Industrial Design Rights
Industrial design rights are defined as the part of the intellectual
property rights which confers the rights of exclusivity to the visual
designs of objects which are generally not popular utilitarian. It
safeguards the appearance, style, design of the industrial object such as
spare parts,
textiles, furniture. According to the Industrial Design Society
of America (IDSA), "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 the
aesthetic features therefore they do not provide any protection to the
technical features of the article. The origin of design rights can be traced
back in the United Kingdom as 'Designing and Printing of Linen Act' (1787).
Designs are used in different products and across the various industries
like medical, handicrafts, jewelry, electrical appliances etc. It precludes
of any trademark or artistic type of work. In India the ever first design
related legislation was enacted by the British Government and was popularly
named as the Designs Act, 1911. The Hague Agreement in concern to the
international deposit of industrial designs, the WIPO administered treaty,
the procedure of the international registration has been laid down. The
applicant intended to enjoy the industrial design rights can file the
application with the WIPO or in the national office of the nations which are
member of the treaty. Due to the application filing with the WIPO, the
designs will be protected in various member nations of the treaty. If the
right holder wants to protect its rights in multiple jurisdictions then it
is required to seek protection separately from each nation. India has still
not accepted the Hague System for the International Registration of
Industrial Designs, which offers the industrial design owner the right of
protecting its design product in various countries on mere filling of the
application with the international bureau of the WIPO.
Advantages of Industrial Design Rights
Industrial designs help in making any product or item more beautiful and
appealing ,henceforth they help in increasing commercial viability of
product and increases its market potentiality. The industrial design
registration helps in safeguarding the ornamental or aesthetic elements of
the article. Whenever an industrial design is being registered it gives an
exclusionary rights to owner against unauthorized use like copying or
imitation by third party without his consent. This in turns facilitate fair
flow of investment. An effectual system also helps in benefiting public by
encouraging fair and effective competition and trading practices which at
large bolster the 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.
Industrial Design Rights in India
In present scenario, the Designs Act, 2000 and the Designs Rules, 2001 are
governing the India's design law. The industrial design registration grants
the proprietor the exclusionary rights of selling, importing and applying it
to any product. India has adopted the 'first to file' system, which means
that the right holder should file the application on the earliest point of
time to rule out the possibility of any other person claiming for the rights
of the intended designs. All such persons can apply for the industrial
design rights if they are the proprietor of the design and as far as the
design is new, not previously published in any nation, reproducible through
the industrial means, not against to the public order, distinct from the
known designs, not consists of any obscene material, eye catching. According
to the designs law in India, the proprietor can file for the design
application only if they have their business center in India otherwise they
are required to file the application through the attorney/agent who will in
turns design search, prepare file and finally done the prosecution of the
application. The applicant or its assignee can also file the application
directly with the filling of the requisite information. Applicants will be
examined by the design offices for ascertaining the availability of the
intended designs.
The applicant must respond to any objection within the period of 3 months
and if he fails to comply with this time limit then the application would be
considered to be rejected. Therefore, on the basis of the responses of the
objections filed by the applicant, the Controller of Designs determines that
whether the application should be accepted or canceled or should be put up
for the hearing. The registration of design is valid for the period of 10
years which can be extended further for 5 years on the payment of renewable
fees. One can transfer the rights of the industrial designs to other person
or party with the help of an assignment, transmission or license. Registered
designs are kept to be open for public inspection only after they publish in
the office gazette by paying the prescribed fees.
There are some artistic work which is not possible to be registered as the
design- a painting, a sculpture, a drawing (including a diagram, map, chart
or plan), an engraving or a photograph, whether or not any such work
possesses artistic quality, a work of architecture, any other work of
artistic craftsmanship. In case of the piracy of the registered designs,
then the person who has contravene the copyright in the design would be held
liable for the fine not exceeding to Rs.25,000 and maximum to Rs.50,000. The
registration of design can be canceled at any time after filing the
cancellation petition with the prescribed fees to the Controller of Designs.