Design patent in India is a protection over the features of shape, configuration, pattern or ornament or composition of lines or color or a combination thereof applied to any article which gives it a distinctive visual appearance.
The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new Subject matter.
Bhagnari & Co. have people specializing in the registration of industrial design patents
Process flowchart for Design Patent in India
How much does it cost to get a Design Patent in India?
Option 1: We charge an Attorney filing fee of US$200 + Actual Design Office fee + ACTION based fee for prosecuting the case till registration/final disposal of the matter.
Option 2: We offer to handle a case for a ONE time FLAT Attorney fee of US$400 + Actual Design Office fee + NO further fee for prosecuting the case till registration/final disposal of the matter.
India Design Office Filing fee:
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What is the object of Design Patent in India?
The object of the Designs Act is to protect new or original designs and safeguard the creation of the designer. Often the purchase of articles is influenced not only by their practical efficiency but also by their appearance. The important purpose of a design registration is to ensure that the artisan, creator, originator of a design is not deprived of his/her bonafide reward.
When does the Applicant for Patent of Design get the patent Certificate?
When an application for patent of a design is in order, it is accepted and patented. A certificate of patent is subsequently issued to the applicant. This usually takes about 9 months. However, a separate request is to be made to the Controller of Designs for obtaining a certified copy of the certificate for use in legal proceedings.
What is a Register of Designs in India?
The Register of Designs is a document maintained by The Patent Office, Kolkata, as a statutory requirement. It contains the design number, class number, date of filing (in this country) and reciprocity date (if any), name and address of the proprietor, and such other matters as would affect the validity of proprietorship of the design. It is open for public inspection on payment of the prescribed fee & an extract from the register may also be obtained on request.
What is the effect of design patent in India?
The patent of a design confers upon the proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.
What is the date of patent?
The date of design patent in India, except in case of priority, is the actual date of filing of the application. In case of patent of design with priority, the date of patent is the date of making an application in the reciprocal country.
Is it possible to re-register a design in respect of which Copyright has expired?
No. A registered design, the copyright of which has expired cannot be re-registered.
How can one ascertain whether patent subsists in respect of any Design?
For ascertaining whether patent subsists in respect of a design, a request should be made to the Patent Office, Kolkata. If the serial number of the patented design is known, the request should be made on Form 6, otherwise on Form 7, together with a fee of Rs. 500/- or Rs. 1,000/- respectively.
Is marking of an article compulsory in the cases of an article to which a patented design has been applied?
Yes, it would be always advantageous to the proprietors to mark the article to indicate the number of the patented design except in the case of textile designs. Otherwise, the proprietor would not be entitled to claim damages from any infringement unless the proprietor establishes that he/she took all proper steps to ensure the marking of the article, or the proprietor shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the patent in the design.
Is it mandatory to make the article by industrial process or means, before making an application for patent of design?
No, design means a conception or suggestion or idea of a shape or pattern which can be applied to an article or intended to be applied by industrial process or means. Example – a new shape which can be applied to a pen, thus capable of producing a new pen with a distinct visual appearance. It is not mandatory to produce the pen first and then make an application for design patent.
Why is it important for applying for patent of design at the earliest possible?
The first-to-file rule is applicable for design patent in India. If two or more applications relating to an identical or a similar design are filed on different dates only the first application shall be considered for patent of a design.
Can the same applicant make an application for the same design again, if the prior application has been abandoned?
Yes, the same applicant can apply again since no publication of the abandoned application was made by the Patent Office, provided the applicant does not publish the said design in the meanwhile.
How to get information on patent of design?
After patent of a design, the most relevant views of the article along with other bibliographic data shall be published in the official gazette.
Whether it is possible to transfer the right of ownership?
Yes, it is possible to transfer the right through assignment, agreement, transmission with terms and conditions in writing, or by operation of law. An application in form-l0, with a fee of Rs. 500/- in respect of one design and Rs. 200/- for each additional design, for registration of the transfer documents, is required to be made by the beneficiary to the Controller within six months from the date of execution of the instruments or within a further period not exceeding six months in aggregate. An original/notarized copy of the instrument to be registered in the register of design is required to be enclosed with the application.
What is meant by priority claiming a design in India?
Based on a first application filed in one of the contracting states, the applicant may, within six months apply for protection in India. This application shall be regarded as if it had been filed on the same day as the first application.
Can the name, address of proprietor, or address for service be altered in the register of design?
The name of the registered proprietor, address, or address for service can be altered in the register of designs provided this alteration is not made by way of change of ownership through conveyance i.e. deed of assignment, transmission, license agreement, or by any operation of law.
Are the patented designs open for public inspection?
Yes, patented designs are open for public inspection only after publication in the official gazette, on payment of the prescribed fee of Rs. 500/- on a request in Form-5.
How does a patent of design stop other people from exploiting?
Once a design is patented, it gives the legal right to bring an action against those persons (natural/legal entity) who infringe the design right, in the Court not lower than District Court to stop such exploitation and to claim any damages to which the registered proprietor is legally entitled. However, if the design is not patented, there shall be no legal right available to take any action against the infringement under the provisions of the Designs Act, 2000.
What is an artistic work which is not the subject matter of patented?
An artistic work as defined under Section 2(c) of the Copyright Act, 1957 shall not a subject matter for registration.
“Artistic works” means:
(i) A painting, a sculpture, a drawing (including a diagram, map, chart or plan) on engraving or a photograph whether or not such work possesses artistic quality.
(ii) A work of architecture and
(iii) Any other work of artistic craftsmanship.
What is meant by the classification of goods mentioned in the Third Schedule?
In the third Schedule of Design Rules, 2001 the classification of goods has been mentioned. The classification is based on the Locarno Agreement. Only one class number is to be mentioned in one particular application.
Practical Example: If the design is applied to a toothbrush it will be classified under class 04 & subclass 04-02. Similarly, if the design is applied to a calculator, it will be classified in class 18 & subclass 18-01. Subsequent application by the same proprietor for registration of the same or similar design applied to any article of the same class is possible but the period of registration will be valid only up to the period of previous registration of the same design.
What is meant by Property mark as per the Indian Penal Code (Sec. 479)?
A mark used for denoting that movable property belongs to a particular person is called a property mark. It means that marking any movable property or goods, or any case, package or receptacle containing goods; or using any case, package, or receptacle, with any mark thereon.
Practical example: The mark used by the Indian Railway on their goods may be termed as a property mark for easy identification of the owner.
You may directly call on +91.9860588440 or write a mail to firstname.lastname@example.org for further information and discussions.
Written by Mahesh Bhagnari, Patent & Trademark Attorney in India.