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Industrial Design/ Design Patent Filing in India, documents, information and filing requirement

“Design” as per Indian Designs Act, 2000, means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in 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 principal of construction or anything which is in substance a mere mechanical device and does not include any trademark, property mark and copyright as defined under the Indian laws.
Only those designs that are new or original are subject matter of registration in India. Designs which have been disclosed to the public anywhere 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. Further no copyright in the design shall vest in Applicant if more than 50 copies of the design has been manufactured commercially. A design is not registrable if it is not significantly distinguishable from known designs or combination of designs or if it comprises scandalous or obscene matter.
Design application in India can be classified under two categories depending upon their priority claim:
  1. Ordinary design application without any priority
  2. Conventional design application- has to be filed within 6 months from date of filing of conventional application
There are four design office in India located at New Delhi, Mumbai, Chennai and Kolkata and depending upon territorial jurisdiction where the Applicant is located, the application has to be filed. For foreign applicant the application has to be filed before the design office within whose territorial jurisdiction the agent/ attorney for applicant is located.

Following are the basic requirements for filing of a Design application in India:

  1. Name, address, nationality and particulars of the applicant (whether individual, society, trust, partnership firm or company)
  2. Class & Subclass according to Locarno classification
  3. Title of the Article
  4. Ordinarily 4 sets of Photographs/ drawings/ tracing with various views (top, bottom, front, back, side/s and perspective views) of size at least 13 by 10 cms, if by provided by print, in case of by email only one se
  5. Statement as to novelty in the article
  6. Representations illustrating the views of the article wherein the originality resides
  7. Power of authority in favour of Indian Attorney/ Advocate, to be stamped in India. It may be filed later (before or along responding to official letter). Notarisation or legalisation is not mandatory
Following are the basic requirements for filing of a Copyright application in India:
  1. Name, address, nationality and particulars of the applicant (whether individual, society, trust, partnership firm or company)
  2. Class & Subclass according to Locarno classification
  3. Title of the Article
  4. Nature of applicant’s interest in copyrighting the work
  5. 6 sets of Photographs/ drawings/ tracing with various views (top, bottom, front, back, side/s and perspective views) of size at least 13 by 10 cms, if by provided by print, in case of by email only one se
  6. Statement as to novelty
  7. Representations illustrating the views of the article wherein the originality resides
  8. Details of priority, if any, including application number, date of filing and country of filing. Certified copy of the priority document has to be filed within 3 months from the date of filing of application in India
  9. Power of authority in favour of Indian Attorney/ Advocate, to be stamped in India. It may be filed later (before or along responding to official letter). Notarisation or legalisation is not mandatory
  10. Certified copy of assignment deed or original assignment deed, where Applicant is subsequent assignor or where priority application was filed in name of inventor, original or certified copy of assignment shall be required 
Design prosecution in India involves following stages:
  1. Filing of application & issuance of receipt of fee along with application number
  2. Issuance of Examination report with objections, if any ordinarily within 1-2 months of filing of application
  3. Responding to Examination report within 6 months from date of filing of application in India which can be extended further by 3 months on payment of additional fees and request before expiry of 6 months from date of filing
  4. Hearing, if any
  5. Acceptance of application
  6. Issuance of Registration certificate
The term of registration of copyright in Design is for 15 years in total. The registration is valid initially for a term of 10 years and can be renewed for a further period of another 5 years.

Owner of the Copyright in Design can license as well as assign his work. The assignment has to be in writing and must clearly identify the work, duration and territorial extent of such assignment.

A suit for piracy of design has to be filed in a District court within whose territorial jurisdiction the cause of action has arisen. However, as soon as any ground as to cancellation of design is taken in said suit or any other proceedings, only high court has the jurisdiction of entertain the matter and the matter has to be transferred to High Court for decision.

Following acts without consent or license from the registered proprietor amount to piracy of registered design:

  1. Apply or cause of apply to any article in any class in which design is registered, the design or fraudulent or obvious intimation thereof for sale
  2. Import any article in any class in which design is registered, the design or fraudulent or obvious intimation thereof
  3. Knowingly publish or expose or cause of publish or expose for sale an article in any class in which design is registered where design or fraudulent or obvious intimation thereof has been applied
For any piracy of registered design the defendant has to pay sum up to Rs. 25,000 towards the contravention. However maximum damages allowed are Rs. 50,000 in respect of a single design.
Besides awarding the damages the proprietor may also seek injunction against repetition of contravention.
UThe defences available for defence in piracy of design are any of the grounds under which design can be cancelled.
With effect from December 30, 2014 the Design fee has been increased and three categories of Applicant are introduced i.e. Natural person, small entity and others. 75% Discount in official fee is allowed to natural person  and 50% discount in official fee is allowed to small entity. When the design application is assigned to non-natural person (small entity or other than small entity), the entire discounted fee has to be paid at the time of registration of assignment.

Small entity means an entity whose investment in plants/ machines in case indulged in manufacturing/ production of goods is less than 10 crores (approx. 1.6 Millions US Dollars, RBI reference rate shall prevail) and in case indulged in service industry the investment in equipment is less than 5 crores (approx 0.8 Million US Dollar, RBI reference rate shall prevail). It is to be noted that while calculating investment in plants and machinery, the cost of pollution control, research and development, industrial safety devices, and such other things specified under THE MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006 is to be excluded.

An affidavit duly executed and notarised could be filed along with Form 24 to claim the small entity status.

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