Importance of getting your Design Patent
India is witnessing remarkable growth in various sectors making it one of the most favorite destinations for investors. With more and more investors coming to India, the number of IPs filing and grant are bound to increase. India witnessed a long journey since 2000 when its GDP at $468.39 billion started to rise phenomenally to almost five times, adding a whopping $2.62 trillion to the economy in 2020. Since contribution towards the economy could be traced back to three major sectors, namely; agrarian, manufacturing, and service, deducing that the growth in the sectors was apparent.
To build and make a more investment-friendly environment, the Indian Government launched the “MAKE IN INDIA” initiative to enable an increase in the share of the country’s manufacturing sector in the Gross Domestic Product from 16% to 25% by 2022. The idea was to ensure that the sector endures a growth rate of 12-14% per annum over the medium term. To support this vision, funds were mustered from every possible source, which became evident when cumulative Foreign Direct Investment (FDI) infused in India’s manufacturing sector reached USD 81.72 billion in FY21 with a 10% increase year on year. In wake of such heavy investments, the assumptions that turbulence would soon become inevitable in the sector needed to be taken seriously.
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What is Design Patent?
Industrial Property refers to assets created primarily for the advancement of technology, industry, and trade such as Patents (Inventions), Industrial Designs, Trade Marks, Service Marks, Trade Secrets, and Geographic Indications of origin. Industrial Design (also interchangeably referred to as “Design” or “Design Patent”) recognizes the creation of new and original features of new shape, configuration, surface pattern, ornamentations, and composition of lines or colors applied to articles which in the finished state appeal to and is judged solely by the eye.
In India, a Design, under Section 2(d) of The Designs Act, 2000 refers to features of shape, configuration, pattern, ornamentation, or composition of lines or colors applied to any article, whether in two or three dimensional (or both) forms. This may be applied by any industrial process or means (manual, mechanical or chemical) separately or by a combined process, which in the finished article appeals to and is judged solely by the eye.
The design does not include any mode or principle of construction or anything which is a merely mechanical device. It also does not include any trademark as under Section 2(l) of The Trade Marks Act, 1999 or artistic work described as under Section 2(c) of The Copyright Act, 1957. Also, property marks as defined under Section 479 of the Indian Penal Code, 1860 are excluded from the scope of design. If the design is not new or original, or cannot be distinguished from the existing design or combination of such designs, or contains scandalous or obscene matter, then it shall not be registered. Further, a design is barred from registration if it has been disclosed to the public, through any sort of publication before the filing date.
Registration of a design under Section 11(a) confers upon the proprietor, the exclusive right to apply a design to the article in the class in which the design has been registered. This implies conversely stating that no right exists for any proprietor if their design has not been registered, and hence cannot be enforced in the Court of Law against an infringer.
A registered proprietor of the design is entitled to the protection of its IP and can take steps against infringement if its rights recognized by law are infringed by any legal person. The right owner can license or sell its registered design as legal property for consideration or royalty.
Registration initially confers this right for ten years from the date of registration, which is extendable up to five years post the expiration. The right expires if the extension for registration is not applied for within the stipulated time.
Hence, non-registration possesses a potential loss of enforceable rights against an infringer, resulting in the elimination of a risk mitigation tool. This is more so when the official fees for filing a design application are very reasonable keeping in view the rights accorded by it for fifteen years. For instance, it takes INR 1000 as the Official Filing fee for the registration of a design for a natural person. If a design is meant for practical commercial and industrial production, it is bound to provide returns greater than the registration fee.