.
The manufacturing sectors today are facing never before competition necessitating faster product development cycles. Thanks to the fast changing consumer preferences and increased globalization of the products that has created a sharp rise in the want for newer products. After all, today the design is playing a vital role for the success of a product in the market.
Registration of a design of an article requires the following conditions be met.
- The design is applied to an article or a product, for example, the design of a building is not registrable, but the design of doors and windows are.
- The article to which the design is applied is a manufactured item and any substance, artificial, or partly artificial and partly natural, and includes any part of a manufactured item; capable of being made and sold separately.
- The design of the article is new and original.
- The design of the article has not been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration.
- The design of the article is significantly distinguishable from known designs or combination of known designs.
- The design of the article is a substantially modified form of an existing design, not a superficial modification.
- The design of the article does not include any mode or principle of construction or anything which is in substance a mere mechanical device; the article may be a mechanical device though, but the design is judged only by its ornamental look.
- The design of the article appeals to the eye, and is judged solely by the human eye.
- The design of the article is not contrary to public order or morality.
- The design of the article does not contain any scandalous or obscene matter.
- The design of the article so applied should be used for commercial purposes and increase the marketable value of the article.
- The design of the article does not contain any property mark as defined under IPC, any trademark as defined under Trade and Merchandise Marks Act, 1958 or any artistic work as defined under Indian Copyright Act, 1957.
Dealing with a Design Search
The purpose of a design search may be to judge the novelty, assess freedom to operate, or attempt to invalidate another design protection. Our experts do not believe in using any prototype method to conduct a design search; rather we take situation based approaches to select the best search platforms in the order of their relevance to the article of design.
Together with the Design patent or Industrial Design protection databases, we go beyond to explore the product review websites, e-commerce websites, and company product catalogs to name a few.
Filing a Design Application in India
If you are satisfied that your design meets the above requirements, it is time to prepare the following documents (as necessary) for the Design application with the Controller of Designs.
- Form 1 in the prescribed format (as in Schedule-II of the Designs Rules )
- Representations should be prepared as prescribed under Rule 12, 13 and 14 of The Designs Rules and should be submitted in duplicate.
- Form-21 (Power of authority/General Power of authority)
- Form-24 in prescribed format (if small entity status is claimed) (as in Schedule-II)
- It should be accompanied with evidence of registration under MSME Act, 2006 in case of Indian entities.
- It should be accompanied with affidavit deposed by the applicant or authorised signatory as Rule 42 of Designs Rules in case of Foreign entities.
- Original Priority document under Rule 15 of The Designs Rules.
- Authenticated English translated copy of the Priority document (if original priority document is in a language other than English)
- Assignment in original (if the applicant of priority application in convention country is different from Indian applicant)
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