Infringement of Design

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.

  1. It should be new or original
  2. 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.
  3. It should be significantly distinguishable from known designs or combination of known designs.
  4. 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:

  1. 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;
  2. 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
  3. 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.

Author: Shreya Das, a student of BA LL.B(H), Amity Law School, intern at IIPRD.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

Leave a Reply

Your email address will not be published. Required fields are marked *

15 − 13 =

Archives

  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010