Copyright protection for Industrial designs in India Introduction-
In the present era of globalization, it is progressively obvious that the intensity of any undertaking relies on upon its capacity to advance its item and administration with a target to separate itself from its rivals or competitors in the business. It is normal for makers to catch item advertise or make a specialty for their item by separating, a generally comparable item on the premise of 'eye appeal'. Regardless of the possibility that these items are not impeccable substitutes, the decision of shoppers and thusly market interest; may, to an extensive degree, rely on upon the appearance. In this appreciation, Industrial Designs (ID) have turned into a critical component in a product value chain. This permits a high potential and motivating force for benefit for business through interest in ID particularly substantial makers. For such item sections, "design" is a fundamental part and hence is protected to avoid imitation with an intention of passing off. After the industrial revolution in the present time itâ€™s become necessary to give a special and unique shape of any article or product by industrial process. Today, manufacturers are interested in design of the article they produce. For the same they invest their capital with expensive research and because this Legal protection becomes necessary for their creation of new design or their articles. The protection is available under Designs Act, 2000 and Designs Rule, 2001 as amended in 2008. History of design protection in India-
The first design protection legislation enacted in India was the Patterns and Designs Protection Act, 1872 which is enacted by the Britishers during British India. According to this inventors of new patterns and design have exclusive privilege of making, selling and using the invention I India or give license to do so for short period. After some time The Invention and Designs Act, 1888 was enacted. United Kingdom enacted Patents and Designs Act in 1907 and it becomes the basis of Indian Patent Act, 1911. Later in 1970 the Patents Act repealed the provisions relating to patents in the Indian Patents and Designs Act, 1911 and the act continue under the new title Design Act, 1911 with some amendments. The Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) culminated at the end of seven years of negotiations from 1986 to 1993, as part of the Uruguay Round of Multilateral Trade Negotiations of the GATT. TRIPS came into force on 1st
January 1995 with the establishment of World Trade Organization. TRIPS agreement provides minimum standards and norms in different property rights which include Industrial design. Protection of Industrial Designs in India-
The important law legislating Designs in India is the Designs Act 2000 and the Designs Rules 2001. Designs Act, 2000 is the new law identifying with Industrial Designs, which annuls and replaces the prior Designs Act, 1911. This Act oversees its target well in the fast changes in engineering and global advancements. India has likewise arrived at a developed status in the field of modern designs and by watching globalization of the economy; the present legislation is strolling in venture with the changed specialized and business situation as far and wide as possible. Under the TRIPS Agreement, least principles of security of Industrial designs have been accommodated. Indian Designs law already provides these minimal standards to align with the international pattern. Any entities or things having unique and distinct pattern, appearance and design can register under Design Act. The registered owner gets the exclusive right to apply this design to any article in which design is registered. Separated from giving security of configuration component of industrial protection, the law promote innovative activity in the field of industries. From an intellectual property law perspective an industrial design is concerned only to the ornamental or aesthetic aspects of a product. As per Indian law protecting industrial design, â€œdesignâ€ constitutes 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 principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957. Some important points mentioned in the Designs Act, 2000 are-
- Design deals with external appearance only. It has to be judged by naked eye only.
- It relates to features of shape, configuration, pattern or ornamental decoration or composition of lines or colours applied to any article.
- Application of shape, configuration etc. to an article should be by an industrial process or means.
- In the finished article, it should appeal to and be judged solely by the eye.
- It does not include any trademark or property mark or any artistic work as defined in the Copyright Act, 1957.
According to this act, an article intimates any object of manufacture and any substance, manufactured or mostly common; and incorporates any piece of an article equipped for being made and sold independently. With the end goal of enlistment under the Act the configuration must be new or unique, unpublished at one time or in presence in whatever other nation and the article must have its presence autonomous of the designs connected to it. Thus, the configuration as connected to an article ought to be indispensable with the article itself. Trademark and property imprint, stamps, marks, tokens, cards, and so forth are prohibited from the enlistment under the act as these can't be considered as an 'article'. Additionally, any mode or rule of development or operation, which is in substance a minor mechanical gadget and it is obliged that the configuration ought to be obvious on the completed article. The total term of a registered design is 15 years. Steps Involved in Registration-
Protection under the Design Act, 2000 and the Copyright Act, 1957
- An application for the enrollment of outline might be made in the endorsed structure and should be recorded in the patent office alongside the prescribed fee.
- Four copies of uniqueness of the design shall file with the application.
- The application define the class in which the design is to be registered and the articles for which the design is to be applied.
- Separate application is require for different article.
- Where words, letters or numerals are not the substance of the configuration, they might be expelled from the representations or examples and where they are the pith of the outline, the Controller may require the insertion of a disclaimer of any right to their selective utilization.
- The Controller might allude the application for examination to the analyst to know whether such plan is equipped for being enrolled under the Act and guidelines made there under.
- Controller may accept the application for registration if he fined all thing define in application is lawful.
- If examiner fined any loophole in application they can sent application for amendment.
- In the event that the candidate or his operator does not evacuate the complaints or request hearing inside 3 months, his application is considered to have been withdrawn, given that the period to evacuation of protest might not surpass 6 months from the date of recording.
- After giving the candidate a chance of being heard or overall if the candidate has not went to the listening to or has told that he doesn't craving to be listened, the Controller may enroll or decline to enlist the configuration as he supposes fit.
- The Controller might concede a Certificate of Registration to the proprietor of the configuration when enrolled.
- an application which owing to any disregard or default of the candidate, has not been finished in order to empower enrollment to be effected inside 6 months from the date of use, should be regarded to be surrendered.
- On acknowledgement of the outline documented in admiration of the application, the Controller should immediate the enrollment and distribution of the particulars of the application and the representation of the article to which the configuration has been connected, in the Official Gazette.
Ordinarily designs have been viewed as both under the space of masterful work and modern generation. This has prompted uncertainty and cover with other IPR laws like copyright law, trademark law, utility model and unfair competition law. This overlap has been carefully evaded in both Paris and Berne convention which recognized that designs are topic for copyright and also industrial production. Consequently, there will be works that are both protectable under copyright law and additionally under designs law. Indian law has attempted to resolution this by the provision of Section 15(2), Copyright Act of 1957 which manages the rights to which a holder of a unique aesthetic work is entitled. In Microfibers Inc. vs Girdhar & Co. &Anr
, the Delhi High Court has clarified the interplay between the Designs Act, 2000 and the Copyright Act, 1957 in the light of section 2(d) which excludes artistic works under the Copyright Act from the definition of design. The first canvases/aesthetic works which may be utilized to mechanically deliver the outlined article would keep on falling inside the significance of the creative work characterized under Section 2(c) of the Copyright Act, 1957 and would be qualified for the full time of copyright insurance as apparent from the meaning of the outline under Section 2(d) of the Designs Act. Nonetheless, the plan of creating the imaginative work is not important. It is the select right of the holder of a Copyright in a unique aesthetic work to recreate the work in any material structure. On the off chance that the outline is enlisted under the Designs Act, the Design would lose its copyright insurance under the Copyright Act. On the off chance that it is an outline registrable under the Designs Act yet has not all that been enrolled, the Design would keep on appreciating copyright insurance under the Act so long as the limit furthest reaches of its application on an article by a modern procedure for more than 50 times is arrived at. At the same time once that utmost is crossed, it would lose its copyright security under the Copyright Act. This elucidation would blend the Copyright and the Designs Act as per the administrative expectation. Protection and Injunction under Civil Procedure Code
Section 53(2)(a) and 53(2)(b) provides remedies, the plaintiff may seek interlocutory injunction pendent lite under CPC, Order 39 Rules 1 and 2. The principles applicable to the grant of interlocutory injunction in the case of a design are the same as are applicable in the case of a patent.
The plaintiff must make out an at first sight case and demonstrate that the parity of comfort is to support him. An interlocutory injunction won't regularly be conceded where damages will give a satisfactory remedy, ought to the plaintiff's claim succeed. The Delhi High Court in the case of Niki Tasha P. Ltd. v. Faridabad Gas Gadgets P. Ltd.
held that the court will not grant an interlocutory injunction unless satisfied that there is a real probability of the plaintiff succeeding on conclusion of the trial of the suit. Interlocutory injunction will not be granted if there are substantial grounds for attacking the validity of the registration. Interlocutory injunction will likewise be denied if the respondent gives an endeavor to keep a record on the off chance that he is an individual of substance and the endeavor will give the alleviation which the plaintiff requires. In Bansal Plastic Industries v. Neeraj Toys Industries
the court expressed that giving a provisional injunction is in the carefulness of the court which is to be practiced as per reason and sound standards. Conclusion- 1 |
128 (2006) DLT 238, 2006 (32) PTC 157 Del 
P. Narayanan, Intellectual Property Law (Calcutta : Eastern Law House Private Ltd.) 1990, p. 123 
AIR 1985 Del 136. 
14 IPLR 75 (Del., 1989)