The main objective of the Design Act, 2000, is to protect any new or original design created by a person that applies to a particular article that is to be manufactured by an industrial means or process. The Registration of Design is done to look that the creator or originator of a Design is not deprived of his/her bonafide rewards. To avoid the Infringement of Design, the Design Act, 2000, provides for provisions related to the Renewal and Restoration of Design in India. The proprietor of a registered Design is given all opportunities to save the rights associated with his/her Design by providing provisions related to Renewal and Restoration of Design. In this article, we will discuss the provisions related to the Renewal and Restoration of Design in India.
What is a Design as per Design Act, 2000?
Under Section 2 (d) of the Design Act, 2000, the definition of a Design is provided. A Design means the features of shape, a configuration, pattern or composition or ornament of color or lines or their combination, which is applied to any article whether 2 dimensional or 3 dimensional or in both the forms, by any industrial means or process, whether chemical, manual, or mechanical, separate or combined, which in the finished or final article appeal to and are judged solely by the eye. But a Design does not include any mode or construction or principle or anything which is in substance or material a mere mechanical device. The definition of Design does not include any trademark, as defined in Section 2(v) of the Trade and Merchandise Marks Act, 1958, and a property mark or an artistic work defined under Section 2(c) of the Copyright Act, 1957[1].
Any person who is claiming to be the proprietor of an original or new or Design may apply for registration of Design in India. A proprietor of a Design may be from India or Convention Country.
A proprietor of Design may be the following people:
- An author of a Design;
- Any person who has acquired the Design;
- Any person for whom the author has developed the Design; or
- Any person on whom the Design has been devolved or transferred.
The application for Design Registration in India can be filed by the applicant himself/herself or through a professional person, i.e., legal practitioner, patent agent. Though, for the applicants who are not residing in India, an address of an agent residing in India can be used as an address for service.
A Design of an article is not eligible for registration in India in any of the following cases:
- The Design is not original or new;
- The Design has been disclosed or revealed to the common public anywhere in the territory of India or any other country by the publication of such Design intangible or physical form or by usage in any other way prior to the date of filing or priority date of the registration application;
- The Design is not expressively distinguishable from known designs or combination of known designs;
- The Design includes or contains any kind of immoral or obscene matter;
- The Design is against public morality or order;
- The Design includes some mechanical and technical fabrication.
What is the Renewal and Restoration of Design in India?
The meaning of Renewal and Restoration of Design in India is as follows:
Renewal of Design
As per Section 11 of the Design Act, 2000, whenever a Design is registered under the Design Act, 2000, the registered proprietor has a Copyright in the Design for a time period of 10 years from the date of Design registration. Under Section 11 (2) of the Design Act, 2000, the provisions related to Renewal or extension of Copyright of Design are provided. The Renewal or extension of a copyright of a registered Design can be extended for a time period of 5 years. The Renewal can only be done after the expiration of the original time period of 10 years of the Registration of Design. The Controller does the Renewal of Design after the registered proprietor fulfills all the requirements.
Restoration of Lapsed Design
In a case when Copyright of a registered Design ceases to have an effect due to non-payment of fees for the Renewal of Copyright, within the prescribed time period, the registered proprietor can go for Restoration of Lapsed Design in India. The proprietor of registered Design can file an application for Restoration of Lapsed Design as per Section 12 of the Design Act, 2000. The application for Restoration of Lapsed Design should be filed within 12 months from the date on which the registered Design ceases to have effect.
What are the essential requirements for the Renewal and Restoration of Design in India?
The essential requirements for Renewal and Restoration of Design in India are as follows:
Renewal of Design in India
The essential requirements for Renewal or extension of Design in India are as follows:
- An application for Renewal or extension of copyright of Design should be filed before the expiry of the original time period of 10 years.
- The Designs Wing is required to complete the proceedings of Renewal or extension of Copyright of Designs, within one week from the date of receipt of Form-3.
- The fact of Renewal or extension of copyright in a registered Design is required to be entered in the Register of Designs.
- The fact of Renewal or extension of Design should be published in the Journal of Patent Office by the Design Wing.
Restoration of Lapsed Design in India
The essential requirements for Restoration of Lapsed Design in India are as follows:
- The registered proprietor or his legal representative can apply for Restoration of Lapsed Design.
- In a case, if two or more persons hold the registered Design, then, with the leave of the Controller, one or more of these persons without joining the others can apply for Restoration of Lapsed Design.
- In case the application for Restoration of Lapsed Design is filed by any other person claiming to be the proprietor of the registered Design, then, such an application should be accompanied by Form-11, for affecting a change or alteration in name or proprietorship in the Register of Designs. The application for Restoration of Lapsed Design should have proceeded only after the change or alteration in name or proprietorship is affected as per provisions provided in the Design Act, 2000. Though, in a case where change or alteration in name or proprietorship happened after the registered Design ceased to have effect, then such an application for Restoration from the latter alleged proprietor of Design will not be entertained by the Design Wing.
- In case the registered proprietor of Design fails to register a change or alteration of a name before or after the termination, he/she should first apply for such an alteration of name in the Register of Design. The application for Restoration of Lapsed Design should proceed only after change or alteration in name has been affected in the Register of Designs.
Read our article:What type of Works Protected by Copyright in India?
What is the Procedure for Renewal and Restoration of Design in India?
The procedures for Renewal and Restoration of Design in India are as follows:
Procedure for Renewal of Design
The procedure for Renewal or extension of Design in India is as follows:
- The applicant is required to file for an application of Renewal or extension of Design with the Design Wing.
- The application of Renewal or extension of Design should be filed in Form-3 as prescribed under Rule 23 of the Design Rules, 2001.
- After receiving the application of the Renewal or extension of Design, the Design Wing will check for the date on which the application is filed and will scrutinize whether the applicant has filed the application within the prescribed time period or not.
- The Design Wing, when it is satisfied that the application is filed in the time limit prescribed, will approve the application for Renewal or extension of Design. The Design Wing should complete the proceedings for Renewal or extension of Design within one week from the date of receipt of the Form-3.
- After allowing the Renewal or extension of Design, the Design Wing should enter in the Register of Design the fact of Renewal or extension of Design. The Design Wing should also publish the fact of Renewal or extension of Design in the Journal of Patent Office in India.
Procedure for Restoration of Lapsed Design
The procedure for Restoration of Lapsed Design in India is as follows:
- The application for Restoration of Lapsed Design should be filed with the Controller in Form-4 as prescribed under Rule 24 of the Design Rules, 2001. The application of Restoration of Lapsed Design should include a statement setting out the true circumstances that led to failure in payment of the fee for the Renewal or extension of Design.
- The application for Restoration of Lapsed Design should include the supporting evidences for the delay in payment of fees by the registered proprietor. The evidence should support the claim of the registered proprietor that the failure in payment of fees was unintentional, and there has been no undue delay in applying for Restoration of Lapsed Design from the part of the registered proprietor.
- The Controller may require some evidences in support of the statement made by the registered proprietor.
- Once the Controller is satisfied that the failure in payment of the fee for Renewal or extension of Copyright of a registered Design was unintentional and also there was no undue delay in making the Restoration of Lapsed Design application by the registered proprietor, the Controller can give an order for Restoration of the registration of a Lapsed Design.
- In case if the Controller is of the opinion that there is a prima facie case for not permitting the application for Restoration of Lapsed Design, the registered proprietor of the Design should be intimated accordingly. In such a case, the registered proprietor of the Design may request the Controller for a hearing in the matter within one month from the date of receipt of such intimation from the Controller. Unless the registered proprietor makes such a request for hearing, the application for Restoration of Lapsed Design should be refused or rejected by the Controller.
- The registered proprietor if requests for hearing within the time period allowed and the Controller, after such a hearing, is satisfied that the failure for payment of the fee for the Renewal or extension of Copyright of Design is unintentional and there was no undue delay in the making the application for Restoration of Lapsed Design, the application for Restoration of Lapsed Design should be allowed by the Controller.
- The fact that a registered Design is restored should be published in Official Journal by the Controller.
What basic requirements should be fulfilled after the Restoration of Lapsed Design?
As per Rule 25 of the Design Rules, 2001, after the application for Restoration of Lapsed Design is allowed by the Controller, the registered proprietor of Design is required to pay the unpaid fees for Renewal or extension of Copyright of a registered Design. The unpaid fees for the Renewal or extension of copyright should be paid along with the additional fee that is prescribed in the First Schedule of the Design Rules, 2001. The fees should be paid within one month from the date of the order of Restoration of Lapsed Design by the Controller to the registered proprietor, allowing the proprietor for the Restoration of Lapsed Design in India. The Controller is required to advertise in the Official Gazette his/her decision on the application for Restoration of a Lapsed Design.
Conclusion
The Renewal and Restoration of Design in India are provided for securing the exclusive rights of the registered proprietor of a Design. The proprietor is given the opportunity to save the rights associated with his/her Design and protect the Design from Infringement. The Renewal and Restoration of Design in India procedures are provided in the Design Act, 2000, and Design Rules, 2001. The procedure of the Renewal and Restoration of Design in India is time-taking and long-lasting. We at Corpbiz have qualified experts to help you in the process of Renewal and Restoration of Design in India. Our experts will help and guide you with the process of Renewal and Restoration of Design. Our skillful experts will ensure the timely and successful completion of your work.
Read our article:Design Registration and Protection in India
