INTRODUCTION:

Industrialisation has given a boost to a lot of new ideas and a lot of new technological
advancements in the subsequent fields related to it and with the further advancement there
arose the need to protect the intellectual ideas as these ideas are essentially the core
foundation of many businesses is in these coming times. If these ideas are plagiarised or used
without the consent of the original proprietor of the idea than it will not be fair to the person
is the original proprietor of idea. There are laws formulated by the Indian government to
protect the intellectual assent of these companies and establishments so that the people who
infringe the intellectual asset and designs of a company or establishment they will be stopped
from further usage of such plagiarised ideas.
Since the issue of infringement of these intellectual assets of a person or a company is very
serious issue and the governmental authorities have made the national IPR policy which is in
compliance with the Trade Related aspects of IPR (TRIPS) which are the international
standard practices for IPR as provided by the World Trade Organisation. The legislations
which are going to be analysed and examined by us in this article in regards with Design
piracy are the Patent Act of 1970 and the Design Act of 2000.
WHAT IS DESIGN?
The concept of design as understood in lay terms is the posterior part or outlook of an object
or an article which is which gives the object or an article a certain degree of distinctiveness.
This definition does not take into consideration the nuances of an artistically created design
and the factors which are to be considered while creating a reasonable distinction amongst
designs.
The definition of design as per the Design Act of 2000 is as follows:
“Design means 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”1
All disputes and all the other subsequent issues related to design infringement and piracy are
governed by the provisions provided in the Design Act of 2000. The original legislation was
enacted in the year 1911 and was subsequently amended in the year 2000 with the upcoming
advancements and subsequent changes in field of design. The definition includes the
parameters of what physical and visible attributes of a designed product which are somewhat
tangible in nature and are but there are some nuances of these attributes which are not

1
Design act 2000 section 2 (d)
counted in as a part of design under the act. Such as any mode or principles of construction of
a certain product or article.
ESSENTIAL REQUIREMENTS FOR REGISTERATION OF DESIGN:
For a design to be considered for registration there are certain valid and pre-existing
standards which are set by the authorities which are supposed to be met by the applicant.

 NOVELTY AND ORIGINALITY:

The first and foremost requirement which is very basic is that the design which is applied for
is unique and not a replica or a facsimile of another design. However it was decided in the
case of Hello Mineral Water Pvt. Ltd. vs Thermoking California Pure 2 that a
combination of two already registered designs can be considered for the application if the
resulting outcome of the designs is different and the designs it is derived from. Even the
concept of novelty in the terms of a design is also discussed in a very articulate manner by the
judges.

 THE ORDER AND MORALITY OF THE DESING IS TO BE UPHELD:

Under this compliance it is mentioned that the design which is applied for registration should
not be categorised as prohibited in any manner by the government and should be registrable
as per the design act of 2000 and according to the standards as laid down in the section 5 of
the design act. According to section 5 of the design act the specified conditions to be
followed are as follows:
“5. (1) The Controller may, on the application of any person claiming to be the proprietor of
any new or original design not previously published in any country and which is not contrary
to public order or morality, register the design under this Act. Application registration of
designs Provided that the Controller shall before such registration refer the application for
examination, by an examiner appointed under sub-section(2) of section 3, as to whether such
design is capable of being registered under this Act and the rules made thereunder and
consider the report of the examiner on such reference.
(2) Every application under Sub-Section (1) shall be in the prescribed form and shall be
filed in the Patent Office in the prescribed manner and shall be accompanied by the
prescribed fee.
(3) A design may be registered in not more than one class, and, in case of doubt as to the
class in which a design ought to be registered, the Controller may decide the question.
(4) The Controller may, if he thinks fit, refuse to register any design presented to him for
registration; but any person, person aggrieved by any such refusal may appeal to the High
Court.

2
 2000 (56) DRJ 700, Hello Mineral Water Pvt. Ltd. vs Thermoking California Pure
(5) An application which, owing to any default or neglect on the part of the applicant, has
not been completed so as to enable registration to be effected within the prescribed time shall
be deemed to be abandoned. (6) A design when registered shall be registered as of the date
of the application for registration”3
These are the conditions which are to be adhered to while applying for registration of any
design.
REGISTERATION OF DESIGN:
Before we delve into the procedure and the intricacies of the registration process we would
like to discuss about the topic of who can be entitled to register a design. In the design act the
section 2 (j) mentions who all can be entitled as the proprietor of the applied for design. As
per the legislation:
“(j) “proprietor of a new or original design”,- (i) where the author of the design, for good
consideration, executes the work for some other person, means the person for whom the
design is so executed; (ii) where any person acquires the design or the right to apply the
design to any article, either exclusively of any other person or otherwise, means, in the
respect and to the extent in and to which the design or right has been so acquired, the person
by whom the design or right is so acquired; and (iii) in any other case, means the author of
the design; and where the property in or the right to apply, the design has devolved from the
original proprietor upon any other person, includes that other person”4
According to the design act these are the persons who are eligible to be termed as proprietor
of a design.
Now coming on to the main topic which is the registration of design we will look into the
process of registration for a design. The process laid out below is specified in the chapter 2 of
the design act of 2000.
To initiate the registration process for a design an application for registration is to be made
out to the patent office, the fee amount as prescribed in the act is also to be sent with the
application to the patent office. In the application there are certain things to be mentioned
such as the class under which the design of the object falls under and further the application
of the object is to be mentioned to which the design in question is to be applied.
After the application is filed in in the patent office the controller of patents will send the
application examination of the proposed design and whether it meets all the parameters and
the novelty and the originality of the design is also looked into.
After the conduction of thorough examination by the patent office the applicant or the agent
acting on behalf of the proprietor will be notified by the patent office if any discrepancies are
noticed at the time of examination of the design. The applicant or the agent of the applicant
are in the case of a discrepancy arises are then asked to either rectify the issues which were
raised after the examination of the design and thus nullify the objection raised.

3
Design act 2000, section 5
4
Design act 2000, section 2(j)
Further if after the notification is sent to the applicant or his agent and there are no changes
made with regards of the application within the time period of three months the application is
considered withdrawn and no further procedure is carried out after that by the patents office.