So you have a great new Design for your product but are worried that it might get copied by another company. What can you do to protect the Design of this product so that nobody else can copy it and profit from it? These are understandable questions that are actually very common. Thankfully, there are ways that you can protect your Designs in India and across the world as long as it meets certain requirements. Please read on to see how this is all possible.
If you have any kind of product either in the Design phase or already in production, you might want to consider protecting its visual or aesthetic features. An Industrial Design is a kind of Design right that is used to protect the visual aspects of a product. Namely, this will be the shape, pattern, colouring, or anything else distinguishable that makes it unique to anything else currently in the public domain.
Though, it is similar to that of a Patent, it is only for the non-functional Design of a product, the visual parts. So it cannot be used against any moving mechanical parts that might make up a product’s Design.
It can be seen that in today’s competitive world where Industrial houses, flood the market with a wide ranging array of products, the cutting edge lies in the aesthetically shaped and contoured product Design which has the capability to carve out a niche in the preference of products among customers’ minds. One can see very many consumer durable products that are successful in the market, owe a great deal to the sleek and delicately shaped external surfaces of the articles apart from the technology which has been utilized to make such products, which of course is critical for the long sustained good will in the minds of the customers. Today one can see many business / Industrial houses, spending considerably for styling’ of the end products, to suit them to the highly aesthetic tastes of the customers.
An Industrial Design can be filed for any product that can be manufactured Industrially and commercialized. There may be certain restrictions as per the Indian Designs Act 2000, for preventing Design features that have the potential to cause harm unrest by hurting of religious sentiments, scandalous and obscene. The basic requirement for seeking an Industrial Design right is that the product for which Industrial Design is sought for should be novel and unique and must not have been featured in public domain prior to the application for Design has been made. The Patent Office, Kolkata, which has a separate wing for Industrial Designs, is the nodal body for receiving applications, prosecution and examination and Grant of Industrial Designs in India. Any person desirous of seeking Industrial Design must apply with proper format with appropriate fees applicable with representation sheets and statement for disclaimers etc., to the Indian Patent Office, Designs Wing, Kolkata.
Hence, it must be clearly understood that such products, which enter into the market with great deal of investment behind the styling MUST be protected as Industrial Designs to hold the Intellectual Property behind such Designs with the Creator of the Design. Otherwise, the Designs created quite painstakingly with much efforts and money may be subjected to plagiarism and copying resulting in heavy loss in business for the original Creator of the Designed product.
REGISTRABLE INDUSTRIAL DESIGNS
There are certain facts that need to be ascertained before a Design can be considered registrable as an industry Design. Not all Designs will be able to be covered by an Industrial Design unless they adhere to certain guidelines. Most pertain to the uniqueness of the Design and whether it is an aesthetic or visual aspect of a Design.
For your Industrial Design to be registrable, it must have novelty. This basically means that the exterior Design that you wish to protect, whether a colour scheme, pattern, or shape, it should be completely unique compared to other products in the public domain.
NON-REGISTRABLE INDUSTRIAL DESIGNS
A non-registrable Design is a Design that is either not original or new, is not considered to be significantly distinguishable from other Designs already in manufacture. Additionally, if the Design or very similar Design has been disclosed to the public in a tangible form through publication in India or any other country, the Design becomes non-registrable.
To make this easier to understand, if the aesthetic Design of a product is not unique in how it looks or it indeed looks too similar to another product Design elsewhere, there is a good chance that it will become non-registrable. Furthermore, any Industrial Design that contains obscene material or could be viewed as scandalous will also be considered as non-registrable.
REQUIREMENTS FOR INDUSTRIAL DESIGN IN INDIA
According to the Designs Act, 2000, a Design has to meet these requirements before it can be registered as an Industrial Design:
- The Design has its own novelty or uniqueness. The Design must not be in public domain anywhere else including other countries.
- It should be applied or applicable to an existing product.
- The potentially protected Design should be applied to an existing product using an Industrial process.
- Any functional, mechanical parts of a Design cannot be registered.
- Design cannot include any aspect that already has a Trademark, property mark or anything of similar power as covered by the Copyright Act of 1957.
- The Design rights thus granted shall be valid till 10 years and can be extended further to a period of 5 years in India.
TYPES OF INDUSTRIAL DESIGN
The claim for Design rights can be made practically for all type of objects which can be manufactured Industrially or through Industrial Process. The Locarno Classification of Articles, which India, also follows gives a comprehensive list of products, under various headings / sub classifications to pin point as to exactly under which classification any particular product intended for Design falls in.