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What is an Industrial Design?
An industrial design is that aspect of a useful article, which is ornamental or aesthetic. It may consist of three-dimensional features, such as the shape or surface texture of an article, or of two-dimensional features, such as patterns, lines or color or a combination thereof.
Industrial designs are applied to a wide variety of products of industry and handicraft: from watches, jewelry, fashion and other luxury items, to industrial and medical instruments; from house-ware, furniture and electrical appliances to vehicles and architectural structures; from any product, goods and textile designs to leisure items, such as toys and pet accessories. All of these have new concern to IT as they are now getting market as Computer Generated Design.
Under most national laws, an industrial design, to be considered and protected as such, must appeal to the eye. An industrial design is primarily, if not exclusively, of an aesthetic nature since the actual design itself, as opposed to the article to which it is applied, cannot be dictated, at least solely or essentially, by technical or functional considerations.
Finally, an industrial design must be reproducible by industrial means. Otherwise it would constitute a "work of art," protectable only by copyright.
The object of protection of an industrial design is to be distinguished from that of a patent , primarily because the former must relate to the appearance of an article. An industrial design consists precisely of that aspect of an article which is ornamental or aesthetic and which is not determined by technical or functional necessity. The object of patent protection, to the contrary, whether it is a product or a process, must first and foremost constitute an "invention," which necessarily means that it is determined by its functionality.
An industrial design is to be distinguished from a mark (or trademark) primarily because it must be ornamental but not necessarily distinctive. A mark, to the contrary, although it may consist of all kinds of visible signs, which may or may not be ornamental, must always be distinctive, since a mark must be capable of distinguishing the goods or services of one enterprise from another. The functions of and therefore the justifications for protecting industrial designs and marks are quite different. For this reason, industrial designs can only be protected for a fixed period of time (usually for a maximum of 15 to 25 years, depending on the particular national law), whereas marks, if their registration is renewed, can be protected indefinitely.
How to Make an Application
Step 1 Finding out whether any registration already exists
The Designs office can assist you to search whether the design has been previously registered. If the registration number is known, Form No.-6 should be filed along with the prescribed fees of Rs. 500. If the representation of the article or the specimen of the article is filed, Form No.-7 along with the prescribed fees of Rs. 1,000 is required.
Step 2 Preparing a representation of the design
The exact representation of the article on which the design has been applied. Should be prepared on white A4 size paper of durable quality. Do not prepare it on cardboard or mount it on other paper. Indicate details of the design and applicant (s) clearly.
Step 3 Identifying the class of design
Designs are required to be categorized in separate classes in order to provide for systematic registration. An internationally accepted classification of Industrial Designs based upon the function of the article is required. The class and sub-class should be mentioned in the application. There are 32 classes and most of the classes are further divided into sub-classes. Preferred classes for electronics and IT are 17-01, 19-01 but now since any class of goods can be designed using computers and such designs are also items of registration, if so, the appropriate class may also be used and application filed for such class (es).
Step 4 Providing a statement of novelty
A statement of novelty should be included on the representation of a design as per the Act in order to specify the claim. This will enable speedier examination and provide a more specific protection. The claim will protect the overall visual appearance of the design as described in the representation of drawing photograph.
Step 5 Including a disclaimer
If the ornamental pattern on an article is likely to be confused with a trade mark, or suggests any mechanical action or contains words, letters, numerals, etc., a disclaimer should be included in the representation that no claim is being made in respect of such item (s).
Step 6 Claiming a priority date
If you have applied for protection of the design in convention countries or countries which are members of inter-governmental organizations, you can claim registration of the design citing a priority date in India . This is the date of filing of the application in any of such countries provided the application is made in India within six months
Step 7 Determining the fee to be paid
Applications are to be accompanied by the required fee through cheque or draft payable at Kolkata or in cash (if filed in Design Office, Kolkata). Application for the registration of design is Rs 1,000 and for renewal it is Rs. 2,000.
Step 8 Ensuring all enclosures are attached
File an application only after ensuring that all enclosures and fee in the required numbers are attached. Applications can be filed in either the Design Office in Kolkata or the branch offices of the Patent office in Delhi , Mumbai, Ahmedabad or Chennai. More information on this is available on internet website http://www.patentoffice.nic.in/ipr/design/designs.htm External website that opens in a new window
Step 9 Complying with objections (if any)
If the Design Office seeks additional information or clarifications after preliminary examination, please ensure that these are provided promptly. This will help the office to take up your application for early examination.
Step 10 Providing full details
While filing an application, make sure that all contact details and addresses are clearly and legibly filled in. This will enable the office to keep in touch with you and convey decisions.