INTRODUCTION In everyday life, we use so many products of different brands, inventions that are…
The term design has been defined under section 2(d) of the Designs Act 2000 which defines design as a shape, configuration, pattern, composition of lines, ornaments, or line of colours applied to any article whether in 2D or 3D or in both, formed by any process which is industrial in nature or through any other means. The major criteria for a design to get protection is that it should be appealable to the eye.
Design does not include any principle or mode of construction or any functional aspect of a product. There are certain criteria for a design to get registered under the Act. Section 4 of the designs Act lays down the prohibitions to design registration from where the criteria for registration can be derived.
- It should be new or original
- It should not have been disclosed to the public anywhere in India or in any other country by publication in tangible form or in any other way prior to the filing date or where applicable.
- It should be significantly distinguishable from known designs or combination of known designs.
- It should not comprise of obscene or scandalous.
According to section 10 of the Designs act 2000, copyright exists in a design for a period of 10 years once it is registered. Section 22 of the said Act lays down the grounds for infringement or piracy in design which can take place only during the term in which the copyright exists in the design.
Infringement of design takes place when:
- for the purpose of sale, make or license use any of the design as registered under the Design Act, 2000 without the written consent or license of the registered proprietor;
- applies to the design or any fraudulent or obvious imitation tries for the purpose of sale, of any article or any class of article in which the design has been registered without getting consent of the person who is the registered
- Publish or expose or cause to be published or exposed for sale that article, knowing that the design or any fraudulent or obvious imitation there has been applied to any article in any class of article where the design is
In order to decide whether a fraudulent or obvious imitation of design has been made, both the designs need to be compared. The test of judging through the eye has been relied upon in majority of cases in order to decided whether ‘fraudulent’ or ‘obvious imitation’ has taken place or not. The Ld. Single Judge of the Calcutta High Court in the case of Castrol India Ltd. v. Tide Water Oil Co.(I) Ltd.1 held that the next work of the Court is to find the similarity or difference through the eye alone and where the article is an object of purchase and design applied on it should be judged through the eye of the purchaser.
In the case of Veeplast Houseware vs Bonjour International2 in which the Court considered this particular check to be confirmed from the point of view of the “customer with average knowledge and imperfect recollection”. There should be “Substantial differences” between the design which is has been already registered and which is proposed to be registered. This was discussed in a landmark case of Britannia Industries Ltd vs Sara Lee Bakery3 wherein, the infringement of the design was judged by matching the old design with the newly registered design and in the instance of substantial similarities. It was an important case since the designs of both the parties were to be considered from the perspective of a child which was found out by the Court to having substantial differences as against the contentions which were made by the plaintiff.