Designs - Registration
Designs - Registration
Designs - Registration
Design Vs Copyright
CRITERIA FOR REGISTRATION OF DESIGN
SECTION 4
A design qualifies for registration only
1.It is new or original
2. It has not been disclosed to the public
3. It is significantly distinguishable from known
design or combination of known design and
4.It doe not comprise or contain scandalous or
obscene matter
5. Its use would not be contrary to Public order and
morality
1.New or Original Section 4(a)
• The word new= design completely new, invented or
created for the first time and hitherto unknown .
• It may be existing or known design but has been
applied to particular article for the first time
Dover Limited Vs. Nurnberger Celloloid waren Fabric
Gebruder wolff
Original= person originated something, that by exercise
of intellectual activity he has started idea which had
not occurred to anyone before , that particular shape
ornament may be rendered applicable to particular
article to which he suggests shall be applied.
M/s Brighto AutoIndustries Vs Shri Raj
Chawla (ILR 1978 (I) Delhi)
• it was held by the Honorable Court ―‗new‘ is taken generally to mean as
different to what has gone before and original as something originating from
the author.
• In the matter of novelty the eye has to be the ultimate arbiter and the
determination has to rest on the general ocular impression. To secure
recognition for its newness or originality it is imperative that a design identical
with or even materially similar to the relevant design should not have been
published or registered previously.
• A slight trivial variation from a pre-existing design will not qualify it for
registration taking into account the nature involved the change introduced
should be substantial. It is no t necessary to justify registration that the whole of
the design should be new, the newness may be confined to only a part of it but
that part must be a significant one and it should be potent enough to impart to
the whole design a distinct identity, unless the registration sought for the said
part alone.
Gammeter Vs Controller of Patents and
Others (AIR 1919 Calcutta 887)
it was held the design should be protected
provided it was not merely an analogues and the
test of novelty is the eye of the judge who must
place the two designs side by side whether the
one for which novelty is claimed is new.
2.Disclosure or Publication of Design 4 (b)
• It is not necessary design should have been actually used. There will just as much be
publication if it is shown that it was known to the public without ever having been actually
put into use. Thus, publication may be of two types:
a) Publication in prior documents,
b) Publication by prior user.
Confidential Disclosure of Design
• Section 16 of the Designs Act : disclosures made prior to
the registration of a design shall not be deemed to be
publication sufficient to invalidate the copyright thereof.
They are
(1) Any disclosure made in breach of faith by someone to
whom the proprietor of the design had disclosed the
design in such circumstances as it would make contrary to
good faith for that person to use or publish design.
(2)The acceptance of first and confidential order for articles
bearing a new or original textile intended for registration
Disclosure in Exhibition – Section 21
However, the said period of six months can be extended for a further period not exceeding
three months
4.Registration and Publication(Section 7)
a. All the registered designs are entered in the Register of Designs maintained
at Patent Office, Kolkata. The register is available to public for inspection and
an e-register is also available at the official website.
b. The Register contains the following details:
i. names(s) and address(s) of proprietor(s) of registered designs;
ii. registration number;
iii. class;
iv. date of filing in India and date of filing in Convention Country (if any);
v. renewal of copyright;
vi. assignments and of transmissions of registered designs;
vii. any other matter which would affect the validity or proprietorship of the
design.
PREVIOUS YEAR QUESTIONS FROM THIS
TOPIC
1.Explain the procedure for registration under
designs Act 2000 -June 2016, December 2018
PROBLEM BASED Q:
1.A multinational company which designs shoe in
Germany is already available for sale in India with
similar design. The above said company wants to
obtain registration of design used on shoe . Will it
succeed (June 2018)-Hint refer section 4 and case
laws under that.