The Law of Designs in India: Theory and Application

Part I: Theoretical Foundations of Design Law

1. Introduction to Industrial Designs and their Protection

Industrial design protection is a critical facet of intellectual property rights,

safeguarding the aesthetic and ornamental aspects of an article arising from design
activity. It is distinct from other forms of intellectual property, such as patents which
protect functional inventions, or trademarks which protect brand identity. The core
purpose of design law is to encourage creativity in the industrial context, ensuring
that designers can reap the commercial benefits of their appealing creations.
● Defining "Design": Scope and Exclusions
The concept of "design" in the legal context is specifically tailored to protect the
visual appearance of an article. Under the Indian Designs Act, 2000, a "design" is
defined as encompassing only the features of shape, configuration, pattern,
ornamentation, or the composition of lines or colors applied to any article. This
application can be to two-dimensional (e.g., textile patterns) or three-
dimensional (e.g., the shape of a bottle) forms, or both, and must be achieved
through an industrial process or means, whether manual, mechanical, chemical,
separate, or combined (1). Crucially, these features, in the finished article, must
appeal to and be judged solely by the eye (3). This aesthetic focus is paramount
and distinguishes design protection from other intellectual property rights (5).
The "judged solely by the eye" criterion serves as a fundamental gatekeeper for
design registration. This phrase is not merely descriptive but acts as a primary
filter, dictating that a design's registrability hinges entirely on its visual impact,
irrespective of its functional efficiency or technical merit (4). This effectively
separates design from patent protection, which centers on functionality, and
underscores the aesthetic commercial advantage that design law seeks to
protect. If a design's features are not visually discernible in the finished article in
its normal state of use, or if their appeal is intrinsically tied to how they function
rather than how they look, they fall outside the scope of design protection. This
subjective yet critical criterion can lead to challenges during examination and in
litigation, as "appeal to the eye" can be open to varied interpretations.
Furthermore, it generally means that designs for internal parts of an article, which
are not visible in the final product during its normal use, are not protectable
under design law (8).
The definition of design under the Indian Designs Act, 2000, also explicitly
 excludes several subject matters. These exclusions are vital for maintaining the
distinctiveness of design protection:
1. Any mode or principle of construction, or anything which is in substance a
mere mechanical device (1). This reinforces the non-functional nature of
design protection.
2. Any trademark as defined under the Trade and Merchandise Marks Act, 1958
(now the Trademarks Act, 1999), or any property mark (1).
3. Any artistic work as defined under Section 2(c) of the Copyright Act, 1957 (1).
The interaction between design law and copyright law is complex and is
subject to specific statutory provisions.
4. Anything that is scandalous, offensive, obscene, or contrary to public order or
morality (5).
5. Layout-designs of integrated circuits, which are protected under separate
legislation (7).
The term "article" is also specifically defined under Section 2(a) of the Designs
Act, 2000, as "any article of manufacture and any substance, artificial, or partly
artificial and partly natural; and includes any part of an article capable of being
made and sold separately" (2). This definition implies that the subject of design
protection must be a tangible product of an industrial process. Items such as
stamps, labels, tokens, or cards are not considered registrable articles if, upon
removal of the alleged design, only a piece of paper or similar material remains,
and the article as referred to ceases to exist (5). The design must be integral to an
article that has an existence independent of the design applied to it.
● Objectives of Design Law: Fostering Innovation and Economic Growth
The primary objective of design law, as exemplified by the Indian Designs Act,
2000, is to protect the intellectual property rights associated with original and
aesthetically appealing designs (10). By granting legal protection, the law aims to
compensate innovators for their dedicated study, research, and creative efforts
in producing novel visual features for articles of manufacture (10). This protection
serves as a significant economic incentive, encouraging designers and
businesses to invest in the development of new and unique products, thereby
enhancing their commercial value and market appeal (5).
The grant of exclusive rights to the proprietor of a registered design is intended
to advance industries by fostering a climate of innovation and maintaining a high
level of competitiveness (10). When businesses can protect the unique
appearance of their products, they are more likely to invest in design as a
differentiator, leading to a wider variety of aesthetically pleasing goods for
consumers and contributing to overall economic growth (11). Furthermore, design
 enforcement can play a role in preserving cultural and aesthetic diversity by
protecting unique designs that may hold cultural significance (12).
While the objective is to reward creators, design law, like other intellectual
property regimes, seeks to strike a balance between the rights of the innovator
and the interests of the public. This is reflected in the limited duration of design
protection – in India, an initial term of ten years, extendable by a further five
years, for a maximum of fifteen years (1). This limited monopoly provides a
sufficient period for the proprietor to commercially exploit the design and recoup
investment, while also ensuring that designs eventually enter the public domain.
Once in the public domain, these designs can be freely used by others,
potentially inspiring further innovation and preventing the creation of perpetual
monopolies on aesthetic features. This finite term of protection distinguishes
design rights from potentially perpetual trademark protection or the longer terms
typically associated with copyright, highlighting the specific commercial lifecycle
envisioned for industrial designs. Designers and businesses must, therefore, be
cognizant of this limited timeframe when formulating their intellectual property
strategies.
● Historical Context of Design Protection in India
The current framework for design protection in India is governed by the Designs
Act, 2000, which came into effect on May 11, 2001 (1). This legislation repealed
and replaced the earlier Designs Act, 1911 (2). The enactment of the Designs Act,
2000, was a significant step towards modernizing India's design law and aligning
it with international standards, particularly the requirements of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), to
which India is a signatory (3).
The transition from the 1911 Act to the 2000 Act was not merely a procedural
update but represented a substantive overhaul of the design protection regime in
India. This legislative evolution was catalyzed by India's accession to the World
Trade Organization (WTO) and the consequent need to comply with the TRIPS
Agreement. This demonstrates how international intellectual property
frameworks can significantly influence and drive domestic legal reforms. The
Designs Act, 2000, introduced several key changes, including the adoption of the
Locarno Classification system for goods and the principle of "absolute novelty"
for judging the registrability of designs (3). These changes were aimed at bringing
Indian design law in par with global practices, thereby facilitating international
trade and protecting the interests of designers more effectively. This highlights
the dynamic nature of intellectual property law, which continuously evolves in
 response to international trade dynamics, technological advancements, and
changing economic priorities. It also suggests that future amendments to Indian
Design Law may continue to be influenced by ongoing developments in the
international IP landscape.

Part II: The Indian Designs Act, 2000: A Comprehensive Analysis

2. The Designs Act, 2000: Core Provisions

● Overview and Salient Features
The registration and protection of industrial designs in India are primarily
administered by the Designs Act, 2000, and the corresponding Designs Rules,
2001 (1). The Rules have seen subsequent amendments, notably in 2008, 2014,
and 2021, to refine procedures and adapt to evolving needs (5). The Act is a
comprehensive piece of legislation that aims to balance the protection of
registered designs with the promotion of design activity (16).
Several salient features distinguish the Designs Act, 2000:
1. Locarno Classification: The Act mandates the use of the Locarno
Classification, an international system for classifying goods for the
registration of industrial designs. This classification is based on the subject
matter of the design, rather than the material used to make the article, as was
the case under the previous regime (1). This harmonization facilitates
international comparisons and applications.
2. Absolute Novelty: A design, to be registrable, must be new and must not
have been published or used anywhere in the world before the date of filing
of the application or its claimed priority date (3). This is a significantly stricter
standard than relative novelty, which might only consider disclosures within
the country of application.
3. First to File, First to Get: The Act adheres to the "first to file, first to get"
principle, meaning that if multiple applications are filed for the same or similar
design, the one with the earliest effective filing date will be granted
registration, assuming all other criteria are met (3). This underscores the
importance of prompt filing by innovators.
4. Restoration and Reinstatement: The Act includes provisions for the
restoration of designs that have lapsed due to non-payment of renewal fees
and for the reinstatement of registration under certain conditions (3).
5. Enforcement and Anti-Competitive Practices: The Act provides for more
stringent punishments for the piracy (infringement) of registered designs
compared to the earlier law. It also contains provisions concerning the
 regulation of anti-competitive practices within contractual licenses related to
designs (3).
6. Administrative Authority: The Office of the Controller General of Patents,
Designs, and Trade Marks (CGPDTM), under the Department for Promotion of
Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry, is
responsible for administering the Designs Act (1). The main Designs Wing of
the Patent Office, which handles the examination and registration of designs,
is located in Kolkata (1).
● Definition of "Design" and "Article" under the Act
The precise definitions of "design" and "article" are foundational to
understanding the scope of protection offered by the Designs Act, 2000.
○ "Design" (Section 2(d)): The Act defines "design" as: "...only the features of
shape, configuration, pattern, ornament or composition of lines or colours
applied to any article...source as defined in clause (v) of sub-section (1) of
section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as
defined in section 479 of the Indian Penal Code or any artistic work as defined
in clause (c) of section 2 of the Copyright Act, 1957" (2). This definition is
crucial as it delineates what aesthetic features are protectable and explicitly
carves out functional aspects, trademarks, and artistic works covered by
copyright.
○ "Article" (Section 2(a)): The Act defines "article" as: "...any article of
manufacture and any substance, artificial, or partly artificial and partly
natural; and includes any part of an article capable of being made and sold
separately" (2). This definition is broad, encompassing a wide range of
manufactured goods. The inclusion of "any part of an article capable of being
made and sold separately" is significant for component designs.
The definitions of "design" and "article" are intrinsically linked and
interdependent. A design, under the Act, cannot exist in the abstract; it must be
applied to or embodied in a tangible "article." The nature and characteristics of
the article itself—specifically, its status as an "article of manufacture" and, if it's a
component, its capability of being made and sold separately—directly influence
whether the design applied to it is registrable. For instance, a design applied to
something that does not qualify as an "article of manufacture" (e.g., a naturally
occurring substance that has not undergone any manufacturing process) would
not be eligible for registration. Similarly, for designs pertaining to parts of
articles, the condition that such parts must be "capable of being made and sold
separately" is a key consideration. If a part is integral to a larger product and has
no independent commercial existence or utility as a separate item, a design solely
for that part may face challenges in registration. Applicants must therefore
 carefully consider not only the aesthetic features of their creation but also the
nature of the article to which these features are applied to ensure compliance
with the statutory definitions.
● Criteria for Registrability:
For a design to be registrable under the Designs Act, 2000, it must satisfy
several key criteria:
○ Novelty and Originality:
■ Novelty (New): The design must be new. This implies that it should not
have been anticipated by prior publication in any tangible form or by prior
use, or in any other way, anywhere in the world before the effective date
of application (i.e., the filing date in India or the claimed priority date from
a convention country) (3). This is the principle of "absolute novelty" (3).
The Act does provide for certain exceptions to prior publication, such as
disclosure in breach of good faith or disclosure at an officially recognized
exhibition, provided the application for registration is filed within a
specified period thereafter (Section 16 and Section 21 of the Act) (20).
■ Originality: Section 2(g) of the Act defines "original", in relation to a
design, as "originating from the author of such design and includes the
cases which though old in themselves yet are new in their application" (2).
This means that even if the elements of a design are known, if their
application to a particular article is new and results in a visually distinct
appearance for that article, it may be considered original. For example,
applying a known shape, like that of the "Kutub Minar," to a new article,
such as a cigarette holder, could be registrable if it imparts a novel
appearance to the holder (8). However, trivial or commonplace variations
of known designs would not meet the originality standard.
■ Significantly Distinguishable: The design must be significantly
distinguishable from known designs or combinations of known designs (5).
Mere trade variations or minor alterations that do not substantially alter
the overall visual impression of a known design are not considered
registrable (5).
The requirement for "absolute novelty" is a stringent one and acts as a
double-edged sword. On one hand, it ensures that only genuinely new
designs receive the benefit of statutory protection, thereby fostering true
innovation. On the other hand, it places a considerable onus on applicants to
ensure that their design has not been disclosed anywhere in the world before
the crucial filing or priority date (3). An inadvertent prior disclosure, even if
made by the designer themselves (unless covered by specific statutory
 exceptions), can be fatal to the validity of the design registration. This
includes disclosures through online platforms, public exhibitions (unless
specific conditions for official exhibitions are met), sales, or even confidential
disclosures made without appropriate non-disclosure agreements.
Consequently, designers and businesses must exercise extreme caution
regarding any pre-filing activities that could amount to public disclosure and
should implement a robust pre-filing strategy to safeguard the novelty of
their designs.
○ Industrial Application:
■ The design must be applied or applicable to an article by an industrial
process or means. This can include manual, mechanical, or chemical
processes, whether separate or combined (3). This criterion emphasizes
that design protection is intended for designs that are capable of mass
production or reproduction through industrial techniques. It generally
excludes purely artistic works, such as one-off paintings or sculptures,
which are not intended for industrial production in bulk and are typically
protected under copyright law (8).
○ Visual Appeal (Judged solely by the eye):
■ The features of the design, as they appear in the finished article, must
appeal to and be judged solely by the eye (1). This is a cornerstone of
design protection. It means that the aesthetic quality of the design is
paramount, and any functional advantages or technical construction
methods are irrelevant for the purpose of design registration. The design
must be visible on the finished article when it is in its normal state of use
(8). For example, the internal arrangement of a box or a purse, which is not
visible when the article is closed and put on the market, would generally
not be registrable as a design feature.
● Non-Registrable Designs (Section 4 of the Act)
Section 4 of the Designs Act, 2000, explicitly prohibits the registration of certain
types of designs. These prohibitions serve as a crucial proactive filter, preventing
the design registration system from being burdened with applications for subject
matter that is either not a true "design" in the legal sense or is contrary to public
policy or other laws. This statutory guidance helps applicants in self-assessing
the potential registrability of their creations and directs them towards more
appropriate forms of intellectual property protection if design law is not suitable.
It also provides a clear basis for examiners at the Patent Office to refuse
applications that fall within these excluded categories, thereby maintaining the
integrity and focus of the design register.
 The following designs are not registrable under the Act (20):
1. Any design which is not new or original.
2. Any design which has been disclosed to the public anywhere in India or in any
other country by publication in tangible form or by use or in any other way
prior to the filing date, or where applicable, the priority date of the
application for registration (subject to certain exceptions like disclosure at
official exhibitions under Section 21 or breach of good faith under Section 16).
3. Any design which is not significantly distinguishable from known designs or
combinations of known designs.
4. Any design which comprises or contains scandalous or obscene matter (5).
5. Any design which is contrary to public order or morality (5).
6. Any design which would be prejudicial to the security of India (a ground for
refusal by the Controller under Section 35, if directed by the Central
Government).
7. Any mode or principle of construction or anything which is in substance a
mere mechanical device (1).
8. Any trademark as defined in the Trademarks Act, 1999, or a property mark as
defined in the Indian Penal Code, or an artistic work as defined in Section 2(c)
of the Copyright Act, 1957 (1).
9. Layout-designs of integrated circuits (7).
10. Certain specific items are also generally considered non-registrable if the
design is not integral to an article having an independent existence, such as
books, calendars, certificates, dressmaking patterns, greeting cards, leaflets,
maps and plan cards, postcards, stamps, and medals (5 referring to labels,
tokens, cards).

3. Registration of Designs in India

● The Proprietor of a Design (Section 2(j) of the Act)
The term "proprietor of a new or original design" is defined in Section 2(j) of the
Designs Act, 2000. Understanding who qualifies as a proprietor is essential as
only such a person can apply for and own a registered design (3). The Act outlines
three scenarios (2):
1. Author as Proprietor: In the default case, the author of the design is
considered the first proprietor.
2. Commissioned Work: Where the author of the design executes the work for
some other person for good consideration (e.g., an employee creating a
design for an employer, or a designer commissioned by a client), that other
 person for whom the design is so executed is deemed the proprietor.
3. Acquisition of Rights: Where any person acquires the design or the right to
apply the design to any article, either exclusively or otherwise, that person
becomes the proprietor to the extent of the acquired right. This covers
assignments and other transfers of ownership. Furthermore, if the property
in, or the right to apply, the design has devolved from the original proprietor
to another person (e.g., through inheritance or succession), that other person
is included in the definition of proprietor. Any person claiming to be such a
proprietor of a new or original design not previously published in any country
can file an application for registration (3). This includes individuals,
partnerships, and corporate bodies.
● Application Process: Step-by-Step
The process for registering a design in India involves several key steps, primarily
governed by the Designs Act, 2000, and the Designs Rules, 2001 (and its
amendments). The Manual of Designs Practice and Procedure provides detailed
guidance on these steps (9).
1. Filing of Application (Form-1):
■ The application for registration of a design must be made in Form-1 (7).
■ It should be addressed to the Controller of Designs and can be filed at
the Patent Office in Kolkata or its branch offices in Delhi, Mumbai, or
Chennai. Applications filed at branch offices are transmitted to Kolkata
for processing (1).
■ The application must contain the full name, address, and nationality of the
applicant(s); the name of the article to which the design is to be applied;
the class number of the article according to the Locarno Classification (as
per the Third Schedule of the Design Rules, 2001); and an address for
service in India. Providing an address for service in India is mandatory,
especially for foreign applicants (9).
■ The prescribed fee must accompany the application (3). The fee varies
based on whether the applicant is a natural person, a small entity, or
other than a small entity.
■ If claiming priority from an earlier application filed in a convention country
(under the Paris Convention), this must be indicated in the application.
Such a "reciprocity application" must be filed within six months from the
date of the first filing in the convention country (9).
2. Representation of Design:
■ The application must be accompanied by two identical copies of the
 representation of the design (9).
■ Representations should be on good quality A4 size white paper and must
clearly show the article to which the design is applied, illustrating all its
features (6).
■ These representations can be in the form of drawings, photographs,
tracings, or computer-generated graphics. If specimens of the article are
small enough, they might be accepted in some cases (9).
■ Multiple views of the article (e.g., front, back, top, bottom, left side, right
side, and perspective views) are generally required to fully disclose the
design (5). The views should be consistent and accurately depict the
design.
■ Each representation sheet must bear an endorsement of a "Statement of
Novelty," clearly specifying the particular features of the shape,
configuration, pattern, ornament, or composition of lines or colors for
which novelty is claimed (7). For example, "The novelty resides in the
specific shape and configuration of the [article name] as illustrated."
■ If the design includes features that are purely functional or elements like
words, letters, numerals, or trademarks for which protection is not sought
under the Designs Act, a disclaimer to that effect should also be included
in the representation sheets (9).
3. Supporting Documents:
■ Power of Attorney (Form-21): If the application is filed by a patent agent
or a legal practitioner on behalf of the applicant, a duly executed Power
of Attorney in Form-21 must be submitted (7). This form needs to be
stamped according to the Indian Stamp Act.
■ Priority Document: For convention applications claiming priority, a
certified copy of the priority application (the first application filed in a
convention country) must be filed. This can be submitted along with the
Indian application or within three months from the date of filing the Indian
application (this period can be extended by filing Form-18 along with the
prescribed fee) (6).
■ Other Documents: Depending on the specific case, other documents like
affidavits or declarations may be required (21).
4. Acknowledgement and Examination:
■ Upon receipt of the application, the Patent Office assigns an application
number and a date of filing. A formal receipt is issued (9).
■ The application is then formally and substantively examined by an
 Examiner of Designs at the Patent Office, Kolkata (1).
5. Responding to Objections:
■ If the Examiner raises any objections (either formal or substantive), these
are communicated to the applicant in an Examination Report (1).
■ The applicant is typically given six months from the official date of the
examination report to comply with the objections or submit a reply
contesting them. This period can be extended by a further three months
upon filing Form-18 with the prescribed fee (5).
■ If the applicant fails to put the application in order for acceptance within
this period, the application may be treated as abandoned or refused (5).
■ The applicant can request a hearing if they wish to make oral submissions
regarding the objections (1).
● Examination Procedure and Common Objections
The examination of a design application is a critical stage that determines its
registrability. The process involves both formality checks and substantive
evaluation by an Examiner of Designs (9).
○ Formality Check: The Examiner first verifies that the application complies
with all procedural requirements. This includes:
■ Correctness and completeness of Form-1 and other accompanying forms.
■ Payment of the prescribed fees.
■ Accurate details of the applicant, article, and class number.
■ Properly prepared representation sheets (clarity, number of views, size,
etc.).
■ Submission of a valid Power of Attorney (if applicable).
■ Timely submission of priority documents for convention applications. The
Manual of Designs Practice and Procedure notes that a significant
majority, around 90%, of initial objections are related to such formality
issues, which can lead to considerable delays in the disposal of
applications if not addressed promptly and correctly (9).
○ Substantive Examination: This part of the examination assesses the
inherent registrability of the design itself. The Examiner considers:
■ Whether the subject matter falls within the definition of "design" under
Section 2(d) of the Act.
■ Whether the design is "new or original" as required by Section 4. This
involves conducting a search for prior art, including previously registered
or published designs, both in India and globally.
■ Whether the design is contrary to public order or morality, or prejudicial
 to the security of India.
■ Whether the design is excluded from registration (e.g., being a mere
mechanical device, a trademark, or an artistic work as defined under the
Copyright Act).
○ Common Objections: Applicants often face objections such as:
■ Lack of Novelty or Originality: The design is found to be anticipated by
prior publications or existing designs.
■ Design is Primarily Functional: The features for which protection is
sought are dictated by their function rather than their visual appeal.
■ Improper Representation: Representation sheets may be unclear, lack
sufficient views to disclose the design fully, include descriptive matter or
dimensions (which are generally not allowed), or contain views that are
inconsistent with each other. Sectional views are typically not permitted
unless they are used to illustrate a surface pattern, ornamentation, or the
shape/configuration of an article as a whole (9).
■ Incorrect Classification: The article has been assigned to an incorrect
class under the Locarno Classification.
■ Vague or Improper Statement of Novelty: The statement of novelty
may be too broad, too narrow, or may not clearly identify the specific
features claimed as novel.
■ Missing Disclaimers: Failure to disclaim non-registrable matter (e.g.,
purely functional elements, words, letters) that may be part of the overall
representation.
The representation sheets and the statement of novelty play a pivotal role in
the design application and its subsequent enforcement. These documents are
not mere formalities; they are the visual and textual embodiment of the design
claim and define the precise scope of the protection being sought (7). Any
ambiguity, inadequacy, or error in these elements can lead to objections
during examination, refusal of the application, or, even if registered, can result
in a weakened design right that is vulnerable to cancellation or difficult to
enforce effectively against infringers. The Manual of Designs Practice and
Procedure specifically highlights that poorly prepared representations are a
major source of objections (9). Therefore, applicants must invest considerable
effort and attention in preparing high-quality, clear, and comprehensive
representations from all necessary angles, along with a precise and well-
drafted statement of novelty. This foundational work is critical for securing a
robust and defensible design registration.
○ Response Strategy: When objections are raised, applicants must submit a
detailed written response addressing each objection. This may involve
 amending the application (e.g., revising the statement of novelty, improving
representations, adding disclaimers) or providing arguments and evidence to
counter the Examiner's findings (7). If the Examiner is still not satisfied, a
hearing may be offered.
● Publication and Certificate of Registration
If the Controller is satisfied that the application meets all the requirements of the
Act and Rules, and all objections have been overcome, the design is accepted for
registration (1).
○ The design is then registered, and its particulars (including the
representation, registration number, class, proprietor's name, etc.) are
published in the Official Gazette, which is typically the Patent Office Journal
(3). This publication usually occurs within one month of registration (9).
○ A certificate of registration is issued to the proprietor of the design (5). This
certificate serves as prima facie evidence of the registration and the validity
of the copyright in the design.
○ The date of registration is deemed to be the date of filing of the application in
India. In the case of a convention application, the date of registration is the
date of filing of the first application in the convention country (priority date)
(1).
● Register of Designs
The Patent Office in Kolkata maintains a Register of Designs as a statutory
requirement (5). This register contains:
○ The design number.
○ The class number in which the design is registered.
○ The date of filing and the date of registration (and reciprocity date, if any).
○ The name, address, and nationality of the proprietor.
○ Notifications of assignments, transmissions, licenses, and any other matters
affecting the validity or proprietorship of the design. The Register of Designs
is open to public inspection upon payment of the prescribed fee (5). Extracts
from the register can also be obtained on request (8). The register is also
available for online search through the IP India portal.

The following table summarizes key forms used in the design registration and post-
registration processes in India, providing a quick reference for applicants and
practitioners.

Table 1: Key Forms for Design Registration and Post-Registration Procedures in

India
Form No. Purpose of Relevant Fee (Natural Snippet
Form Section/Rule Person - INR) Source(s) for
(Illustrative) Form/Fee

Form-1 Application for Sec 5, Rule 11 1000 7

registration of
design

Form-2 Claim to Rule 16 500 22

proceed as an
applicant or
joint applicant

Form-3 Application for Sec 11(2), Rule 2000 8

extension of 23
copyright
(renewal)

Form-4 Application for Sec 12, Rule 24 1000 8

restoration of
lapsed design

Form-5 Inspection of Sec 17, Rule 27 500 8

registered
design

Form-6 Request for Sec 18, Rule 28 500 8

information
(registration
number known)

Form-7 Request for Sec 18, Rule 28 1000 8

information
(registration
number
unknown)
 Form-8 Petition for Sec 19, Rule 29 1500 3

cancellation of
registration of
design

Form-10 Application for Sec 30, Rule 500 (for one 22

registration of a 32/33/34/35 design)

document in
Register (e.g.
assignment)

Form-18 Request for Rule 18(2) / Rule 200 (per month) 9

extension of 21
time

Form-20 Notice of Rule 29(5) 500 9

intention to
attend hearing

Form-21 Power of Rule 9 Stamped as per 9

Attorney Indian Stamp

Act

Form-22 Request to alter Rule 37 200 8

name or
address in
Register

This table consolidates crucial procedural information, linking actions to official form
numbers, relevant legal provisions, and associated fees, which is highly beneficial for
navigating the design system in India.

4. Rights, Duration, and Post-Registration Procedures

● Scope of Rights Conferred by Registration (Copyright in Design - Section 11
of the Act)
Upon registration, Section 11 of the Designs Act, 2000, confers "copyright" in the
design upon the registered proprietor for the duration of the registration (2). In
the context of design law, "copyright" means the exclusive right to apply the
 design to any article in the class or classes in which the design is registered (1).
This is a distinct concept from copyright under the Copyright Act, 1957, although
the term is the same.
This exclusive right empowers the registered proprietor to:
○ Apply or cause the design to be applied to articles of the relevant class for
commercial purposes.
○ Import such articles for the purposes of sale.
○ Publish or expose or cause to be published or exposed for sale articles to
which such design has been applied. Essentially, the registration grants the
owner a monopoly over the visual appearance of the article embodying the
design, allowing them to prevent others from making, importing, selling, or
using articles that are identical to or substantially similar to the registered
design for commercial purposes without authorization (10). This right is crucial
for protecting the market exclusivity and commercial value derived from the
unique aesthetic features of a product.
● Duration of Protection and Renewal
The protection conferred by design registration in India is for a limited period.
○ The initial term of copyright in a registered design is ten years from the date
of registration (1). As noted earlier, the date of registration is the actual date
of filing the application in India, or in the case of a convention application, the
date of filing the application in the convention country (priority date) (1).
○ This initial ten-year period can be extended for one further period of five
years (1). To obtain this extension, the proprietor must make an application in
Form-3, accompanied by the prescribed renewal fee, to the Controller before
the expiry of the original ten-year term (8).
○ Therefore, the maximum duration of protection for a registered design in
India is fifteen years from the date of registration. After this period, the
design enters the public domain and can be freely used by anyone.
● Restoration of Lapsed Designs (Section 12 of the Act)
If the proprietor fails to pay the fee for the extension of copyright before the
expiry of the initial ten-year period, the copyright in the design will cease, and the
design is considered to have lapsed (8). However, Section 12 of the Designs Act,
2000, provides a mechanism for the restoration of such lapsed designs (20).
○ An application for restoration must be made in Form-4 within one year from
the date on which the design ceased to have effect (i.e., from the date of
lapse) (8).
○ The application must include a statement fully setting out the circumstances
 which led to the failure to pay the extension fee. The applicant must satisfy
the Controller that the failure was unintentional and that there has been no
undue delay in making the application for restoration (9).
○ If the Controller is satisfied with the reasons provided, an order for
restoration may be issued, subject to the payment of the unpaid extension
fee and any prescribed additional fee for restoration (8).
○ Once restored, the rights of the registered proprietor are subject to such
conditions as the Controller may think fit to impose, and provisions are
usually made to protect persons who may have begun to use the design after
it lapsed but before the restoration was advertised.
● Cancellation of Registered Designs: Grounds and Procedure (Section 19 of
the Act)
Even after a design is registered, its validity can be challenged through a
cancellation proceeding under Section 19 of the Designs Act, 2000 (20). This
provision acts as a crucial post-grant mechanism for rectifying the register by
removing designs that were wrongly registered. Since India does not have a
formal pre-grant opposition system for designs akin to that for patents,
cancellation serves as the primary route for third parties to contest the validity of
a registered design. The grounds for cancellation largely mirror the criteria for
non-registrability, reinforcing the standards that a design must meet to qualify
for and maintain protection.
○ Grounds for Cancellation: A petition for cancellation can be filed on any of
the following grounds (3):
1. That the design has been previously registered in India.
2. That it has been published in India or in any other country prior to the
date of registration.
3. That the design is not new or original.
4. That the design is not registrable under the Designs Act (e.g., it is
primarily functional, contrary to public order or morality).
5. That it is not a "design" as defined under clause (d) of Section 2 of the
Act.
○ Who Can Apply: Any "person interested" can file a petition for cancellation
of a registered design (6). A "person interested" is generally interpreted as
someone whose legal or commercial interests are affected by the existence
of the registration, such as a competitor in the same field.
○ Procedure for Cancellation: (3)
1. A petition for cancellation must be filed in Form-8 with the Controller of
 Designs, accompanied by the prescribed fee (22). The petition must
include a statement of facts outlining the grounds for cancellation and
evidence supporting these claims, along with details of the petitioner's
interest.
2. The petition can be filed at any of the Patent Offices but will be
processed at the Kolkata office.
3. The Controller will send a copy of the petition and the accompanying
statement and evidence to the registered proprietor.
4. The registered proprietor has one month (extendable by a maximum of
three months) from the receipt of the petition to file a counter-statement
and evidence in support of the validity of the design. A copy must also be
served on the petitioner.
5. The petitioner may then file a reply statement and evidence (strictly
confined to matters in the proprietor's evidence) within one month
(extendable by a maximum of three months) of receiving the counter-
statement, serving a copy on the proprietor.
6. No further evidence is generally allowed from either party without the
Controller's special leave.
7. After the completion of evidence, the Controller will fix a date for hearing,
giving at least ten days' notice to both parties. Parties wishing to be heard
must notify the Controller by filing Form-20.
8. After hearing the parties (or without a hearing if neither party wishes to
be heard), the Controller will decide the petition and issue a reasoned
order.
9. The Controller's decision is appealable to the High Court (3).
10. The decision is notified to the parties and published in the Official
Journal, and necessary entries are made in the Register of Designs.
The availability of cancellation proceedings underscores the importance for
applicants to conduct thorough novelty searches before filing and for the Patent
Office to perform rigorous examinations. It ensures that the design register
maintains a high standard of validity and that erroneously granted monopolies
can be rectified.
● Assignment, Transmission, and Licensing of Design Rights
A registered design, being a form of intellectual property, is an asset that can be
commercially exploited and transferred. The Designs Act, 2000, and the Design
Rules, 2001, provide for the recording of such transactions.
○ Assignment: The proprietor of a registered design can assign their rights in
the design to another person, either wholly or partially. An assignment should
 be in writing and signed by the assignor.
○ Transmission: Rights in a registered design can be transmitted by operation
of law, for example, upon the death of the proprietor (to their legal
representatives) or in cases of bankruptcy or company amalgamation.
○ Licensing: The proprietor can grant licenses to others to apply the design to
articles. This allows the proprietor to earn royalties while permitting others to
use the design under specific terms and conditions. The Designs Act, 2000,
also contains provisions regarding the regulation of anti-competitive
practices within contractual licenses (3).
○ Registration of Documents: To be effective against third parties and for the
new owner or licensee to assert their rights, any document creating an
interest in a registered design (such as an assignment deed or license
agreement) should be registered with the Controller. Applications for
recording such documents are made using prescribed forms (e.g., Form-10
for registering an assignment, Form-11 for change of name of proprietor,
Form-12 for entry of mortgage or license) along with the requisite fees (8).
This registration must typically be applied for within six months of the
execution of the document, extendable by a further six months (8).

Part III: Enforcement and Interplay of Design Rights

5. Enforcement of Design Rights and Piracy

● Piracy (Infringement) of Registered Designs: What Constitutes
Infringement? (Section 22 of the Act)
Section 22 of the Designs Act, 2000, deals with the "piracy" of a registered
design, which is synonymous with infringement (20). Piracy occurs when any
person, during the existence of copyright in any design and without the license or
written consent of the registered proprietor, commits any of the following acts
for the purpose of sale (not for private or personal use):
1. Applies the registered design or any fraudulent or obvious imitation of it, to
any article in any class of articles in which the design is registered (6).
2. Imports for the purpose of sale, any article belonging to the class of articles
in which the design is registered and to which the design or a fraudulent or
obvious imitation thereof has been applied (6). Furthermore, it is also an act
of piracy for any person to publish or expose or cause to be published or
exposed for sale, any article of the class of articles in which the design is
registered, to which the design or any fraudulent or obvious imitation thereof
has been applied, knowing that the design or imitation was so applied without
 the consent of the registered proprietor (8).
The determination of whether an article infringes a registered design involves a
visual comparison. The allegedly infringing article is compared with the registered
design as depicted in the certificate of registration. The test is whether the
allegedly infringing article is an exact reproduction or a "fraudulent or obvious
imitation" of the registered design, judged solely by the eye from the perspective
of an average customer or an instructed person who is aware of common trade
variants (10). The focus is on the overall visual similarity that might lead to market
confusion.
● Legal Remedies for Infringement: Civil (Injunctions, Damages, Account of
Profits)
The Designs Act, 2000, provides civil remedies to the registered proprietor
against piracy of their design. The proprietor can institute a suit in any court not
below that of a District Judge (8). The available remedies include:
1. Injunctions: The court can grant both interim (temporary) and permanent
injunctions to restrain the defendant from committing further acts of piracy
(10). An interim injunction is crucial to prevent ongoing damage to the
proprietor's market and goodwill while the suit is pending.
2. Monetary Relief: Section 22(2) provides the proprietor with an option to
choose one of two types of monetary relief against the infringer:
■ Option (a) - Liquidated Damages: To recover from the infringer a sum
not exceeding twenty-five thousand rupees for every contravention, as a
contract debt. However, the total sum recoverable in respect of any one
design under this clause shall not exceed fifty thousand rupees (8).
■ Option (b) - Damages or Account of Profits: To bring a suit for the
recovery of damages for any such contravention, and for an injunction
against the repetition thereof (8). If this option is chosen, the proprietor
can claim actual damages suffered due to the infringement or,
alternatively, an account of profits made by the infringer from the
unauthorized use of the design. The proprietor cannot claim remedies
under both option (a) and option (b) simultaneously; a choice must be
made.
3. Delivery-up or Destruction of Infringing Articles: The court may also order
the seizure, forfeiture, or destruction of the infringing articles and any
materials or implements used in their creation (10).
While some sources mention criminal penalties like imprisonment (12), the Designs
Act, 2000, itself primarily focuses on civil remedies. Criminal liability for design
infringement is not explicitly provided for under this Act in the same way it is
 under the Copyright Act or the Trademarks Act for counterfeiting. References to
Section 63 of the Copyright Act (18) would only be relevant if the design also
qualifies for and retains copyright protection as an artistic work and that
copyright is infringed, which is a separate consideration from design piracy under
the Designs Act.
● Defences in Infringement Suits
A defendant in a design infringement suit has several potential defences. The
most significant defence is provided by Section 22(3) of the Designs Act, which
allows the defendant to plead in their defence any ground upon which the
registration of the design might be cancelled under Section 19 of the Act (20). This
effectively allows the defendant to challenge the validity of the plaintiff's
registered design as part of the infringement proceedings.
Common grounds raised as defences (which are also grounds for cancellation)
include:
○ Lack of novelty or originality of the plaintiff's design (24).
○ Prior publication or prior use of the design before its registration date (24).
○ The design is not significantly distinguishable from known designs.
○ The subject matter is not a "design" as defined by the Act (e.g., it is primarily
functional).
○ The design registration was obtained by fraud or misrepresentation.

If the defendant successfully proves that the plaintiff's design registration is

invalid and liable for cancellation, the infringement suit will typically fail (24). This
underscores the critical importance of a design's validity. An infringement action
hinges not just on proving that the defendant copied the design, but also on the
plaintiff's ability to uphold the legitimacy of their registered right. Defendants will
almost invariably scrutinize the validity of the asserted design, making thorough
pre-registration searches by applicants and robust examination by the Patent
Office essential for obtaining a strong and enforceable design right. The
outcomes in cases like Crocs Inc. USA v. Aqualite India Limited (24) illustrate how
prior publication can lead to the dismissal of infringement claims due to the
vulnerability of the design registration itself.Another defence, though more
complex and subject to judicial interpretation, might arise if the defendant is also
a registered proprietor of a similar design (26).
● Role of Courts and Enforcement Agencies
○ Courts: Suits for design infringement are typically filed in District Courts, with
appeals lying to the High Courts. High Courts also have original jurisdiction in
certain matters, such as when the validity of a design is challenged and the
case is transferred from a District Court (3). Courts play a pivotal role in
interpreting the provisions of the Designs Act, determining infringement,
 assessing validity, and granting appropriate relief.
○ Customs Authorities: Under the Intellectual Property Rights (Imported
Goods) Enforcement Rules, 2007, framed under the Customs Act, 1962, rights
holders (including proprietors of registered designs) can record their rights
with Customs authorities. This enables Customs to intercept and seize goods
suspected of infringing registered designs at the border, preventing their
entry into the Indian market (12).
○ Police: While the Designs Act itself does not provide for direct police action
for design piracy (as it's primarily a civil wrong), police can become involved if
the infringement also involves criminal offences under other laws, such as
counterfeiting under the Trademarks Act or criminal infringement under the
Copyright Act (if applicable). Coordinated efforts between IPR holders, police,
and customs are essential for effective enforcement against widespread
piracy (18).

The following table provides a comparative overview of key intellectual property

rights in India, which is essential for understanding the context in which design law
operates and for choosing the most appropriate form(s) of protection for a given
creation.

Table 2: Comparison of Key IP Rights in India (Design, Copyright, Trademark,

Patent)

Feature Design Copyright Trademark Patent

Governing Law Designs Act, Copyright Act, Trademarks Act, Patents Act,
2000 1957 1999 1970

Subject Matter Features of Original literary, Marks (logo, New, inventive,

shape, dramatic, word, shape, industrially
configuration, musical, artistic sound, etc.) applicable
pattern, works, capable of inventions
ornament, lines, cinematograph distinguishing (product or
colors applied films, sound goods/services process) (6)
to an article recordings (4) of one from
(visual appeal) another (29)
1
()
Protection New or original, Originality, Distinctiveness Novelty,
Criterion industrially expression of (inherent or inventive step
applicable, idea (not idea acquired), (non-
appeals to and itself) (4) graphical obviousness),
judged solely by representation industrial
the eye (3) (29) applicability (30)

Registration Mandatory for Automatic upon Optional but Mandatory for

protection creation; highly protection (31)
under the registration recommended
Designs Act (3) optional but for statutory
provides prima rights and
facie evidence easier
and enhanced enforcement
enforcement (29)
28
options ( )

Term of Initially 10 years, Generally, Initially 10 years, 20 years from

Protection extendable by 5 lifetime of renewable date of filing (19)
years (Total 15 author + 60 indefinitely for
years) (1) years (21) periods of 10
years (21)

Rights Exclusive right Exclusive rights Exclusive right Exclusive right

Conferred to apply the to reproduce, to use the mark to make, use,
design to an adapt, for specified sell, offer for
article in the distribute, goods/services, sale, and import
registered class perform, display prevent the patented
(2) the work, make unauthorized invention (33)
derivative works use likely to
(4) cause confusion
(29)

Key Exclusion Functional Ideas, facts, Non-distinctive Discoveries,

Example features, procedures, marks, scientific
trademarks, methods of descriptive theories,
artistic works operation; marks (unless mathematical
covered by designs capable secondary methods,
Copyright Act (1) of design meaning literary/dramatic
registration acquired), /musical/artistic
 reproduced >50 marks likely to works, methods
times deceive or of
industrially (Sec cause agriculture/horti
15) (4) confusion, culture (30)
generic terms

This comparative table is invaluable for clarifying the often-confused boundaries

between different IP rights. It helps creators and businesses make informed decisions
about which IP protection(s) to seek by highlighting differences in subject matter,
protection criteria, duration, and rights conferred. Understanding, for example, that
design protects appearance while patent protects functionality is fundamental.

6. Interplay with Other Intellectual Property Rights

The realm of intellectual property is not composed of watertight compartments;

rather, different rights often interact and sometimes overlap, creating complex legal
scenarios. Understanding the interplay between design law and other IP rights like
copyright, trademark, and patent law is crucial for comprehensive IP protection
strategy.
● Design Law and Copyright Law:
The interface between design protection and copyright protection is one of the
most intricate areas in Indian IP law, primarily governed by Section 15 of the
Copyright Act, 1957, and the definitions within both the Copyright Act and the
Designs Act, 2000.
○ The Overlap: Section 15 of the Copyright Act, 1957
An "artistic work" as defined under Section 2(c) of the Copyright Act (which
includes paintings, sculptures, drawings, engravings, etc.) initially enjoys
copyright protection automatically upon its creation, without any formality of
registration (4). However, a conflict or choice arises when such an artistic
work is also capable of being registered as a "design" under the Designs Act,
2000, because it is intended to be applied to an article for its visual appeal
through an industrial process.
Section 15 of the Copyright Act, 1957, directly addresses this overlap:
1. Section 15(1): States that copyright shall not subsist in any design which
is registered under the Designs Act, 2000 (32). This means if an artistic
work is registered as a design, it loses its protection under the Copyright
Act and is solely governed by the Designs Act.
2. Section 15(2): Stipulates that copyright in any design which is capable of
 being registered under the Designs Act, 2000, but which has not been so
registered, shall cease as soon as any article to which the design has
been applied has been reproduced more than fifty times by an industrial
process by the owner of the copyright, or with their license, by any other
person (4).
○ Impact on Artistic Works Applied Industrially:
The consequence of these provisions is that the creator of an artistic work
that also qualifies as a registrable design faces a critical decision. If they
intend to apply the artistic work to articles through an industrial process for
commercial exploitation:
■ If they register it as a design, they secure protection under the Designs
Act for a maximum of 15 years but forfeit copyright protection for that
design under the Copyright Act (32).
■ If they do not register it as a design, they retain copyright in the original
artistic work. However, once that design (as applied to an article) is
reproduced more than 50 times by an industrial process, the copyright in
that specific design (as applicable to the article) ceases (4). The original
artistic work itself (e.g., the initial drawing on paper) might still retain
copyright for other purposes not involving industrial application as a
design.
This legislative scheme aims to prevent dual protection for the same subject
matter under both Acts and to channel industrially applied designs towards
the design registration system, which offers a shorter but specific monopoly
for such commercial applications. The definition of "design" under the
Designs Act itself excludes an "artistic work" as defined in the Copyright Act
(1), further reinforcing this intended mutual exclusivity.The "50 reproductions"
rule in Section 15(2) of the Copyright Act acts as a critical threshold and a
potential trap for unwary creators. This specific numerical limit signifies a
clear legislative intent to push industrially applied artistic works towards the
design registration system. Creators of artistic works who plan to
commercialize them through industrial application to articles must be acutely
aware of this threshold. If they allow the reproduction of articles bearing the
design to exceed fifty units without having secured a design registration, they
risk losing both copyright protection for the design aspect as applied to the
article and, obviously, any protection under the Designs Act (as it was never
registered). This can leave their industrially applied design vulnerable to
copying by competitors. This situation effectively creates a "use it (by
registering as a design) or lose it (copyright protection for the industrially
applied design)" scenario, necessitating careful IP strategy and timely filing
 for design registration if significant industrial application is envisaged.
○ Judicial Interpretation: The Cryogas Equipment Pvt. Ltd. v. Inox India Ltd.
Case and the Two-Pronged Test
The Supreme Court of India, in the landmark case of Cryogas Equipment Pvt.
Ltd. & LNG Express India Pvt. Ltd. v. Inox India Ltd. (2023), provided
significant clarification on this complex interplay, particularly concerning
subject matter like engineering drawings which could potentially qualify as
both "artistic works" under the Copyright Act and "designs" under the
Designs Act (1). The Court formulated a two-pronged test to determine the
appropriate form of protection:
1. First Prong (Nature of Work and Industrial Application): Is the work in
question purely an 'artistic work' entitled to protection under the
Copyright Act, or is it a 'design' derived from such an original artistic work
and subsequently subjected to an industrial process, thereby triggering
the provisions of Section 15(2) of the Copyright Act?
2. Second Prong (Functional Utility Test - if copyright is lost under Sec
15(2)): If the work, due to industrial application exceeding 50
reproductions without design registration, does not qualify for copyright
protection for its design aspect, then the test of 'functional utility' must
be applied. This test seeks to determine the dominant purpose of the
features: Do they primarily serve a visual appeal function (making it
eligible for design protection under the Designs Act), or is their dominant
purpose functional utility (which would place it outside the scope of
design protection)? (34).
This structured approach aims to prevent impermissible dual protection and
ensure that works whose primary utility in an industrial context lies in their
aesthetic features seek protection under the Designs Act, while purely artistic
works retain their copyright, and purely functional features are assessed for
patentability. The Cryogas judgment emphasized that such determinations often
require a full trial to examine the evidence regarding the nature of the work and
its application (34).
● Design Law and Trademark Law:
The relationship between design law and trademark law is characterized by
distinct purposes and protection criteria, though overlaps can occur, particularly
with regard to the shape of goods.
○ Distinctions:
■ Purpose: Design law protects the novel aesthetic appearance or
ornamentation of an article (29). Trademark law, governed by the
 Trademarks Act, 1999, protects marks (such as words, logos, devices, or
shapes) that serve to identify the source of goods or services and
distinguish them from those of others (29).
■ Criteria for Protection: A design must be new or original and appeal to
the eye (29). A trademark must be distinctive (either inherently or through
acquired distinctiveness from use) and capable of being represented
graphically (29).
■ Duration of Protection: Design protection is limited to a maximum of 15
years in India (21). Trademark protection can be perpetual, provided the
registration is renewed every ten years (21).
■ Statutory Exclusion: The definition of "design" in Section 2(d) of the
Designs Act, 2000, explicitly excludes any trademark (1).
○ Potential Overlaps (Shape Marks):
A primary area of potential overlap arises with three-dimensional shapes of
products or their packaging. A unique and novel shape of an article can be
registered as a design if it meets the criteria of visual appeal and industrial
applicability (6). Concurrently, the shape of goods can also be registered as a
trademark under the Trademarks Act, 1999, if it has acquired distinctiveness
through use in the market such that consumers associate that shape with a
particular trade source (26).
This potential for a shape to qualify for both types of protection creates a
strategic dilemma for creators. The Designs Act's exclusion of trademarks
from its definition, and the differing objectives and durations of the two
rights, lead to complexities. If a shape is registered as a design, it enjoys
protection for its aesthetic features for up to 15 years. If the same shape,
through extensive use, also becomes a source identifier (i.e., a de facto
trademark), the question arises whether it can also be protected under
trademark law, especially after the design registration expires. Courts have
grappled with this issue. The legislative intent appears to be to keep the
regimes distinct to prevent the "evergreening" of design rights through
trademark law. However, if a shape genuinely functions as a trademark by
indicating origin, denying trademark protection could harm both the
proprietor's goodwill and consumer interests by allowing competitors to use a
confusingly similar shape.
○ Passing Off Actions:
The common law remedy of passing off protects the goodwill and reputation
associated with a trader's goods or services, preventing others from
 misrepresenting their goods or services as those of the plaintiff. A passing off
action can be based on various indicia, including the get-up or trade dress of
a product, which can include its shape.
There has been considerable judicial debate in India regarding the
maintainability of a passing off action for a shape that is also the subject of a
design registration.
■ The Full Bench of the Delhi High Court in Mohan Lal, proprietor of Mourya
Industries v. Sona Paint & Hardwares (2013) held that a passing off action
could be maintained in respect of a registered design used as a
trademark, provided the necessary elements of passing off (goodwill,
misrepresentation, damage) were established. It was reasoned that using
a registered design as a trademark is not a ground for cancellation of the
design registration under Section 19 of the Designs Act (25).
■ However, the subsequent Five Judge Bench in Carlsberg Breweries A/S v.
Som Distilleries and Breweries Ltd. (2018), while primarily dealing with the
joinder of causes of action for design infringement and passing off,
discussed Mohan Lal. It affirmed that the two causes of action are distinct
but held that a composite suit joining both could be maintainable to avoid
multiplicity of proceedings, though practical difficulties in trial were
acknowledged (37).
■ In Crocs Inc. USA v. Aqualite India Limited (2019), a single judge of the
Delhi High Court, interpreting Mohan Lal and Carlsberg, held that a
passing off suit for a registered design (the shape itself) was not
maintainable. The court reasoned that if a shape is registered as a design,
it cannot simultaneously be a trademark for the purpose of a passing off
action based on the shape alone, unless "something extra" beyond the
registered design features functions as a mark (25). 26 notes this ambiguity,
stating that a suit for infringement of the shape of goods under the
Design Act cannot be joined with a suit for passing off the same shape of
goods under the Trademarks Act, requiring the innovator to elect
between remedies for the shape itself. However, a design infringement
suit can be combined with a passing off suit for other features of the
trademark, like trade dress, word mark, or get-up, excluding the
registered shape.
● Design Law and Patent Law:
The distinction between design law and patent law is generally clearer, based on
the fundamental difference between protecting aesthetics and protecting
 functionality.
○ Focus on Aesthetics vs. Functionality: As established, design law protects
the ornamental or aesthetic aspects of an article, which are judged solely by
the eye (1). Patent law, governed by the Patents Act, 1970, protects
inventions, which are new, non-obvious (involving an inventive step), and
industrially applicable solutions to technical problems. Patents typically cover
functional features, processes, or compositions of matter (6).
○ Exclusion of Functional Features from Design: The Designs Act, 2000,
explicitly exc device (1). Furthermore, international norms, such as those
reflected in the TRIPS Agreement (Article 25), allow member states to provide
that design protection shall not extend to designs dictated essentially by
technical or functional considerations (39). This principle is a key demarcation
line preventing an overlap with patent law. If the appearance of an article is
solely or essentially driven by its function, it should seek protection under
patent law if it meets the criteria of patentability (novelty, inventive step,
industrial applicability).
○ Architectural Works: An interesting area of interaction is architectural
works. These can have aesthetic features (like the façade or decorative
elements) that are protectable under design law. Simultaneously, they might
incorporate novel technical or functional innovations (like unique structural
systems or energy-efficient building methods) that could be eligible for
patent protection (36). Additionally, architectural plans and drawings, as
artistic works, can be protected by copyright (36).
The exclusion of designs "dictated essentially by technical or functional
considerations" is the primary mechanism to maintain the boundary between design
and patent protection. This requires a careful assessment of why a particular shape,
configuration, or feature exists. Is its primary purpose to enhance visual appeal, or is
it necessitated by the way the article functions or is constructed? This distinction is
crucial for selecting the appropriate form of IP protection and can be a significant
point of contention in infringement or validity disputes. For example, a uniquely
shaped handle on a tool might be a registrable design if its specific shape is primarily
for aesthetic differentiation. However, if its contours are specifically engineered to
provide a demonstrably better grip for performing a technical function, it might be
considered primarily functional and thus more appropriate for patent protection (if
inventive) rather than design registration.

Part IV: International Framework and Indian Perspective

7. International Agreements and India's Position

India's design law framework is not only shaped by domestic legislative intent but is
also significantly influenced by its commitments under international intellectual
property agreements. These treaties establish global norms and facilitate cross-
border protection of industrial designs.
● Paris Convention for the Protection of Industrial Property:
India is a signatory to the Paris Convention for the Protection of Industrial
Property (16), one of the oldest and most fundamental international IP treaties,
administered by the World Intellectual Property Organization (WIPO). The
Convention lays down several key principles applicable to industrial designs:
○ National Treatment (Article 2): This cornerstone principle mandates that
each member state must grant the same protection to the industrial designs
of nationals of other member states as it grants to its own nationals (40). This
ensures non-discrimination against foreign applicants.
○ Right of Priority (Article 4): An applicant who has duly filed an application
for the registration of an industrial design in one member state (the "first
filing") enjoys a "right of priority" for a period of six months to file
applications for the same design in other member states. If filed within this
six-month window, these subsequent applications are treated as if they were
filed on the same date as the first filing (40). This allows applicants time to
decide in which countries they wish to seek protection without losing their
novelty claim due to intervening disclosures or filings by others.
○ Protection of Industrial Designs: Article 5 quinquies of the Paris Convention
states that industrial designs shall be protected in all countries of the Union
(40).
○ Independence of Protection: The grant of protection for an industrial
design in one member state is independent of its grant or refusal in other
member states.
○ No Forfeiture for Non-Manufacture: Protection for an industrial design in a
member state cannot be forfeited on the ground that articles incorporating
the design are not manufactured in that state (40).
As a signatory, India is obligated to adhere to these principles. The Indian
Designs Act, 2000, incorporates provisions consistent with the Paris Convention,
notably by allowing applicants to claim priority based on applications first filed in
other convention countries (Section 5(2) read with Section 44 of the Act).
● TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual
Property Rights):
The TRIPS Agreement, administered by the World Trade Organization (WTO), sets
down minimum standards for the protection and enforcement of various forms of
intellectual property, including industrial designs, that all WTO members must
adhere to.
○ Minimum Standards for Industrial Design Protection (Articles 25 & 26):
■ Article 25 (Requirements for Protection):
1. Members are required to provide for the protection of independently
created industrial designs that are new or original (11). Msign features
(39).
2. Members may provide that such protection shall not extend to
designs dictated essentially by technical or functional considerations
(39).
3. Each Member must ensure that requirements for securing protection
for textile designs, particularly concation through industrial design law
or through copyright law (39).
■ Article 26 (Protection - Rights Conferred and Duration):
1. The owner of a protected industrial design shall have the right to
prevent third parties not having the owner’s consent from making,
selling, or importing articles bearing or embodying a design which is a
copy, or substantially a copy, of the protected design, when such acts
are undertaken for commercial purposes. (This is the general right
conferred by TRIPS for industrial designs).
2. The duration of protection available shall amount to at least 10 years
(11). Members may provide for limited exceptions to the exclusive
rights, provided such exceptions do not unreasonably conflict with
the normal exploitation of protected industrial designs and do not
unreasonably prejudice the legitimate interests of the owner, taking
account of the legitimate interests of third parties.
○ Impact on Indian Design Law: The Designs Act, 2000, was specifically
enacted to bring India's design legislation into compliance with its obligations
under the TRIPS Agreement (3). This involved adopting standards for novelty
and originality, ensuring a minimum duration of protection (India provides up
to 15 years, exceeding the TRIPS minimum), and establishing effective
enforcement mechanisms. India must continue to align its domestic laws and
practices with TRIPS standards (33).
The TRIPS Agreement establishes a "floor" rather than a "ceiling" for intellectual
property protection (11). This means that while member countries must meet
these minimum standards, they are free to provide higher levels of protection in
 their national laws if they choose to do so. India's provision of a 15-year maximum
term for design protection, compared to the TRIPS minimum of 10 years, is an
example of this. This flexibility allows countries to tailor their IP regimes to their
specific economic conditions and innovation goals, while TRIPS ensures a
baseline level of protection across all WTO member nations, facilitating
international trade and investment.
● Hague Agreement Concerning the International Registration of Industrial
Designs:
The Hague Agreement, administered by WIPO, establishes an international
system (the Hague System) for the registration of industrial designs. It allows
applicants to obtain protection for their designs in multiple member countries
and intergovernmental organizations through a single international application
filed with WIPO, in one language, and with payment of one set of fees in one
currency (42). The system simplifies the process of seeking and managing design
rights across borders. As of recent data, the Hague System covers 99 countries
through its 82 contracting parties (43).
○ India's Current Status:
India is not currently a member of the Hague Agreement Concerning the
International Registration of Industrial Designs (44). The official lists of
contracting parties to the various Acts of the Hague Agreement, including the
most recent Geneva Act (1999), maintained by WIPO, do not include India
(45).
It is important to distinguish this from India's membership in the Hague
Convention Abolishing the Requirement of Legalisation for Foreign Public
Documents (Apostille Convention), which deals with the authentication of
documents for international use and is unrelated to design registration (48).
Although not a member of the Hague System, India's membership in the Paris
Convention has implications. An applicant who files an international
application under the Hague System designating a Paris Convention member
country can claim priority for a subsequent national filing in India within the
six-month priority period. Conversely, an applicant who first files a design
application in India can claim priority for a subsequent Hague international
application (if they are eligible to use the Hague system through another
connection, like nationality or domicile in a Hague member state) (44).
India's non-membership in the Hague System presents certain considerations. The
Hague System is designed to offer significant simplification and cost-effectiveness
for designers seeking protection in multiple jurisdictions (42). By not being a member,
Indian designers cannot directly utilize this streamlined system to obtain design
protection abroad, nor can foreign designers easily designate India through a single
Hague application. They must instead rely on individual national filings in each
country of interest or use the Paris Convention route for claiming priority. This could
potentially place Indian designers at a comparative disadvantage in terms of the ease
and expense of securing international design protection. While there may be various
strategic reasons for India's current position—such as concerns about the
administrative burden, the potential impact on domestic industries, or the need for
further alignment of domestic laws and procedures—its absence from this key
international design registration treaty is a significant factor in its international IP
engagement strategy. It means that businesses seeking design protection specifically
in India must file directly with the Indian Patent Office.

The following table provides a concise overview of these key international

agreements and India's status concerning them in the context of industrial designs.

Table 3: Overview of International Agreements and India's Status (Designs)

Agreement Administeri Key India's Key Snippet

ng Body Provisions Membershi Implications Source(s)
for p Status for India
Industrial
Designs

Paris WIPO National Signatory Must provide 16

Convention Treatment, national

for the Right of treatment
Protection of Priority (6 and
Industrial months for recognize
Property designs), priority
Protection rights for
independent applicants
of home from
registration, member
Protection states.
irrespective Indian
of local applicants
manufacture can claim
. priority
abroad.
Designs Act,
2000 is
 compliant.

TRIPS WTO Minimum Member Designs Act, 3

Agreement standards: 2000

(Trade- Protection enacted to
Related for be TRIPS-
Aspects of IP new/original compliant.
Rights) designs, India must
exclusion for maintain
functional these
designs, minimum
rights of standards in
owner to its domestic
prevent law and
unauthorized provide
commercial effective
use, enforcement
minimum 10- . Influences
year domestic IP
protection policy and
term. dispute
Effective settlement.
enforcement
measures.

Hague WIPO Centralized Not a Indian 42

Agreement international Member designers

Concerning filing system cannot use
the for designs the Hague
International (single system to
Registration application file
of Industrial for multiple internationall
Designs countries), y directly;
simplified foreign
management designers
and renewal. cannot
designate
India via
Hague.
Protection
in/from India
requires
 national
filings or
Paris
Convention
route.

This table summarizes India's engagement with key international IP instruments

relevant to designs, highlighting the core design-related obligations or features of
these treaties and their direct implications.

Part V: Judicial Precedents and Future Outlook

8. Landmark Case Law in Indian Design Law

Judicial pronouncements play a vital role in shaping the interpretation and application
of design law in India. They provide clarity on ambiguous statutory provisions,
establish guiding principles, and address new challenges arising from evolving
commercial practices and technologies. Several landmark cases have significantly
influenced the landscape of Indian design law. These precedents serve as crucial
navigational aids for legal practitioners, businesses, and designers in understanding
the nuances of design protection and enforcement, often addressing the complex
"gaps" or "overlaps" between different intellectual property rights.
● Crocs Inc. USA v. Aqualite India Limited & Ors. (24)
This series of cases involving Crocs Inc. and various Indian footwear
manufacturers brought several critical issues in design law to the forefront,
particularly concerning the validity of design registrations, the impact of prior
publication, and the relationship between design rights and the common law
remedy of passing off.
○ Key Issues: The primary issues revolved around the validity of Crocs'
registered designs (Nos. 197685 and 197686) for its perforated and non-
perforated clog-style footwear. The defendants challenged these
registrations on grounds of lack of novelty and originality due to prior
publication. Another significant issue was whether a suit for passing off could
be maintained for a shape that was already registered as a design.
○ Outcome and Significance: In the design infringement suits, the defendants
presented evidence suggesting that designs similar to Crocs' registered
designs had been disclosed to the public prior to Crocs' registration date.
This included alleged disclosures by Holey Shoes around 2003 and by Crocs
 itself on its website in 2002 (24). The Delhi High Court found that a prima facie
case of prior publication existed, which made Crocs' design registrations
vulnerable to cancellation under Section 19(1)(b) (prior publication) read with
Section 4(b) (design not new or original if published before priority date) of
the Designs Act, 2000 (24). Consequently, the court held that Crocs could not
claim exclusivity for its registered designs as they lacked the necessary
novelty or originality for protection under the Act, and dismissed the
injunction applications filed by Crocs (24). In a related matter concerning
passing off, specifically Crocs Inc. USA v. Aqualite India Limited (2019), the
Delhi High Court rejected the maintainability of a suit of passing off based on
the registered design shape itself (25). The court reasoned that Section 2(d) of
the Designs Act, which excludes trademarks from the definition of "design,"
would be defeated if a feature registered as a design could subsequently be
protected as a trademark (through passing off for the shape) after its design
term expired. The court interpreted the Full Bench decision in Mohan Lal v.
Sona Paint and Hardwares to mean that only "something extra" beyond the
features of the registered design could function as a trademark and form the
basis of a passing off action (25). These Crocs cases underscore the stringent
requirement of absolute novelty in Indian design law and the critical
importance of avoiding any prior public disclosure before filing for design
registration. They also highlight the ongoing complexities and judicial efforts
to delineate the boundaries between design rights and trademark/passing off
protection, especially concerning product shapes.
● Carlsberg Breweries A/S v. Som Distilleries And Breweries Limited (27)
This case, decided by a Five Judge Bench of the Delhi High Court, addressed a
significant procedural question regarding the joinder of causes of action for
design infringement and passing off in a single suit.
○ Key Issues: The primary legal question referred to the larger bench was
whether a composite suit combining a claim for infringement of a registered
design and a claim for passing off (based on the same product
features/design) is maintainable. This involved a reconsideration of the earlier
Full Bench decision in Mohan Lal v. Sona Paint and Hardwares, which had
held that such causes of action were distinct and required separate suits.
○ Outcome and Significance: The Five Judge Bench in Carlsberg overruled
the proposition in Mohan Lal that two separate suits must be filed. It held that
a composite suit alleging both design infringement and passing off is
maintainable (37). The court emphasized the principle of avoiding needless
 multiplicity of suits and reasoned that when two causes of action arise from
the same subject matter (e.g., the defendant's use of a particular product
design) and involve the same parties, they can be clubbed together for
adjudication to ensure consistent decisions and judicial efficiency (38).
However, the Bench also acknowledged that while joinder is permissible,
there are inherent differences between the two causes of action. A design
infringement claim focuses on the novelty and registration of the design,
while a passing off claim relies on establishing goodwill, reputation, and
misrepresentation leading to damage. The defences available are also
different. A crucial practical consideration highlighted was that if the validity
of the registered design is challenged in a composite suit (as is common),
that part of the suit relating to design invalidity might need to be transferred
to the High Court (if the suit is in a District Court), potentially complicating the
unified trial of both causes of action (38). The Carlsberg decision provides
important procedural clarity, allowing plaintiffs to pursue both remedies more
efficiently in appropriate cases. Nevertheless, it also signals that the practical
management of such composite suits can still present challenges due to the
distinct legal tests and potential jurisdictional issues related to design validity
challenges.
● Whirlpool of India Ltd vs Videocon Industries Ltd (27)
This case touched upon the issue of an infringement action between two parties
who both hold registrations for similar designs.
○ Key Issues: The core question was whether a suit for infringement of a
registered design is maintainable by one registered proprietor against
another registered proprietor.
○ Outcome and Significance: The Bombay High Court, in its 2014 decision,
referred to a minority view of a Full Bench and suggested that such a suit is
maintainable (27). This implies that merely holding a design registration is not
an absolute defence against an infringement claim if the plaintiff can
establish that their design registration is earlier and valid, and that the
defendant's registered design infringes it. 26 also acknowledges the ambiguity
in this area, noting that courts have taken differing views on whether a suit for
infringement of a registered design is maintainable against another
registered proprietor. The significance of this line of reasoning is that it allows
courts to look beyond the mere fact of registration and delve into the merits
of priority, validity, and infringement even when both disputing parties have
obtained design registrations. It prevents a later, potentially infringing,
 registration from automatically shielding its owner from an infringement
action by the owner of an earlier, validly registered design.
● Pentel Kabushiki Kaisha & Anr v M/S Arora Stationers & Ors (Referred to in
Crocs judgment 24)
While specific details of the Pentel case are not extensively provided in the
available materials beyond its citation in the Crocs judgment, its reference is
indicative of its relevance to the principles of novelty and originality in design law.
○ Key Issues: (Inferred) Likely dealt with the assessment of novelty and
originality of industrial designs.
○ Outcome and Significance: The judgment in Crocs Inc USA v Liberty Shoes
Limited (24) referred to its earlier judgment in Pentel Kabushiki Kaisha & Anr v
M/S Arora Stationers & Ors while concluding that the registered design of
Crocs footwear did not possess the necessary novelty or originality to be
granted protection under the Designs Act. This suggests that the Pentel case
likely established or reiterated important benchmarks or criteria for
evaluating whether a design meets the statutory requirements of being new
or original, particularly in the context of infringement and validity disputes.
● Other relevant cases illustrating key principles:
○ Microfibres Inc. v. Girdhar & Co. (4): This case is pivotal for understanding
the copyright-design interface. The Delhi High Court clarified that once an
artistic work is applied to an article by an industrial process more than fifty
times, and if it was capable of design registration but was not registered,
copyright in that design ceases. This ruling harmonized the legislative intent
of reserving copyright under the Copyright Act for purely artistic works, while
channeling industrially applied designs (which appeal to the eye) towards the
protection mechanism of the Designs Act. It reinforced the "50
reproductions" threshold as a critical point where copyright protection for
such designs is extinguished if design registration is not sought.

9. Conclusion and Future Directions

● Recap of Key Aspects of Indian Design Law:
The Indian design law framework, primarily embodied in the Designs Act, 2000,
and the Designs Rules, 2001, provides a specialized regime for protecting the
aesthetic and ornamental features of industrially produced articles. Key tenets
include the requirement for a design to be new or original on a global scale
("absolute novelty"), to be applied to an article through an industrial process, and
for its features to appeal to and be judged solely by the eye. The system
 operates on a "first to file" basis, granting the registered proprietor exclusive
rights (termed "copyright in design") for an initial period of ten years, extendable
by a further five years. The Act lays down detailed procedures for application,
examination, registration, renewal, restoration of lapsed designs, and
cancellation of erroneously registered designs. It also provides civil remedies for
piracy (infringement), including injunctions and monetary relief, and outlines the
interplay with other intellectual property rights, particularly copyright and
trademark law.
● Challenges and Emerging Issues:
Despite the comprehensive nature of the Designs Act, 2000, several challenges
and emerging issues affect its practical application and effectiveness:
1. Enforcement Effectiveness: While legal remedies for infringement are
available, their practical enforcement can be hampered by delays in court
proceedings (13), the costs of litigation, and difficulties in proving
infringement, especially against diffuse counterfeiters (13).
2. Digital Designs: The increasing prevalence of digital designs, such as
graphical user interfaces (GUIs), icons, and virtual product designs, poses
new questions regarding their eligibility for protection under the current Act,
which was primarily conceived for tangible articles. The interpretation of
"article" and "industrial process" in the digital context needs further
clarification.
3. Overlap with Other IP Rights: The interface between design law and
copyright law (particularly Section 15 of the Copyright Act) and between
design law and trademark law (especially concerning shape marks and
passing off) continues to generate complex legal disputes, despite judicial
efforts like the Cryogas and Carlsberg rulings. Achieving a clear and
predictable demarcation remains a challenge.
4. Non-Membership in the Hague Agreement: India's absence from the
Hague System for the international registration of industrial designs limits the
options for Indian designers seeking streamlined protection abroad and for
foreign designers seeking protection in India via this route (44). This can
impact the cost-effectiveness and ease of international IP strategy for
businesses.
5. Awareness and Accessibility: There is a perceived lack of awareness about
the benefits and procedures of design registration, particularly among small
and medium-sized enterprises (SMEs) and individual designers (9). This can
lead to underutilization of the design protection system and loss of valuable
 IP rights.
6. Examination Quality and Speed: While the Indian Patent Office endeavors
to examine applications efficiently, backlogs and the subjective nature of
assessing "novelty" and "appeal to the eye" can sometimes lead to delays or
inconsistent outcomes.
● Potential Reforms and the Way Forward:
The field of design law is not static; it must evolve to meet the demands of
technological advancements, changing business models, and global trends. The
current framework, while robust for traditional industrial designs, will need to
adapt to effectively protect new forms of designs and ensure the system
continues to incentivize innovation.
Potential areas for reform and future development include:
1. Accession to the Hague Agreement: Serious consideration of India joining
the Hague Agreement could significantly benefit Indian designers by
simplifying and reducing the cost of obtaining international design protection,
and also attract foreign filings into India.
2. Streamlining Domestic Procedures: Continued efforts to streamline the
examination and registration processes at the Indian Patent Office,
potentially leveraging AI tools for preliminary novelty searches and improving
digital infrastructure, could reduce pendency and enhance efficiency.
3. Clarification for Digital Designs: Developing clearer guidelines or legislative
amendments to address the protection of digital designs, including GUIs,
icons, and designs for virtual environments, is becoming increasingly
important. This might involve re-evaluating the interpretation of "article" and
"industrial application" in the digital context.
4. Strengthening Enforcement Mechanisms: Exploring measures to expedite
the resolution of IP disputes, such as strengthening specialized IP benches in
courts or promoting alternative dispute resolution mechanisms, could
improve enforcement outcomes.
5. Enhanced Public Awareness: Implementing targeted awareness campaigns
and educational programs, especially for SMEs, startups, and designers in
non-traditional sectors, can promote greater understanding and utilization of
the design registration system (12).
6. Legislative Refinements: Periodic review of the Designs Act and Rules to
address ambiguities highlighted by judicial decisions or to align with
international best practices will be necessary. This could include further
clarifying the interplay with copyright and trademark laws.
The evolving nature of design itself, driven by new technologies like 3D printing,
artificial intelligence in design generation, and the metaverse, will continue to test the
boundaries of existing legal frameworks. Future legislative and judicial responses will
likely focus on adapting the core principles of design law, such as "visual appeal" and
"industrial application," to these new realities, ensuring that the design system
remains relevant and effective in fostering creativity and economic growth in an
increasingly dynamic global environment.

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