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UNIT 5 - notes

property law (Tamil Nadu Dr. Ambedkar Law University)

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IPR ANSWERS- UNIT V

1. MEANING OF DESIGN (book)
2. REGISTRATION OF DESIGN (book)
3. DEFINITION OF SEMICONDUCTOR INTEGRATED CIRCUIT AND
LAYOUT DESIGN (book)
4. REGISTRATION OF LAYOUT DESIGN UNDER SEMICONDUCTOR
INTEGRATED CIRCUIT LAYOUT DESIGNS ACT, 2000 (book)
5. FEATURES OF INDUSTRIAL DESIGN
6. NEED TO PROTECT INDUSTRIAL DESIGN UNDER INDUSTRIAL
DESIGNS ACT, 2000
7. FRAUDULENT OR OBVIOUS IMITATION IN THE CONTEXT OF
PIRACY OF REGISTERED DESIGN
8. COPYRIGHT IN REGISTERED DESIGNS
9. PIRACY OF REGISTERED DESIGNS
10. POWER AND DUTIES OF CONTROLLER
11. REMEDIES
V. FEATURES OF INDUSTRIAL DESIGN
• Design makes an article attractive and visually appealing, thus adding to its
commercial value.
• The original shape and external configuration of a useful object is protected by
an industrial design right.
• The protection is provided only for the appearance and not how it works.
• It can be expressed in 2D features like patterns, lines, composition, colour etc.
• The design must be original and new.
• It should not be priorly published anywhere in any country and it should not be
publicly known in India.
• India is a member of the World Trade Organization’s Paris Convention. It has
signed the Patent Cooperation Treaty which allows all the signatories of the
convention to claim priority rights.
• Under the Act of 2000, Locarno classification has been adopted in which the
classification is based only on the subject matter of design. Under the previous
provisions, the classification was made on the basis of the material which has
been used to make that material.
• The introduction of “Absolute Novelty” makes it possible to judge a novelty on
the basis of prior publication of any article. This is applicable in other countries
also.
• As per the new law, a design can be restored which was absent in the previous
enactment. Now, the registration of a design can be restored.

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• The Act allows the district courts to transfer cases to the high courts where the
jurisdiction is present. It is possible only in cases where a person is challenging
the validity of any registration.
• Laws regarding the delegation of powers of the controllers to other controllers
and the duty of examiner are also mentioned in the new Act.
• The quantum of punishment is also enhanced under the Act in case of any
infringement.
• The secrecy of two years of a registered design is also revoked.
• Provisions regarding the avoidance of certain restrictive conditions are also there
so as to regulate anti-competitive practices in contractual licenses.
• Whenever a license is brought within the domain of public records and that too
publicly, the registration is likely to be taken into consideration. Anyone can get
a certified copy of it in order to inspect the same.
• The laws regarding the substitution of the application before registering a design
are also mentioned in the new enactment.
• Under new provisions, power has been given to district court to transfer cases to
the high court where the court is having jurisdiction. This is only possible if the
person is challenging the validity of the design registration.
• Incorporates the provisions regarding delegation of powers of the controller to
other controllers and duty of examiner.
• Under the new provision, the quantum of punishment is also enhanced in case of
infringement.
• It revokes the secrecy of two years of a registered design.
• It contains provisions for the avoidance of certain restrictive conditions so as to
regulate anti-competitive practices within contractual licenses.
• The registration is taken into consideration when it is brought within the domain
of public records that too physically. Anyone can inspect the records and get a
certified copy of it.
• It contains provisions for substitution of the application before registering the
design
VI. NEED TO PROTECT INDUSTRIAL DESIGN UNDER INDUSTRIAL
DESIGNS ACT, 2000
The pre-requisites for a design to qualify for protection are as follows
• It should be novel and original.
• It should be applicable to a functional article.

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• It should be visible on a finished article.

• There should be no prior publication or disclosure of the design
Novelty and originality
A design can be considered for registration only if they are unique. A combination of
previously registered design can also be considered only if the combination produces
new visuals. In a case Hello Mineral Water PVT. LTD. v. Thermoking California Pure,
a design of water dispenser having a cylindrical shape was not considered as new on the
grounds that mere shape and form is not sufficient to prove novelty.
Design must be unique, a Prior publication is not acceptable
The design must not be a published one. If the design is already published than the
design is not eligible for the publication. There should not be any tangible copy
available already in the market if you are seeking registration of the design that is in
digital format. Displaying of the design in any fashion show by the creator is the
publication of that design. Secret and private use of the design does not amount to the
publication and can be used for the experimental purpose.
It was held in Kemp and company v. Prima Plastics LTD. that disclosure of design by
the proprietor to any third person cannot be claimed as publication provided that the
disclosure must be in good faith.
Making application of design to an Article
The applicability of the design should be to the article itself. It can be informed of a
three-dimensional figure. There are two-dimensional figures also included in this act i.e
any painting or any graffiti on the walls or print on the bedsheets.
The design must not be contrary to the order and morality
The design must be registrable under the Design Act, 2000. It must not be prohibited by
the Government of India or any institution so authorized. The design must be capable of
registering under Section 5 of this act. The design which can cause a breach of peace
and may hurt the sentiments of the people may not be allowed to get register.
VII, IX & XI. PIRACY OF REGISTERED DESIGN & REMEDIES
The very name “design piracy” has been called a misnomer, clever labelling of certain
lawful acts with the stigma of bloodshed and robbery on the high seas. Piracy of design
means the application of a design or its imitation to an article without the consent of its
proprietor is piracy of that design. Section 22 of the Designs Act, 2000 deals with
piracy. To understand piracy of design in a better way, a conjoint reading of Section 22
and Section 11 is required.
Section 11(2) reads as: “When a design is registered, the registered proprietor of the
design shall, subject to the provisions of this Act, have copyright in the design during
ten years from the date of registration.”

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Under this section, piracy is defined as: “During the existence of copyright in any
design it shall not be lawful for any person—

(i) for the purpose of sale to apply or cause to be applied to any article in
any class of articles in which the design is registered, the design or
any fraudulent or obvious imitation thereof, except with the license
or written consent of the registered proprietor, or to do anything with
a view to enable the design to be so applied, or
(ii) to import for the purposes of sale, without the consent of the
registered proprietor, any article belonging to the class in which the
design has been registered, and having applied to it the design or any
fraudulent or obvious imitation thereof; or
(iii) knowing that the design or any fraudulent or obvious imitation
thereof has been applied to any article in any class of articles in
which the design is registered without the consent of the registered
proprietor, to publish or expose or cause to be published or exposed
for sale that article”.
Section 11 gives the proprietor an exclusive right over his design and Section 22
provides safeguards against violation of that right by third parties.
Under Section 22, “fraudulent or obvious imitation” of a registered design amounts to
piracy of design. It is different from “reproduction of work or substantial part thereof”
test of copyright infringement. The test of “fraudulent and obvious imitation” declares
that the similarity or difference between the two designs must be adjudged from the
standpoint of a “customer with average knowledge and imperfect recollection”. In case
of fraudulent imitation, the copying must be done with the intention of deceiving the
other person and with the knowledge that the imitation would violate another person’s
right.
Sub-section (1) of Section 22 of the Act prohibits what cannot be done in law by ‘any
person’ during the existence of copyright in any design of a registered proprietor as
provided in sub-clauses (a), (b) and (c) of Section 22 of the Act without the consent of
the registered proprietor of such design. This shows that the infringement has to be of a
registered design only.
Sub-section (2) of Section 22 of the Act provides that if ‘any person’ acts in
contravention of Section 22 of the Act, he shall for such contravention face the
consequences viz. payment of damages, and an order of injunction from repeating such
infringement as set out in clauses (a) and (b) and the proviso to sub-section (2) of
Section 22 of the Act.
Grounds of Defence

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Section 22 (3) of the Act reads that “In any suit or any other proceeding for relief under
subsection (2), every ground on which the registration of a design may be cancelled
under section 19 shall be available as a ground of defence”. Sub-section (3) of Section
22 of the Act also provides that in any suit or any other proceedings for relief under sub-
section (2), every ground on which the registration of a design may be cancelled under
Section 19 shall be available as a ground of defence.
Earlier, the position related to Section 22(3) was that “In a suit for infringement of
design, the Defendant can challenge the validity of the Plaintiff’s registration as
provided for under Section 22(3) of the Act on the grounds provided in Section 19 of
the Act, the Plaintiff cannot invoke Section 22 of the Act to challenge the validity of a
Defendant’s registered design and such an interpretation would be contrary to the object
and intent of the Legislature in introducing Section 22(3) of the Act.
In fact, the statement of objects and reasons (clause (n) clearly states that the bill
“contains provisions for grounds of cancellation to be taken as defence in the
infringement proceedings to be initiated in any court, not below the court of the District
Judge”. To argue that the word ‘defence‘ in Section 22(3) means “defence” also
available to the Plaintiff (when the Defendant challenges the Plaintiff’s registration in
the infringement proceedings) is untenable.
Therefore, under Section 22(3) of the Act, it is only the validity of the Plaintiff’s
registered design which can be challenged as and by way of defence and not the
Defendant’s registered design which can only be challenged by proceedings under
Section 19 of the Act before the Controller.
The court in case of Whirlpool of India Ltd. v. Videocon Industries Ltd explained that
“the Plaintiff’s point of view, the exclusive right which a registered proprietor can claim
against “any person” and on the strength of which he can claim relief under Section 22
against such person, is itself subject to the restriction contained in sub-section (3) of
Section 22, namely, the Plaintiff- proprietor’s registration should not be liable to be
cancelled under Section 19 of the Act.
If it is held to be so liable, that is a complete defence to the Plaintiff-Proprietor’s action
for claiming relief under Section 22. Equally would the provisions of Section 22, a
restriction on the Defendant-Proprietor’s exclusive right to apply his registered design
to his article.
The Defendant-proprietor would have a complete defence to the Plaintiff-Proprietor’s
action only if his (the Defendant’s) registration is prior in point of time since such prior
registration is a ground for cancellation of the Plaintiff’s registration.
A Defendant proprietor, who holds a subsequent registration cannot plead his
subsequent registration in defence to an action under Section 22, since a subsequent
registration is no defence within the meaning of Section 22(3) read with Section 19.
That is an obvious consequence of Section 22 from the defendant’s point of view.

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The Court may consider both the Plaintiff’s and the Defendant’s registrations in the
light of Section 22(3) and grant or reject the relief to a Plaintiff depending on whose
registration is prior in point of time.
Upon such determination, the decision may have to be sent to the Controller, who shall
cause an entry to be made accordingly in the Register qua the Plaintiff’s or the
Defendant’s registration, as the case may be”. Hence, both Plaintiff and Defendant can
take recourse of section 19.
Remedies against piracy of designs
Cancellation of Design
Section 19 of the Designs Act, 2000 provides for cancellation of design anytime during
the subsistence of the design registration, any person can seek cancellation of the same
by filing a Petition before the Controller, on the following grounds for Cancellation of
design registration:
• that the design has been previously registered in India; or
• that it has been published in India or in any other country prior to the date of
registration; or
• that the design is not a new or original design; or
• that the design is not registrable under this Act; or
• that it is not a design as defined under clause (d) of section 2
Compensation
Section 22(2) provides that any fraudulent or obvious imitation of a registered design
without the consent of the proprietor is unlawful and also prohibits the import of such
material which closely resembles a registered design. The section provides that in a civil
case compensation payable shall not exceed Rs. 50,000/- in respect of infringement of
one registered design.
The compensation payable is statutorily limited; this becomes a good ground for
seeking an interim injunction even before the commencement of trial.
XIII. COPYRIGHT IN REGISTERED DESIGN
11. COPYRIGHT ON REGISTRATION
(1) When a design is registered, the registered proprietor of the design shall, subject to
the provisions of this Act, have copyright in the design during ten years from the date of
registration.
(2) If, before the expiration of the said ten years, application for the extension of the
period of copyright is made to the Controller in the prescribed manner, the Controller
shall, on payment of the prescribed fee, extend the period of copy-right for a second
period of five years from the expiration of the original period of ten years.

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12. RESTORATION OF LAPSED DESIGNS

(1) Where a design has ceased to have effect by reason of failure to pay the fee for the
extension of copyright under sub-section (2) of section 11, the proprietor of such design
or his legal representative and where the design was held by two or more persons
jointly, then, with the leave of the Controller one or more of them without jointing the
others, may, within one year from the date on which the design ceased to have effect,
make an application for the restoration of the design in the prescribed manner on
payment of such fee as may be prescribed.
(2) An application under this section shall contain a statement, verified in the prescribed
manner, fully setting out the circumstances which led to the failure to pay the prescribed
fee, and the Controller may require from the applicant such further evidence as he may
think necessary.
13.PROCEDURE FOR DISPOSAL OF APPLICATIONS FOR RESTORATION
OF LAPSED DESIGNS
(1) If, after hearing the applicant in cases where the applicant so desires or the
Controller thinks fit, the Controller is satisfied that the failure to pay the fee for
extension of the period of copyright was unintentional and that there has been no undue
delay in the making of the application, the Controller shall upon payment of any unpaid
fee for extension of the period of copyright together with prescribed additional fee
restore the registration of design.
(2) The Controller may, if he thinks fit as a condition of restoring the design, require
that any entry shall be made in the register of any document or matter which under the
provision of this Act, has to be entered in the register but which has not been so entered.
14.RIGHTS OF PROPRIETOR OF LAPSED DESIGN WHICH HAVE BEEN
RESTORED
(1) Where the registration of a design is restored, the rights of the registered proprietor
shall be subject to such provisions as may be prescribed and to such other provisions as
the Controller thinks fit to impose for the protection or compensation of persons who
may have begun to avail themselves of, or have taken definite steps by contract or
otherwise to avail themselves of, the benefit of applying the design between the date
when the registration of the design ceased to have effect and the date of restoration of
the registration of the design.
(2) No suit or other proceeding shall be commenced in respect of piracy of a registered
design or infringement of the copyright in such design committed between the date on
which the registration of the design ceased to have effect and the date of the restoration
of the design.
15. REQUIREMENTS BEFORE DELIVERY ON SALES
(1) Before delivery on sale of any articles to which a registered design has been applied,
the proprietor shall-

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(a) (if exact representations or specimens were not finished on the application for
registration) furnish to the Controller the prescribed number of exact representations or
specimens of the design; and, if he fails to do so, the Controller may, after giving notice
thereof to the proprietor, erase his name from the register and thereupon the copyright in
the design shall cease; and
(b) cause each such article to be marked with the prescribed mark, or with the
prescribed words or figures denoting that the design is registered; and, if he fails to do
so, the proprietor shall not be entitled to recover any penalty or damages in respect of
any infringement of his copyright in the design unless he shows that he took all proper
steps to ensure the marking of the article, or unless he shows that the infringement took
place after the person guilty thereof knew or had received notice of the existence of the
copyright in the design.
(2) Where a representation is made to the Central Government by or on behalf of any
trade or industry that in the interest of the trade or industry it is expedient to dispense
with or modify as regards any class or description of articles any of the requirements of
this section as to marking, the Central Government may, if it thinks fit, by rule under
this Act, dispense with or modify such requirements as regards any such class or
description of articles to such extent and subject to such conditions as it thinks fit.
16. EFFECT OF DISCLOSURE ON COPYRIGHT
The disclosure of a design by the proprietor to any other person, in such circumstances
as would make it contrary to good faith for that other person to use or publish the
design, and the disclosure of a design in breach of good faith by any person, other than
the proprietor of the design, and the acceptance of a first and confidential order for
articles bearing a new or original textile design intended for registration, shall not be
deemed to be a publication of the design sufficient to invalidate the copyright thereof if
registration thereof is obtained subsequently to the disclosure or acceptance.
17. INSPECTION OF REGISTERED DESIGNS
(1) During the existence of copyright in a design, any person on furnishing such
information as may enable the Controller to identify the design and on payment of the
prescribed fee may inspect the design in the prescribed manner.
(2) Any person may, on application to the Controller and on payment of such fee as may
be prescribed, obtain a certified copy of any registered design.
18. INFORMATION AS TO THE EXISTENCE OF COPYRIGHT
On the request of any person furnishing such information as may enable the Controller
to identify the design, and on payment of the prescribed fee, the Controller shall inform
such person whether the registration still exists in respect of the design, and, if so, in
respect of what classes of articles, and shall state the date of registration, and the name
and address of the registered proprietor.
19. CANCELLATION OF REGISTRATION

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(1) Any person interested may present a petition for the cancellation of the registration
of a design at any time after the registration of the design, to the Controller on any of
the following grounds, namely:-
(a) that the design has been previously registered in India; or
(b) that it has been published in India or in any other country prior to the date of
registration; or
(c) that the design is not a new or original design; or
(d) that the design is not registrable under this Act; or
(e) it is not a design as defined under clause (d) of section 2.
(2) An appeal shall lie from any order of the Controller under this section to the High
Court, and the Controller may at any time refer any such petition to the High Court, and
the High Court shall decide any petition so referred.
20. DESIGNS TO BIND GOVERNMENT
A registered design shall have to all intents the like effect as against the Government as
it has against any person and the provisions of Chapter XVII of the Patents Act,
1970 (39 of 1970) shall apply to registered designs as they apply to patents.
X. POWER AND DUTIES OF CONTROLLER
A Controller defined under Section 3(1) of the Design Act, 2000, means the Controller
General of Designs, Patents, and Trade Marks. The controller can be interpreted as
including a reference to any officer discharging the functions of Controller in pursuance
of Section 3(3) of the Design Act, 2000.
Powers of a Civil Court
As per Section 32 of the Design Act, 2000, in any proceedings before the Controller
under the Design Act, 2000, the Controller has the powers of a civil court for the
purpose of:
• receiving of evidence;
• administering oaths;
• administering the attendance of the witnesses;
• proceedings for convincing the discovery and production of the essential
documents;
• issuing commissions for the examination of witnesses; and
• awarding costs, such an award will be executable as a decree of a Civil Court.
Power of Awarding costs
As per Section 32 of the Design Act, 2000, read with Rule 43 of the Design Rules,
2001, in all the civil proceedings before the Controller of Design under the Design Act,
2000, the Controller can award any such costs as he/she considers reasonable, having in

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regard all the different circumstances of the case. However, Controller of Design cannot
award the maximum amount of cost in a civil proceeding to a party, with respect to a
matter given in the Fourth Schedule of the Design Act, 2000. The maximum amount of
cost should not exceed the mentioned therein in the Fourth Schedule.
Power to seek directions of the Central Government
As per Section 34 of the Design Act, 2000, in a case whenever, the Controller of Design
has difficulty or doubt in the administration of any of the provisions provided under
the Design Act, 2000, he/she can seek the directions of Central Government in the
difficult or doubtful matter.
Powers of Controller of Design to Exercise Discretionary Powers
As per Section 33 of the Design Act, 2000, read with Rule 44 of the Design Rules,
2001, the discretionary power the Controller can exercise is as follows:
• The Controller should give an opportunity of being heard to the party with at
least 10 days’ prior notice, before acting adverse to any party.
• The Controller of Design should exercise the discretionary powers judiciously
with caution and due care and not in an arbitrary manner.
• Reasons for any adverse decision given by the Controller is required to be
recorded in the file by the Controller of Design.
Power of Controller of Design to correct clerical errors
On a request made by a person in Form-14 along with the prescribed fees, as
per Section 29 of the Design Act, 2000, the Controller of Design is required to correct
any clerical error in the representation of a Design or in the address or name of the
owner or proprietor of any Design, or in any other matter, which has been already
entered upon in the Register of Designs at the Design Office.
Powers of Controller of Design to Require Statements
As per Rule 45 of the Design Rules, 2001, the Controller of Design may require the
statements concerning whether an agent or applicant desires to be heard or not. The
Controller of Design may at any time require the agent or applicant to submit a
statement in writing within the prescribed time period, or to attend before him/her and
make explanations with regard to such matters as the Controller of Design may require
him/her to make.
General Power of Amendment
As per Rule 46 of the Design Rules, 2001, the General Power of Amendment the
Controller of Design has is as follows:
• No special provision is made in the Design Act, 2000, regarding any document
for its amendment, can be amended, by the Controller of Design. Any

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irregularity in procedure of amendment which, in the opinion of the Controller

of Design, may be removed without damaging the interest of any person. The
procedure of amendment can also be corrected if the Controller of Design thinks
fit to do so, and upon such terms as directed by him/her.
• The applicant is required to file a petition stating the amendment required for the
reasons. The required fee should also be submitted with the petition of the
applicant.
• The Controller of Design while considering amendment petitions of an
applicant, can remove only those irregularities which do not damage the interest
of the applicant or any other person.
• Furthermore, only those amendments for which no special provision is provided
in the Design Act, 2000, and which can be made without any damage to the
interests of any person are only allowable by the Controller of Design.
• Generally, a failure to act within the prescribed time period will not be
considered as an irregularity, that is capable of being removed.
• If any amendment is required to be made resulting from certain mistake that is
made on part of the Design Office, no fees should be charged.
General Powers of Controller of Design for extension of time
As per the Rule 46 of the Design Act, 2001, the general power for the extension of
time with the Controller of Design is as follows:
• The time period prescribed by the Design Rules, 2001, for taking any
proceeding or doing any act, for which there is no special provision is made in
the Design Act, 2000, can be extended by the Controller of Design, for a time
period which should not exceed 3 months, if he/she thinks fit, and upon such
terms and conditions as he/she may direct.
• The petition filed by the applicant should explain in detail the circumstances that
require the extension of the time period and also the reasons supporting such
circumstances.
• Extension of time period should be allowed only in cases where there is no
special provision for extension of time is provided in the Design Rules,
2001. When a time limit is specifically prescribed in the Design Act,
2000, itself, no extension of time period can be claimed under this
provision.
The other Powers of Controller of Design under the Design Act, 2000, and the Design
Rules, 2001 are as follows:
• Under Section 45 of the Design Act, 2000, the Controller of Designs is required
to prepare an annual report of the day to day activities of the Designs Wing. The

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Annual Report prepared by the Controller of Design is placed by the Central

Government before both the Houses of the Parliament.
The Annual Report of the Design Wing prepared by the Controller comprises
information on the following:
• A brief about the activities during the year;
• Design Applications that are filed and registered;
• The Examination;
• The Cancellations;
• The Restoration;
• The extension of Copyrights;
• The requests for inspection of the registered designs;
• The certified copies;
• The assignments;
• The various Designs in force;
• The total revenue.
The Annual Report submitted by the Controller of Design is required to be uploaded on
the official website (www.ipindia.nic.in) after the same has been placed before both
Houses of the Parliament.
• As per Section 37 of the Design Act, 2000, the Controller of Design can also
take evidence through viva voce, in addition to an affidavit, or can allow the
cross-examination of any party on the contents of his/her affidavit.
• As per Section 9 of the Design Act, 2000, the Controller of Design can furnish
one or more copies of the certificate to the proprietor of Design, in case the
original certificate is lost by the proprietor.
• As per Rule 31 of the Design Rules, 2001, the Controller of Design can require
such proof of alteration so requested as he/she may think fit before acting on the
alteration request.
• Under Section 17 (1) of the Design Act, 2000, the Controller of Design can
require the inspection of Registered Design and also the Register of Designs.
• As per Rule 39 of the Design Rules, 2001, after hearing both the parties, or if
neither of the party’s desires to be heard, then without a hearing, the Controller
of Design should decide the application for Rectification of Design and issue a
speaking order. The decision of Controller of Design is required to be notified to
the parties and should be published in the Official Journal.

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• As per Rule 24 of the Design Rules, 2000, the Controller of Design can pass a
speaking order allowing for the Restoration of Design.
• As per Rule 29 of the Design Rules, 2001, after hearing both the parties, or if
neither of the party’s desires to be heard, then without a hearing, the Controller
of Design should decide the petition for the Cancellation of Design and issue a
speaking order in the same regard. The decision of Controller of Design should
be notified to both the parties and should be published in the Official Journal.
• As per Section 9 of the Design Act, 2000, the Controller of Design upon
registration should issue a certificate of registration of Design to the proprietor
of the Design.
Conclusion
The provisions related to the General Powers of Controller of Design are provided
under the Design Act, 2000, and the Design Rules, 2001. The Controller of Design is
the main person responsible for the administration of the Design system in India.

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