Intellectual Property Rights Assignment session 2016-17

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERISTY

LUCKNOW

ASSIGNMENT ON

ANALYSIS OF DESIGNS ACT, 2000

(UNDER THE SUPERVISION OF SHAIL SHAKYA)

ASSIGNMENT ON ANALYSIS OF DESIGNS ACT, 2000

SUBMITTED TO: : SUBMITTED BY

SHAIL SHAKYA SHIVAM TIWARI

ASSISTANT PROFESSOR, ROLL NO. 38

FACULTY OF LAW B.COM.LLB (HONS.)

DSMNRU, LUCKNOW 5TH SEMESTER.

 Intellectual Property Rights Assignment session 2016-17

Acknowledgement
I would like to express my deepest appreciation to all those who provided me the possibility
to complete this project. A special gratitude I give to our teacher whose contribution in
stimulating suggestions and encouragement helped me to coordinate my project especially in
writing of this project.

Furthermore I would also like to acknowledge with much appreciation the crucial role of my
teachers who gave the permission to use all required equipment and the necessary material to
complete the project ”ANALYSIS OF DESIGNS ACT, 2000”. I have to appreciate the
guidance given by other teachers that has improved our presentation skills thanks to their
comment and advices.
 Intellectual Property Rights Assignment session 2016-17

TABLE OF CONTENTS

1. Introduction.......................................................................................................... 4
2. Historical background of Design Law..................................................................5
3. Meaning of design................................................................................................ 6
3.1 mere mechanical devices.................................................................................6

3.2 Eye Appeal................................................................................................7

4. Meaning of article................................................................................................7
4.1 Part of Article................................................................................................. 8

4.2 Proprietor of new and old Designs.................................................................8

5. Criteria for registration of designs.......................................................................9

6. Application for registration of designs...............................................................10
7. Copyright in designs and duration......................................................................10
8. Cancellation of registration......................................................................11
8.1 Any person interested.....................................................................................12

8.2 Design............................................................................................................. 12

8.3 Due to design not new and original............................................................... 12

8.4 Due to prior registration................................................................................. 13

8.5 Due to prior publication..................................................................................13

9. Piracy of registered designs.................................................................................14

10. Remedies against the piracy of the registered designs........................................15
10.1 Interlocutory injunction................................................................................15

10.2 No injunction................................................................................................16

10.3 Final injunctions..........................................................................................16

10.4 Damages........................................................................................................16

11. Jurisdiction of the court.......................................................................................18

12. Miscellaneous...................................................................................................... 18
13. Conclusion...............................................................................................19
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INTRODUCTION-

Design refers to the features of shape, configuration, pattern, ornamentation or composition

of lines or colours applied to any article, whether in two or three dimensional (or both) forms.
This may be applied by any industrial process or means (manual, mechanical or chemical)
separately or by a combined process, which in the finished article appeals to and judged
solely by the eye. Design does not include any mode or principle of construction or anything
which is mere mechanical device. It also does not include any trade mark or any artistic work.

An industrial design registration protects the ornamental or aesthetic aspect of an article.

Designs may consist of three-dimensional features, such as the shape or surface of an article,
or of two dimensional features, such as patterns, lines or color. Designs are applied to a wide
variety of products of different industries like handicrafts, medical instruments, watches,
 jewelry, house wares, electrical appliances, vehicles and architectural structures. An
industrial design is primarily for aesthetic features.
In the era of globalization, it is increasingly evident that the competitiveness of any enterprise
depends on its ability to innovate its product and service with an objective to distinguish itself
from its competitors in the market. It is common for manufacturers to capture product market
or create a niche for their product by differentiating, an otherwise similar product (substitutes
in terms of functionality) on the basis of ‘eye appeal’. Even if these products are not perfect
substitutes, the choice of consumers and in turn market demand; may, to a large extent,
depend on the appearance. In this respect, Industrial Designs (ID) have become a significant
element in a product’s value chain.

This allows a high potential and incentive for profitability for business through investment in
ID especially large producers. For such product segments, ‘design’ feature is an essential
component and hence is protected to avoid imitation with an intention of passing off. ID
stand at the junction of artistry and industry and are applicable to many different product
markets and nature of protection may vary from cultural artistic market to a consumer-
oriented general product market. The various arguments extended to seek protection for
design is grounded on the role of designs in maintaining and promoting competition within a
market economy.
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HISTORICAL BACKGROUND OF DESIGN LAW:-

It is significant to note that when the designs law was codified in 1842 and took its modern
day shape, copyright protection had not yet been extended to drawings, paintings and
 photographs. This came only twenty years later with the enactment of the Fine Arts
Copyright Act, 1862. Codification of copyright law was nowhere in sight and came only
seventy years later with the enactment of the Imperial Copyright Act, 1911. Until 1883, the
statutes relating to patents, designs and trade marks remained separate. They were combined
in a single enactment by the Patents, Designs, and Trade Marks Act, 1883, which repealed all
the then existing statutes in the three areas. Soon trade marks law parted company and was
separately enacted as the Trade Marks Act, 1905, leaving patents and designs to remain
together.

The Patents and Designs Act, 1907 consolidated the enactments relating to patents and
designs. The first designs legislation enacted in India for the protection of Industrial Designs
was the Patents and Designs Protection Act, 1872. It was enacted to supplement the Act of
1859 passed by the Governor General of India for granting exclusive privileges to inventors
and added protection for Industrial Design. The Act of 1872 was passed to extend similar
 privileges to the inventors of “any new and original pattern and design” in British India,
though for a very shorter duration. It included in the term “new manufacture” any new
and original pattern or design, or the application of such pattern or design to any substance or
article of manufacture". The Act, however, left undefined the expression new pattern or
design. The Inventions and Designs Act, 1898, which consolidated and amended the law
relating to the protection of inventions and designs contained provisions relating to designs in
a separate part. The (British) Patents and Designs Act, 1907, became the basis of the Indian
Patents and Designs Act, 1911.

The provision relating to patents under the Indian Patents and Designs Act, 1911, were
repealed by the Patents Act, 1970 − a post- Independence updation and consolidation of the
 patent law. The design provisions of the Indian Patents and Designs Act, 1911 continued,
with some consequential amendments, with the title as the Designs Act, 1911. The new
Designs Act, 2000 has been passed by the Parliament to make the Design Law in India
TRIPS compliant.
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MEANING OF DESIGN:-
Design as per Section 2(d) of the Designs Act, 2000 means only the features of shape,
configuration, pattern or ornament or composition of lines or colour or combination thereof
applied to any article whether 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 or construction or anything which is in substance a mere mechanical
device, and does not include any trade mark, as define in clause (v) of sub-section of Section
2 of the Trade and Merchandise Marks Act, 1958, property mark or artistic works as defined
under Section 2(c) of the Copyright Act, 1957.
In Polymer Paper Ltd. vs. Gurmeet Singh and Others1 , the Delhi High Court held that the
industrial drawings and designs in which copyright was claimed were for purpose of
manufacturing of filter related machines or components and as such clearly fell within the
meaning of design as defined in the Designs Act, 2000. Since the design was not registered
under the Designs Act, the plaintiff could not claim copyright therein.

WHAT ARE NOT DESIGNS:-

As stated in the definition of the design above, design does not include:

(i) any trademark, as defined in Section 2(zb) of the Trademarks Act, 1999, or
(ii) any property mark, as defined in Section 479 of the Indian Penal Code, 1860, or
(iii) any artistic work, as defined in Section 2(c) of the Copyright Act, 1957.

[Artistic Work means

(i) A painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving or a
 photograph, whether or not any such work possesses artistic quality.
(ii) Any work of architecture i.e. any building or structure having an artistic character or
design or any
mode for such building or structure.
(iii) Any work of artistic craftsmanship (Section 2(c)).
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An illustrative list of non-registrable designs is as under:

  book jackets, calendars, certificates, forms and other documents.

 dress making patterns, greeting cards, leaflets, maps and plan cards.

  post cards, stamps and medals.

 labels, tokens, cards and cartoons.

 any principle or mode of construction of an article.

 mere workshop alterations of components of an assembly.

 mere change in size of article.

 flags, emblems or signs of any country.

 layout designs of integrated circuits.

MERE MECHANICAL DEVICE:-

A mere mechanical device or functional design is not registrable. While pattern or an
ornament would ordinarily be applied to an article; shape and configuration becomes the
article itself. Design in that sense relate to the non- functional feature of the article.
Therefore, by necessary corollary, a design which has functional attributes cannot be
registered under Designs Act. This is the essence of the section 2(d) of the Designs Act. The
 protection under the Designs Act is granted only to those designs which have an aesthetic
value or otherwise appeal to the eye. There may be however cases where the designs while
fulfilling the test of being appealing to the eye is also functional.
2
In Fishers Stoves Inc. v. All Nighters Stoves Works Inc. the defendants were held not to be
guilty of the infringements of the plaintiff’s design, as it was a functional one since plaintiff’s
advertisement emphasized the functional nature of the features.

EYE APPEAL:-
The eye alone is to be the judge of identity for the purpose of deciding whether a particular
design has been anticipated or not by another has long been settled law. The design should be
 protected provided it was not merely an analogous and that the test of novelty is the eye of
the judge who must place the two designs side by side and see whether the one for which
novelty is claimed is new.
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no right to institute a suit or proceeding in respect of piracy of design or infringement

copyright, which has been committed between the date on which the design ceased to
have effect and the date of restoration of the design. Piracy of a Design means the
application of a design or its imitation to any article belonging to the class of articles in
which the design has
 been registered for the purpose of sale or importation of such articles without the written
consent of the registered proprietor. A registered proprietor can institute a suit for
injunction as well as recovery of damages against any person engaged in piracy of the
registered design.
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BIBLIOGRAPHY/ REFERNECE

Books

 Designs act ,2002

 Intellectual Property Rights (Singhal law Publication)

 Ahuja, V.K. law relating to intellectual property rights  ( L exi snexi s) student

edition

Web Sources

1. www.justicusindia.blogspot.in

2. www.lawyersclubindia.com

3. www.legalservicesindia.com