Industrial design rights are defined as the part of the intellectual property rights that confers the rights of exclusivity to the visual designs of objects which are generally not popularly utilitarian. It safeguards the appearance, style, and design of the industrial object, such as spare parts, textiles, and furniture. According to the Industrial Design Society of America, “Industrial Design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value, and appearance of products and systems for the mutual benefit of both user and manufacturer.” As these designs consist of esthetic features, they, therefore, do not provide any protection to the technical features of the article. The origin of design rights can be traced back to the United Kingdom as the “Designing and Printing of Linen Act” (1787) explained by Edge Legal.
Designs are used in different products and across various industries like medical, handicrafts, jewelry, electrical appliances, etc. It precludes any trademark or artistic type of work. In India, the first-ever design-related legislation was enacted by the British Government, and was popularly named as the Designs Act, 1911.
Advantages of Industrial Design Rights
Industrial designs help in making any product or item more beautiful and appealing and, therefore, they help in increasing the commercial viability of the product and in increasing its market potentiality. The industrial design registration helps in safeguarding the ornamental or esthetic elements of the article.
Whenever an industrial design is being registered, it gives an exclusionary right to the owner against unauthorized use, like copying or imitation, by a third party without his consent. This in turn facilitates a fair flow of investment. An effectual system also helps in benefiting the public by encouraging fair and effective competition and trading practices, which, at large, bolster creativity, and the final result comes in the form of attractive and beautiful products. Safeguarding of industrial designs help in the overall economic development, which promote creativity in the industrial arena.
The essential requirements for the registration of a design
- The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to a new subject matter. However, if the design for which the application is made does not involve any real mental activity for conception, then registration may not be considered.
- The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts, and installations are not registrable under the Act.
- The design should be applied or applicable to any article by any industrial process. Normally, designs of an artistic nature, such as painting, sculptures and the like, which are not produced in bulk by any industrial process, are excluded from registration under the Act.
- The features of the designs in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state.
- Any mode or principle of construction or operation or anything which is, in substance, a mere mechanical device, would not be a registrable design. For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock it is associated with cannot be registered as a design under the Act. However, when any design suggests any mode or principle of construction or mechanical or other action of a mechanism, a suitable disclaimer in respect thereof is required to be inserted on its representation, provided that there are other registrable features in the design.
- The design should not include any trademark or property mark or artistic works.
- It should be significantly distinguishable from known designs or a combination of known designs.
- It should not comprise or contain scandalous or obscene matter.
Duration of the registration of a design
The total term of a registered design is 15 years. Initially, the right is granted for a period of 10 years, which can be extended by another 5 years by making an application and by paying the fees to the Controller before the expiry of the initial 10-year period. The proprietor of the design may make the application for such extension even as soon as the design is registered.
Strategy for protection
The first to file rule is applicable for registrability of design. If two or more applications relating to an identical or a similar design are filed on different dates, the first application will be considered for registration of design. Therefore, the application should be filed as soon as you are ready with the design. After publication in the official gazette on payment of the prescribed fee of Rs. 500/- all registered designs are open for public inspection. Therefore, it is advisable to inspect the register of designs to determine whether the design is new or not. There is yet another important provision for ensuring that the design is different from anything published anywhere in the world. This is quite a strict condition.