Design Infringement in India

 

What is Design?

The Design according to Indian Design Act, 2000, is any shape, pattern, configuration, ornament or composition of colours or lines, which is applied to 2 dimensional or a 3 dimensional forms which can be judged or appealed solely by the eyes. 

Design does not include any mode of construction or ant Trademark defined under Trademark Act, 1999. Furthermore it does not include any property mark defined under section 479 of IPC, or any type of artistic work under section 2(c) of the Copyright Act, 1957.

What is a Design infringement in India?

In the Design Act, 2000, the pirating of registered design is considered as a Violation of Design in India. Section 22 of the Designs Act, 2000, provides the vittles related to the Pirating of registered Designs in India. As per Section 22 of the Design Act, 2000, any fraudulent or egregious reproduction of a Design that's formerly registered without the concurrence of the proprietor or owner of the registered design is unlawful. The Section also prohibits the import of any kind of substance or material which is in close resemblance of such a registered design.

An Violation of a registered Design means when any person, without the concurrence of the owner of the design, significantly, applies, or publishes the registered design or any egregious or fraudulent or reproduction thereof.

The acts mentioned above of a person come the Violation of Design only in the circumstances as follows

• The Act is committed during the actuality of a Brand in any Design;

• The design is imitated or applied without the previous concurrence of the registered proprietor or owner;

• The Act done is for the purpose of trade, and not for any private or particular use;

• The infringing papers must be in the same class in which the design is registered.

In order to ascertain Design Violation in India, the court or any adjudicatory body isn't needed to compare the two papers directly, but should look at the papers from the point of view of an average consumer and should see if the two papers are causing any egregious confusion in the minds of the consumers.

What are the essential conditions for a Design for protection from Design Violation in India?

The design of a product or goods has become a consummate concern for any businessman. Some unique product designs, like Coca Cola’s figure bottles, are the identity of a brand. The primary purpose of the Designs Act, 2000, is to cover the intellect of an author or a owner of a design from the Violation of Design. The 2000 Act provides certain essential conditions for products to be eligible for protection from Design Violation in India.

What are the exclusive rights handed to the proprietor of registered design under the Design Act, 2000?

A Design which is registered under Chapter II of the Design Act, 2000, as per Section 11 provides for an advantage to the registered proprietor or owner of the design to not only cover his/ her work under the Design Act, 2000, itself but can also acquire brand protection for a Design for a period of 10 times from the same day that work was registered under the Design Act, 2000.

The proprietor or owner on the enrollment of a Design under the Act acquires certain exclusive rights which are as follows

The exclusive right to apply the registered design to any papers in any of the classes in which the design is registered;

The exclusive right to expose or publish, or beget to be exposed or published, any papers in any classes of goods in which the design is registered to which such a Design is applied; and

The exclusive right to import for the purposes of trade any papers belonging to the classes in which the design is registered and having applied to it that design.

What's the liability of the infringing party in the case of Design Violation in India?

The Design Act, 2000, under Section 22 (2), provides for the arrears of the infringer of a Design, which are the remedies available impliedly to the registered owner or proprietor of the design. The registered proprietor or owner is needed to choose one of the indispensable remedies handed in Section 22 of the Design Act, 2000.

The liability of the infringing party as handed in Section 22 of the Design Act, 2000, in case of Design Violation in India is as follows

• As per Section 22 (2) (a) of the Design Act, 2000, the infringer is needed to pay a sum not exceeding Rupees for every violation or breach recoverable as a contract debt to the registered proprietor or owner. The total sum of similar quantum, which is recoverable for one design, shouldn't exceed Rupees.

• As per Section 22 (2) (b) of the Design Act, 2000, the registered proprietor or owner can choose to bring a suit for recovery of the damages, and can also maintain for an instruction against reiteration. In such a case, the infringing party is liable to pay such a quantum as the court awards and is also confined by an instruction, independently.

The explanation behind such a liability for an infringing party is to make an infringing party liable for loss suffered by the registered proprietor or owner of the design and to confirm a fair return on the investment of the owner or proprietor. Though, to claim damages, the registered proprietor or owner is needed to mark his/ her papers in some manner, which will denote that a particular Design is registered and take all necessary way demanded to insure the marking of the papers of the registered proprietor or owner.

What are the Defences available to the Infringing Party in the case of Design Violation in India?

The defenses available to the infringing party in case of Design Violation are as follows

• There's a Lack of novelty with the formerly registered design;

• Functional related to the product is different from the design which is formerly registered;

• Any grounds for cancellation of Registration of Design available under Section 19 of the Design Act, 2000;

• A contract relating to registered design at the time of violation of Section 22 of the Design Act, 2000, with a condition stated to be unlawful under Section 42 of the Act.

• The violation related to registered design should start from the date on which the enrollment of the design desisted to have effect and should continue till the date of restoration of similar listed design.

• The suit for Design Violation, recovery of damage,etc. shouldn't be filed in any court below the District Judge court.

Conclusion

In India, a better protection for Design Violation law is a factual need of the hour. The law regarding design should be more unequivocal regarding the Design Registration and for the protection of registered Design owner or proprietor. Within the legislative frame related to Design in India, the courts should also help to maintain and cover the rights of the registered proprietor or owner of design. The process of Design Violation is long-continuing and lengthy. We at BIAT Legal LLP have good professionals to help you throughout the process of form for the Violation of Design in India. Our professionals will help and guide you for the timely and effective completion of your work.

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