Indian design protection has been based on copyright rather than

patents. The term design is defined under the section 2(d) of the Designs Act
2000 which stated, designs are Features of shape, configuration , pattern,
ornament or composition of lines or colours or combinations; which can be
applied to any article whether in two dimensional or three dimensional or in
both forms. The finished article should be appealing and judged solely by
the eye only and should not be trademark or an artistic work under the law
of copyright.

 Whether there is any infringement by the respondent (PCN) or

not.

Design infringement occurs when someone applies a registered

industrial design or a design not differing substantially, to an article, for the
purposes of sale, rental, or exposure for sale, without the permission of the
owner. The protection through registration shall be granted only to designs
which are novel or, as it is sometimes expressed, original. Here, in the
present case the complainant (VGD) had not registered their novel designs
under the design law in India, but they have number of paper-based
sketches and drawings which are protected automatically by copyright. An

unregistered design is not enforceable under the law . Meaning to which, the
complainant cannot file a complain on a ground of infringement unless and
until their industrial design is not registered earlier.

But even if we assume for a moment that the registration of the

design is made by the complainant, then also there are certain aspects
which shows that the respondent (PCN) made no infringement. In the case
of Dart Industries Inc. v. Cello Plastotech it the similarity or difference
through the eye alone and where the article in respect of which the design is
applied is itself the object of purchase, through the eye of the purchaser. In
the case of Glaxo Smith Kline Consumer Healthcare GmbH and Co. Kg
and Ors. v. Anchor Health and Beauty care Private Limited, court held
that novelty should be capable of making a design different and distinctive
at first sight of the consumer and should not require lot of effort to find out
the novelty. Here, in the present case, based on a given pictures, it can be
derived that the complainant’s claim for novelty forms part of the allegedly
infringing copy is vague; because the difference between designs can
clearly be made by eye. Hence, both the articles are not the same and the
article of the respondent is novel.

 Whether there’s any ‘violation of right’ of the complainant (VGD).

In the case, even though the design of the articles is not registered but
the complainant has certain rights. If an unregistered design has become
distinctive because of long and continuous use, it may be protected under
the common law tort of passing off. The complainant is creating ornaments
based on the designs over the years which means the said articles are in the
long and continuous use and the concerned design is associated exclusively
with its article, and that use of a similar design would create confusion
among the public. In addition, copyright protection for a design may be
claimed under the Copyright Act 1957 if the design was capable of
registration under the Designs Act, but was not registered and the design
has been applied only to less than 50 articles by an industrial process.

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Considering both the aspects, primarily, there is lack of registration

on the complainant side and secondarily, both the articles are significantly
distinguishable by eye. Also, the total number is not given in the question of
how many times the design has been applied to the industrial process. It
can be said that there is no infringement by the respondent (PCN) ,

Further, the complainant (VGD) should get the copyright registration on

the designs and their paper sketches as this is artistic work. The
registration will give them the ownership of the work and to avoid
infringement in future and to gain economic rewards. Also, the complainant
(VGD) should get their design registered; because the Registration of the
design is must as it confers the exclusive right to the proprietor and
protection of his intellectual property i.e. design based on which ornaments
are made.