As per the Paris Convention, an applicant can claim priority of up to 6 months in India. The International Classification for Industrial Designs under the Locarno Agreement (32 Classes) is implemented in India, although India is not a party to the Agreement. Industrial designs are protected in India through registration with the Patent Office.
Once a design application is filed, the examiner shall examine the application for novelty and other legal requirements. The design should be new, original and should not have been disclosed anywhere in India or any other country by publication or by use prior to the filing date or priority date. A certificate of registration is issued in respect of a design application accepted by the Controller and published in the Official Gazette. Any person interested may present a petition to the Controller for the cancellation of the registration of the design at any time after the registration of the design for lack of novelty or for not fulfilling any other requirement under the law.
Upon a design registration, the registered proprietor shall have a copyright in the design initially for a period of 10 years starting of the registration date. The period of copyright can be extended for a second period of 5 years from the expiration of the original period of 10 years on payment of the prescribed fee. There is no provision in the design law of India for compulsory working with respect to designs.
Piracy of a registered design is a civil offence and the proprietor can claim damages in addition to seeking injunction.
The Indian Designs Act, 2000 was amended in 2014 with effect from December 30, 2014. The official amendments can be downloaded from this link. The main highlights are as follows:
1. A new category of applicant in the form of “small entity”. Thus, the applicants are classified as – individual, small entity and other entity.
2. The official fee of “small entity” is half of the official fee for an “other entity”.
3. A new Form 24 is to be submitted to claim the benefits associated with the applicant’s status of “small entity”.
4. The official fee is doubled.
How to determine whether an applicant is a small entity or other entity?
a. When the applicant is engaged in the manufacture or production of goods, where the investment in plant and machinery does not exceed INR10 million ($1,626,016), the applicant will be considered as a Small Entity.
b. When the applicant is engaged in rendering services, where the investment in equipment does not exceed INR5 million ($813,008), the applicant will be considered as a Small Entity.
c. When the applicant is engaged in the manufacture or production of goods where the investment in plant and machinery exceeds INR10 million ($1,626,016), the applicant will be considered as an Other Entity.
d. When the applicant is engaged in rendering services, where the investment in equipment exceeds INR5 million ($813,008), the applicant will be considered as an Other Entity.
e. When we claim Small Entity status, we need to submit proper documents to establish the status.
For claiming the status of small entity, we must file Form 28 along with the relevant documents at the Indian Patent Office. If the applicant is a “small entity”, the supporting documents must be provided to establish the status of the applicant.