industrial design
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Industrial DesignIndustrial Design
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Evolution of CompetitionEvolution of Competition
Traditional product Traditional product Traditional product Traditional product
Technology Technology Technology Technology
Pricing of productPricing of productPricing of productPricing of product
Quality of ProductQuality of ProductQuality of ProductQuality of Product
Design differentialDesign differentialDesign differentialDesign differential
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“When companies are competing
at equal price
&
functionality
Design is the only differential
that matters”
––Mark Dziersk, Mark Dziersk, quoted in quoted in
TIME MagazineTIME Magazine
What is an industrial DesignWhat is an industrial Design
It is a new or original idea in
relation to the features of
shape, configuration, Pattern,
Ornament, Composition of lines
or colours or combination
thereof applied to any article by
an industrial process
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It signifies something solid (in
three dimensions) where an
idea is incorporated into the
article
Example - feeding bottle
Shape and configurationShape and configuration
� It relates to something two dimensional
Example- engraving on metal or like
ornamentation on carpet by various
geometric figures in combination of color
etc.
�Mere painting of natural scenes or like on
plain paper- is not an industrial design
Pattern, OrnamentPattern, Ornament
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Business (Idea) point of view:
� Make your product appealing to consumers
� Customize products in order to target different
customers (e.g. Swatch)
� Develop the brand (e.g. Apple ’s « Think
Different » strategy; i Pod)
Industrial DesignsIndustrial Designs
Department of IP &P covers
The Patents Act, 1970 (as amended in 2005)
The Patents Rules, 2003 (as amended in 2006)
The Designs Act, 2000The Designs Act, 2000
The Designs Rules, 2001 (as amended in 2008)The Designs Rules, 2001 (as amended in 2008)
The Trade Marks Act 1999
The Trade Marks Rules 2002
The Geographical Indications of Goods (Registration &
Protection) Act, 1999
The Geographical Indications of Goods (Registration &
Protection) Rules, 2002,
Department of Education covers
The Copyrights Act 1957 (amended in 1999)
Legislative Framework of IP Legislative Framework of IP
AdministrationAdministration
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�Exclusive right to apply design to the
article in the class in which design is
registered.
�Better protection and can sue for piracy of
design.
� Licensing of design as legal property for
consideration or royalty.
Benefits of RegistrationBenefits of Registration
�Scope of definition of terms ‘Article’ &
‘Design’ enlarged
�Addition of definition of the term ‘Original’
� Introduction of delegation of powers to
Examiners & other Officers by Controller
�Codification of non- registerable Designs
Designs Act, 2000 Designs Act, 2000 -- Salient Features Salient Features
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�Removal of secrecy period of two years for
a registered Design
�Public inspection available after notification
�Rights of Registered Proprietor defined
�Provision of Restoration of Lapsed Design
�Electronic Register of Design
Designs Act, 2000 Designs Act, 2000 -- Salient Features Salient Features
� Initial term of protection for 10 years,
extendable by 5 years on request
�Provision for preferring Appeal on the
Controller’s order before High Court
�Substitution of Applicants before registration
of design
�Additional grounds for Cancellation of design
Designs Act, 2000 Designs Act, 2000 -- Salient Features Salient Features
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�Registration of assignments/transfer of right
made mandatory
�Penalty for piracy of registered design
enhanced
� Inclusion of Paris Convention Countries apart
from Commonwealth Countries for priority
Designs Act, 2000 Designs Act, 2000 -- Salient Features Salient Features
Sec 2(d) Design:
Means only features of shape,
configuration, pattern, ornament or
compositions of lines or colours appliedapplied toto
anyany articlearticle whether in two or three
dimensional or both by any industrial
process or means whether manual,
mechanical or chemical, separate or
combined,………
The Designs Act, 2000 The Designs Act, 2000 -- DefinitionsDefinitions
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Sec 2(d) Design:
……… which in the finished article appeal
to and judged solely by eye but does not
include any mode or principle of
construction and does not include any
Trade Mark or Property Mark and Artistic
work as defined in clause (c) of section 2
of the Copyright Act’1957.
The Designs Act, 2000 The Designs Act, 2000 -- DefinitionsDefinitions
ArtisticArtistic workwork means-
(i) A painting, a sculpture, a drawing
(diagram, map, chart or plan) or
engraving or photograph……
(ii) Any work of architecture and
(iii) Any other work of artistic craftsmanship.
Such work isis notnot aa subjectsubject mattermatter ofof anan
industrialindustrial designdesign
Sec 2 (c ) Sec 2 (c ) –– Copyright ActCopyright Act
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Sec 2(a) Article:
Means any article of manufacture and
any substance, artificial or partly
artificial and partly natural and includes
any part of article capable of being made
and sold separately
The Designs Act, 2000 The Designs Act, 2000 -- DefinitionsDefinitions
Sec.4 - A design which-
(a) is not new or original;not new or original; or
(b) has been disclosed to the public has been disclosed to the public any where 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; or
(c) is not significantly distinguishablenot significantly distinguishable from,known designs
or combination of known designs; or
(d )(d ) comprises or containscomprises or contains scandalous or obscene matterscandalous or obscene matter
shall not be registered shall not be registered
Prohibition of registration of certain designsProhibition of registration of certain designs
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A Design should:
� Be New or Original
� Be Distinguishable from known designs
� Be applied to an article
� Not be disclosed to public in any form
� Appeal to eye
� Not comprise of obscene matter
� Not be contrary to public order or morality
Requirements for RegistrationRequirements for Registration
� Novelty is judged solely by eye w.r.t.
external appearance of the finished
article
� Neither constructional details nor utility of
article are relevant for registration
� Novelty may reside in its application to
article
� Absolute novelty- i.e. Not publicly known
or used in India or elsewhere.
New or OriginalNew or Original
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In relation to design means:
originating from the author of such design
and includes the cases which though old in
themselves yet are new in their application
[sec 2(g)]
OriginalOriginal
�When design to applied to the inner portion of the
article not visible or noticeable in finished article.
� Principle or mode of construction of the article
� Building and structures
� Sole functional features
� Part of an article not sold separately
� Variation commonly used in trade
� Stamps, Labels, Tokens, Medals, Trade Marks ,
Property Marks, Cards, Cartoons.
�Mere change in size.
� Designs contrary to public order or morality or
scandalous
� Computer chip, Integrated circuit designs
What are not RegistrableWhat are not Registrable
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� Calendar, certificates, forms, greeting cards,
leaflets, maps, building plan, medals
� Mere mechanical contrivance
� Basic shape, variations commonly used in the
trade
� Mere workshop alteration
� Flags, emblems, or signs of any country,
computer icons
The following articles are not registrableThe following articles are not registrable
� Applicant : Applicant means any individual or legal entity.
� Application : One application in prescribed form for one design in one class with prescribed fee.
� Representation: Four sets of Representation with the different views of the article for clear understanding the nature of article.
� Declaration :- Statement of novelty and disclaimers.
� Power of Attorney : (If required).
Filing RequirementsFiling Requirements
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KOLKATA
H.O.Receiving & Examination
Receiving Center Receiving CenterReceiving Center
Delhi Mumbai Chennai
Filing of Design ApplicationFiling of Design Application
� Application form 1 with requisite fee of Rs. 1,000/-
� Four sets of Representation sheets indurable paper of A4 size, pasted with thephotographs/drawings of the article fromdifferent angles.
� Power of attorney (if required)
� Priority document (for convention Appln.)
Particulars required for applicationParticulars required for application
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� A4 Size white durable paper
� Sheet nos. To be mentioned in each sheet
� Photographs/line diagrams/ computer graphics of the article
� Name of the views
� Statement of novelty
� Disclaimer
� Signature of the applicant/ agent
� DATE
Preparation of the Representation SheetPreparation of the Representation Sheet
(1) STATEMENT OF NOVELTY
(2)DISCLAIMER
Signature of Applicant
Name of the Applicant
XYZ, PVT.LTD.
Date :-
No. of sheet - 05
Sheet No.- 01
Side view
Representation SheetRepresentation Sheet
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Name of the Applicant
XYZ, PVT.LTD.
No. of sheet
Sheet No.-
Novelty resides in the shape and
configuration of the “Pressure cooker” as
illustrated.
Or
Novelty resides in the shape and
configuration particularly in the portions
marked ‘A’ & ‘B’ of the “Pressure cooker”
as illustrated.
Statement of NoveltyStatement of Novelty
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� No claim is made by virtue of this registration to any right to
the use as a trade mark of what is shown in the
representations.
� No claim is made by virtue of the registration in respect of
any mechanical or there action of the mechanism whatever
or in respect of any mode or principle of construction of the
article.
� No claim is made by virtue of this registration to any right to
the exclusive use of the words, letters, numerals, flags,
crowns, etc. appearing in the design.
Statement of Disclaimer Statement of Disclaimer
Example of RepresentationExample of Representation
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The novelty resides in the shape & configuration of the 'CHAIR' as illustrated.
No claim is made by virtue of this registration in respect of any mechanical or other action of any mechanism whatever or in respect of any mode or principle of construction of the Article.
No claim is made by virtue of this registration to any right to the exclusive use of the words, letters, numbers, or trade marks appearing in the representation.
Dated: Signature of the applicant/agent(Name of the Signatory)
(SPECIMEN OF REPRESENTATION SHEETS)
(SPECIMEN OF REPRESENTATION SHEETS)
The novelty resides in the shape & configuration of the 'CHAIR' as illustrated.
No claim is made by virtue of this registration in respect of any mechanical or other action of any mechanism whatever or in respect of any mode or principle of construction of the Article.
No claim is made by virtue of this registration to any right to the exclusive use of the words, letters, numbers, or trade marks appearing in the representation.
Dated: Signature of the applicant/agent(Name of the Signatory)
RIGHT SIDE VIEW LEFT SIDE VIEW
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No. of
entry
On What possible Form
No.
Fee (Rs.)
1 On application for registration of Design under
Section 5 & 441 1000.00
2 On claim under Section 8(1 ) to proceed as an
applicant or joint applicant2 500.00
3 On application for extension of copyright under
Section 11(2)3 2000.00
4 On Application for Restoration of lapsed design
under Section 12(2)4 1000.00
5 Additional fee for Restoration --- 1000.00
6 Inspection of Registered design under Section
17(1)5 500.00
7 On request for information of design when
registration No. is given under Section 18.6 500.00
8 On request for information of design when
registration No. not given .7 1000.00
THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
Contd …
No. of
entry
On What possible Form
No.
Fee (Rs.)
9 On application for cancellation of design under
Section 198 1500.00
10 Notice of intended exhibition or publication of an
unregistered design under Section 219 500.00
11 Application for registration of a document in
Register of Designs under Section 30(3):
(i) In respect of one Design;
(ii) For each additional Design
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500.00
200.00
12 One application for entry of name of proprietor or
part proprietor in Register of Designs under Section
30:
(i) In respect of one Design;
(ii) For each additional Design
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500.00
200.00
13 On application for entry of mortgage or license in
Register of designs under Section 30:
(i) In respect of one Design;
(ii) For each additional Design
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500.00
200.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
19
No. of
entry
On What possible Form
No.
Fee (Rs.)
14 Application for entry of notification of a document in
the Register of designs under Section 30 and Rule
37:
(i) In respect of one Design;
(ii) For each additional Design
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500.00
200.00
15 On request for correction of clerical error under
Section 2914 500.00
16 On request for certificate under Section 26 and
Rule 4215 500.00
17 On application for certified copy of Registered
design Under Section 17(2)16 500.00
18 On application for rectification of Register of
design Under Section 3117 500.00
19 On application for extension of time for filing
priority Document under Rule 15.18 200.00
(per month)
20 On Notice of opposition under Rule 40 19 100.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
No. of
entry
On What possible Form
No.
Fee (Rs.)
21 Notice of intention to attend hearing under Rule
29 and 4020 500.00
22 Form for authorization of agent or other person. 21 ----
23 On request to alter name or address or address
for Service in the Register of design under Rule
31.
22 200.00
24 On request for entries of two addresses in the
Register of Design.23 200.00
25 On petition under Rule 46 for amendment of any
document--- 500.00
26 On petition under Rule 47 for amendment of any
document--- 500.00
27 Inspection of Register of Design under Rule 38 (in
respect of each design).--- 250.00
(Contd. from previous slide…)THE FIRST SCHEDULE FEESTHE FIRST SCHEDULE FEES
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STAGES FROM FILING TO REGISTRATIONSTAGES FROM FILING TO REGISTRATION
Abandoned
Examination Filling of
Application
Numbering &
Dating of
Application
Noncompliance
of Objection (s)
Communication
of Objection (s)
Removal of
Objection (s)
Hearing if
objection (s) is
/are contested
RefusalRefusal
Re- Examination
Appeal to
High Court
Waiving /
removal of
Objection (s)Acceptance
In case of allowance
of appeal
Notification in the
Official Gazette
Issue of Certificate
Consumer Products
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Pharmaceutical Product
Textile & Jewellery
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Shape & Configuration signify something solid Shape & Configuration signify something solid
where an idea has been incorporated into the where an idea has been incorporated into the
article.article.
Contd.
Example with a toothbrush
Pattern or ornament or composition of colour / Pattern or ornament or composition of colour /
lines relates to something two dimensional.lines relates to something two dimensional.
Contd.
Example with a toothbrush
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Contd.
When a figure, showing the feature of the design of When a figure, showing the feature of the design of
an article, is drawn on a paper it will be regarded as an article, is drawn on a paper it will be regarded as
if design has been applied to the article sought to be if design has been applied to the article sought to be
registered. registered.
Example with a toothbrush
A new shape applied to toothbrush which A new shape applied to toothbrush which
produces a new visual appearance on the produces a new visual appearance on the
article.article.
Contd.
Example with a toothbrush
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Design means a conception or suggestion or idea Design means a conception or suggestion or idea
of a shape or pattern which can be applied to an of a shape or pattern which can be applied to an
article by industrial process or means.article by industrial process or means.
Contd.
Example with a toothbrush
Any mode or principle of construction or operation Any mode or principle of construction or operation
or anything which is in substance a mere or anything which is in substance a mere
mechanical device, would not be registerable mechanical device, would not be registerable
design.design.
Contd.
Example with a toothbrush
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The features of the design in the finished article The features of the design in the finished article
should appeal to and are judged solely by the should appeal to and are judged solely by the
eye.eye.
Contd.
Example with a toothbrush
The design should be applied or applicable to The design should be applied or applicable to
any article by any industrial process.any article by any industrial process.
Contd.
Example with a toothbrush
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Designs of artistic nature like paintings, Designs of artistic nature like paintings,
sculptures and the like which are not produced sculptures and the like which are not produced
in bulk by any industrial process are excluded in bulk by any industrial process are excluded
from registration under the Act.from registration under the Act.
Example with a toothbrush
OVERLAP OF DESIGN,
COPYRIGHT & TRADE MARK
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Design is for aesthetic appearance. Anything functional isnot registrable as a design
Copyright in a design comes to an end if the work hasindustrial application and is reproduced more than 50 times
Is there diff. between copyright in a design and copyright ina drawing. Yes.
Copyright & Design
Confusion is worse with Trade mark definition being
amended
Shape is also a trade mark – But articles like dresses,
sculpture etc., cannot come in trade marks.
However commercial products have more overlaps in
protection.
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� As per Copinger and Skone James on Copyright, a design is, in broad
terms, the plan or scheme for the appearance of an article (or a part of
an article).
� It primarily concerns with what an article looks like or is intended to look
like.
� It is not concerned with how an article performs its function. The design
of an article may be recorded in any form including the written
description, sketch, drawing, photograph or it could actually be embodied
in the article itself. “Design” has also been defined as the design of any
aspect of the shape or configuration (whether internal or external) of the
whole or part of an article.
Copinger & Skone James on Copyright, 15th Edn., Vol. 1, pg. 730
Design
� Infringement in the context of Indian Textiles, Apparels and Life Style
Industry:
Indian Textiles:
� If artistic patterns are drawn up on a piece of cloth to be used for any
purpose, including but not limited to for instance, making of garments,
bed sheets, sofa covers, table cloths, etc., then the artistic patterns
printed on the piece of cloth are protected as copyrights.
� On the other hand, if a designer of clothes creates a new pattern of
garment to be used as a fashionable attire, then the sketch/ drawing
that is drawn of the pattern of the garment is protected as a copyright.
Infringement
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� However, once the idea of the creative pattern is implemented on the
piece of cloth, then the same may be protected as a design right.
� If, the intention of the designer is to ensure that only one piece of the
garment is manufactured, then the same could also be protected as
the artistic work imprinted on the piece of cloth having copyrights.
� Alternatively, if the designer’s intention is to produce several
thousands of garments in different scheme of colours, etc., then the
intention of the designer is to use the said design in the industry.
Accordingly, the latter form of use of the same material may be
considered to be a design.
� There is an ongoing debate on the issue and a lot depends on the
manner, in which the author of the work intends to use the work.
Infringement
Indian Cases
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Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
� Allegation that the Defendants’ garments were copies of the
garments designed and crafted by the Plaintiff
� The said garments were supposed to be developed, designed
and crafted by the plaintiff as a part of their collection for the
year 2006
� The Hon’ble Delhi High Court vide order dated 21.10.2008
granted ex-parte ad-interim injunction
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
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� Defendant served notice.
� Application for vacation of stay moved claiming that both
designs are separate.
� The impugned prints are generic Jamawar Prints
� Matter is sub-judice – Referred to Mediation
Tahiliani Design Private Ltd. vs. Renu Tandon & Anr.
C.S. (OS) No. 2222 of 2008 – Before Hon’ble Delhi High Court
Cases
� Allegation of infringement of copyright as the defendant used the dress in a movie which was worn by an actress
� Importance of costumes worn by actors and actresses in a film play special role and serve purpose of promotion of the movie
� Held that all kinds of clothes worn by actors cannot be stated as Fair Use permitted under sec 52 (1) (u).
Suneet Varma Design Pvt. Ltd. Vs Jas Kirat Singh Narula &
Anr. [2007 (34) PTC 81 (Del)]
Cases
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Technological advancement made the job of
the creator easy
………it also made the job of the copier easy.
Consciousness in IPR is the only way to
prevent the latter.
ConclusionConclusion
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