Industrial design

What is Industrial Design

Industrial design is a process of design applied to physical products that are to be manufactured by mass production. It is the creative act of determining and defining a product's form and features, which takes place in advance of the manufacture or production of the product. Industrial manufacture consists of predetermined, standardized and repeated, often automated, acts of replication, while craft-based design is a process or approach in which the form of the product is determined personally by the product's creator largely concurrent with the act of its production.

Definition of Industrial Design

Industrial design according to IPR

The common types of intellectual property rights are: patents, copyright, trademarks, industrial design, trademarks, trade secrets, geographical indicators and layout design for Integrated Circuits.

An industrial design An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of patterns and colors in three dimensional forms, containing aesthetic value. It can be a two or three dimensional pattern, used to produce a product. Even the traditional craft items like hand-woven articles like carpets, cotton bed covers can also be registered for protection as an Industrial design (Kannan, 2010). The design has to be registered against imitation and unauthorized copying. The protection is provided for five years and it can be renewed for fifteen years

Industrial Design according to Design Act 2000

“Design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957).

Industrial Design according to International instrument(s)

At the 29th General Assembly in Gwangju (South Korea), the Professional Practice Committee unveiled a renewed definition of industrial design as follows:

Industrial Design is a strategic problem-solving process that drives innovation, builds business success, and leads to a better quality of life through innovative products, systems, services, and experiences.

An extended version of this definition is as follows:

Industrial Design is a strategic problem-solving process that drives innovation, builds business success, and leads to a better quality of life through innovative products, systems, services, and experiences. Industrial Design bridges the gap between what is and what’s possible. It is a trans-disciplinary profession that harnesses creativity to resolve problems and co-create solutions with the intent of making a product, system, service, experience or a business, better. At its heart, Industrial Design provides a more optimistic way of looking at the future by reframing problems as opportunities. It links innovation, technology, research, business, and customers to provide new value and competitive advantage across economic, social, and environmental spheres.

According to IDSA( Industrial Designers Society Of America)

The definition of Industrial Design (ID) is the professional practice of designing products, devices, objects, services used by millions of people around the world every day.

Industrial Design according to official document(s)

In a legal sense, an industrial design constitutes the ornamental aspect of an article. An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.^[1]

Industrial Design according to official government report(s)

According to the Office of the Controller General of Patents, Designs and Trade Marks Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India:

The registration and protection of industrial designs in India is administered by the Designs Act , 2000 and corresponding Designs Rules , 2001 which came into force on 11th May 2001 repealing the earlier Act of 1911. The Design Rules, 2001 was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to force from 30th December, 2014, which incorporates a new category of applicant as small entity in addition to natural person and other than small entity.

The industrial design recognizes the creation new and original features of new shape, configuration, surface pattern, ornamentations and composition of lines or colours applied to articles which in the finished state appeal to and are judged solely by the eye.

Land mark case law(s)

Bharat Glass Tube Limited vs Gopal Glass Works Limited on 1 May, 2008:

In Bharat Glass Tube Limited vs Gopal Glass Works Limited on 1 May, 2008 the Supreme Court dismissed the appeal and upheld the respondent's registration, finding that the design was new and original when applied to glass sheets

Microfibers Inc. vs Girdhar & Co. & Anr. on 28 May, 2009:

In the Microfibres Inc. v. Girdhar & Co. case, decided on May 28, 2009, the Delhi High Court affirmed that designs require registration under the Designs Act, 2000 for protection, and unregistered designs cannot claim copyright protection under the Copyright Ac.

Micolube India Limited vs Rakesh Kumar Trading As Saurabh ... on 15 May, 2013:

In Micolube India Limited vs Rakesh Kumar Trading As Saurabh it was held that a suit for infringement of registered Design is maintainable against another registered proprietor of the design under the Designs Act, 2000 and the expression “any person” found in Section 22 of the Designs Act would not exclude a subsequent registrant as no such words of limitation are found

Types of Industrial Design

Industrial design, in the context of Intellectual Property Rights(IPR), refers to the protection of the aesthetic and visual aspects of a product. Different types of industrial designs are recognized and protected under IPR laws across various jurisdiction, and they typically fall under one or more of the following categories,

Product Design:

The definition of product design describes the process of imagining, creating, and iterating products that solve users’ problems or address specific needs in a given market. The key to successful product design is understanding the end-user customer, the person for whom the product is being created. Product designers attempt to solve real problems for real people by using empathy and knowledge of their prospective customers’ habits, behaviors, frustrations, needs, and wants.^[2]

Graphic Design:

Graphic design is a craft where professionals create visual content to communicate messages. By applying visual hierarchy and page layout techniques, designers use typography and pictures to meet users’ specific needs and focus on the logic of displaying elements in interactive designs to optimize the user experience.^[3]

Textile Design:

Textile design is a highly creative field that involves the process of creating the designs that are printed on these woven, knitted, or other types of fabrics. The field of textile design includes pattern-making, while also managing the production process. Textile designers are highly-creative people who can draw, have a superior eye for color, pattern, and texture, and an appreciation for the fine points of textiles and fashion. They recognize the fluctuations in trends and fashion, understand textile techniques, are good communicators, possess problem-solving skills, and enjoy a challenge, all while staying on budget and deadline. Your design portfolio is a tool to showcase your work to the world. A good portfolio can launch your career and catch the attention of the industry experts. ^[4]

2D & 3D designs

A dimension is something that can be measured, even if that measurement is very small. What is the definition of two-dimensional? Two-dimensional refers to something that exists only in a plane, an object with length and width but no depth. A two-dimensional, or 2D, object is a flat object that has length and width but no depth. If a two-dimensional shape is graphed on a coordinate plane, only the x- and y-axes are needed.

On the other hand, a three-dimensional, or 3D, object has length, width, and depth. It is something one can hold in their hand, not just look at. If a three-dimensional object is graphed on a coordinate plane, the x-, y-, and z-axes are all needed.

The classification according to Locarno Agreement

The accession to the Locarno Agreement would be important from the perspective of international harmonization and user convenience in conducting searches on designs registered in other countries. Any applicant who files an international design application under Hague Agreement is required to classify the article according to the Locarno Classification

Hague System: Simple and economic international registration of industrial designs. enables design owners obtaining their designs protection with a minimum formalities and expenses. standardized in particular, they are relived of the need to make a separate national application in each of the contracting parties in which they seek protection, thus avoiding the complications arising from the procedures and languages which differ from one state to another.

The Locarno Classification comprises:

• A list of classes and subclasses
• An alphabetical list of goods in which industrial designs are incorporated, with an indication of the classes and subclasses into which they fall

CLASS	LOCARNO CLASSIFICATION
Class 1	FOODSTUFFS	18, 0
Class 2	ARTICLES OF CLOTHING AND HABERDASHERY	4, 42, 91
Class 3	TRAVEL GOODS, CASES, PARASOLS AND PERSONAL BELONGINGS, NOT ELSEWHERE SPECIFIED	52, 2
Class 4	BRUSHWARE	2, 16
Class 5	TEXTILE PIECEGOODS, ARTIFICIAL AND NATURAL SHEET MATERIAL	19, 42
Class 6	FURNISHING	1, 0
Class 7	HOUSEHOLD GOODS, NOT ELSEWHERE SPECIFIED	1, 0
Class 8	TOOLS AND HARDWARE	15, 54, 92
Class 9	PACKAGES AND CONTAINERS FOR THE TRANSPORT OR HANDLING OF GOODS	2, 0
Class 10	CLOCKS AND WATCHES AND OTHER MEASURING INSTRUMENTS, CHECKING AND SIGNALLING INSTRUMENTS	4, 15, 16
Class 11	ARTICLES OF ADORNMENT	4, 49, 91
Class 12	MEANS OF TRANSPORT OR HOISTING	9, 66, 67, 69, 72
Class 13	EQUIPMENT FOR PRODUCTION, DISTRIBUTION OR TRANSFORMATION OF ELECTRICITY	20, 58
Class 14	RECORDING, COMMUNICATION OR INFORMATION RETRIEVAL EQUIPMENT	15, 16
Class 15	MACHINES, NOT ELSEWHERE SPECIFIED	15, 9, 54, 57, 28
Class 16	PHOTOGRAPHIC, CINEMATOGRAPHIC AND OPTICAL APPARATUS	15, 16
Class 17	MUSICAL INSTRUMENTS	6, 77
Class 18	PRINTING AND OFFICE MACHINERY	15, 54, 57, 75
Class 19	STATIONERY AND OFFICE EQUIPMENT, ARTISTS' AND TEACHING MATERIALS	1, 2
Class 20	SALES AND ADVERTISING EQUIPMENT, SIGNS	12, 46
Class 21	GAMES, TOYS, TENTS AND SPORTS GOODS	6, 41
Class 22	ARMS, PYROTECHNIC ARTICLES, ARTICLES FOR HUNTING, FISHING AND PEST KILLING	15, 41
Class 23	FLUID DISTRIBUTION EQUIPMENT, SANITARY, HEATING, VENTILATION AND AIR-CONDITIONING EQUIPMENT, SOLID FUEL	15, 16
Class 24	MEDICAL AND LABORATORY EQUIPMENT	16, 94, 87, 98
Class 25	BUILDING UNITS AND CONSTRUCTION ELEMENTS	19, 90
Class 26	LIGHTING APPARATUS	5, 88
Class 27	TOBACCO AND SMOKERS' SUPPLIES	18
Class 28	PHARMACEUTICAL AND COSMETIC PRODUCTS, TOILET ARTICLES AND APPARATUS	2, 4, 44
Class 29	DEVICES AND EQUIPMENT AGAINST FIRE HAZARDS, FOR ACCIDENT PREVENTION AND FOR RESCUE	15
Class 30	ARTICLES FOR THE CARE AND HANDLING OF ANIMALS	20, 47
Class 31	MACHINES AND APPLIANCES FOR PREPARING FOOD OR DRINK, NOT ELSEWHERE SPECIFIED	18, 15
Class 32	GRAPHIC SYMBOLS AND LOGOS, SURFACE PATTERNS, ORNAMENTATION	12

Slight differences and nuances in the Industrial Design and Product Design

Product design is a holistic process that encompasses the entire lifecycle of a physical or digital product, from ideation and development to launch and beyond. Product designers are concerned with understanding user needs, defining product strategy, and creating solutions that address those needs.

Historically, product design was primarily associated with the creation of physical objects, like appliances, furniture, or vehicles. However, as technology has advanced, the definition of “product” has expanded to include digital products like apps, software, and websites

Industrial design is the art and science of creating physical products that are functional, aesthetically pleasing, and optimized for mass production. Industrial designers focus on how the products look, feel, and function in the hands of the user. They blend form and function to create solutions while focusing on human factors design elements.

Industrial product designers consider every aspect of a product, from its shape and materials to its ergonomics and usability. Some of their primary goals are to ensure the products are practical, durable, and aligned with the brand’s identity. Depending on the project, they may also collaborate with mechanical, electrical, and software engineers.

Difference between the responsibilities of a product designer and industrial designer

Product Design	Industrial Design
Fuctionality	Aesthetic design
digital prototypes	Ergonomics and usability
Market feasibility	Design for mass production

Variations/ multiple meanings in Industrial Design of usage in research

The term industrial design has many synonyms such as industrial project, commercial design, technological design ,industrial form, industrial end, modern design, bauhaus, industrial art having the same meaning , 'A process of design applied to products that are to be manufactured through techniques of mass production'.

Functional variations across regions

Most of the rules and leading decision regarding industrial design have emerged from the United States, European union, Australia and Japan. In US, the design protection relies on a combination of different laws but EU is moving towards uniform European design law while Japan also has sui generis forms of design protection. In these four countries industrial design are protected using variety of intellectual property rights; trademark law plays a vital role in the protection of designs in US, the EU and Australia. Moreover, patent law also influences the protection of design in Japan and the US.

Appearance of 'industrial design' in database

Database(governmental)- Intellectual property India

The registration and protection of industrial designs in India is administered by the Designs Act, 2000 and corresponding Designs Rules, 2001 which came into force on 11th May 2001 repealing the earlier Act of 1911. The Design Rules, 2001 was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to force from 30th December, 2014, which incorporates a new category of applicant as small entity in addition to natural person and other than small entity.

The industrial design recognizes the creation new and original features of new shape, configuration, surface pattern, ornamentations and composition of lines or colors applied to articles which in the finished state appeal to and are judged solely by the eye.

In order to establish a Quality Management System (QMS) in respect of design registration activities, the office of the CGPDTM has acquired ISO 9001:2008 certification for the Design application registration process. The accreditation was awarded by the BSI (British Standard Institution) on 13/04/2015. Currently the certificate is valid up to March, 2018 subject to yearly Continuous Assessment Visit (CAV) audits. The ISO 9001: 2008 certificate has been awarded for the scope of “Protection & maintenance of Industrial Design through registration relating to article of manufacture and any substance under the provisions of Designs Act, 2000.”

Database (inter-governmental)- WIPO

In a legal sense, an industrial design constitutes the ornamental aspect of an article.

An industrial design may consist of three dimensional features, such as the shape of an article, or two dimensional features, such as patterns, lines or color.

In principle, the owner of a registered industrial design or of a design patent has the right to prevent third parties 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. Industrial designs are applied to a wide variety of products of industry and handicraft items: from packages and containers to furnishing and household goods, from lighting equipment to jewelry, and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols, graphical user interfaces (GUI), and logos.

In most countries, an industrial design needs to be registered in order to be protected under industrial design law as a “registered design”. In some countries, industrial designs are protected under patent law as “design patents”.

Industrial design laws in some countries grant – without registration – time- and scope limited protection to so-called “unregistered industrial designs”.

Depending on the particular national law and the kind of design, industrial designs may also be protected as works of art under copyright law.

Research that engages with 'Industrial design'

Research document: India Design Report

The registration and protection of industrial designs in India is administered by The Designs Act, 2000 and the corresponding Designs Rules, 2001 which came into force on May 11, 2001. The Designs Rules, 2001 was further amended by The Designs (Amendment) Rules, 2008, The Designs (Amendment) Rules, 2014 and The Designs (Amendment) Rules, 2021. The industrial designs recognizes the creation of new and original features of new shape, configuration, surface pattern, surface ornamentations and composition of lines or colours applied to articles which in the finished state appeal to and is judged solely by the eye. The latest amendment in Designs Rules came into force from January 25, 2021, that incorporates a new category recognized as 'Startup'; which in case of an Indian entity is recognized as so by the competent authority under Startup India Initiative and in case of a foreign applicant, an entity fulfilling the criteria for turnover and period of incorporation or registration as per Startup India Initiative and submitting declaration to that effect. This latest category is in addition to the already existing categories of 'Natural person(s)', 'Small Entity (ies)' and 'Others, alone or with natural person(s) and/ or Startup(s) and/ or Small entity (ies)'. Fees for 'Small Entity (ies)' or 'Startup(s)' has also been revised to that of Natural Person(s). Moreover, sub-rule (1) under rule 10 has been substituted and articles for the purpose of the registration of designs are being classified as per current edition of ‘International Classification for Industrial Designs (Locarno Classification) published by World Intellectual Property Organization (WIPO)’.

Design Applications Filed & Registered:

Design Applications Filed & Registered

During the reporting year, the number of applications filed for registration of designs was 22698 and number of designs registered was 23400. The graphic representation of the trend of filing of design applications and its registration is depicted below

Applications from Indian and Foreign Origin

Applications from Indian and Foreign Origin

The number of applications that originated from India was 19245, while 3453 numbers of applications were of foreign origin during the reporting year. The number of applications originating from India was about 85%percent of total filing. The graphic representation of the trend of filing of design applications and its registration by origin is depicted below

Applications filed by Indian Applicants:

The total number of applications filed by Indian applicants during the year was 19245, out of which, Maharashtra occupied the first position with 3683 applications. Gujarat occupied the 2nd position with 2336 applications while Tamil Nadu took the 3rd position with 2330 applications

Applications filed by Foreign Applicants:

With respect to 3453 applications originating from abroad, the U.S.A. leads with the maximum number of applications (891) followed by China (362), Germany (287), Japan (287),Republic of Korea (271), Switzerland (189), U.K. (160), France (148), Netherlands (135) and Italy (83). There were 2955 applications claiming priority under the reciprocal arrangements under Section 44 of The Designs Act, 2000

Design applications filed according to classification:

Design applications filed according to classification

Among the applications originating from India, 2485 applications were filed under Class 02 (Articles of clothing & haberdashery) followed by 1985 under Class 12 (Means of transport or hoisting), 1443 under Class 24 (Medical and Laboratory Equipment), followed by 1383 under class 15(Machines), 1329 under class 23 (Fluid Distribution Equipment), 1169 under class 09 (Packages and containers), 1072 under class 06 (Furnishing), 1053 under Class 07 (Household goods not elsewhere specified) etc. On the other hand, the class-wise trend of applications originating from Foreign countries during the reporting year were; 891 362 287 287 271 189 160 148 135 83 62 52 46 45 40 35 34 32 28 27 0 250 500 750 1000 No. of Applications 52 467 applications under Class 14 (Recording, communication or information retrieval equipment), 384 under Class 24 (Medical and Laboratory Equipment), 357 under Class 12 (Means of Transport or Hoisting), 275 under Class 09 (Packages and containers), 265 under class 23 (Fluid Distribution Equipment), and 211 under Class 10 (Clocks and watches and other measuring instruments, checking and signaling instruments). The remaining applications were filed in other classes. The detailed class wise filing trend for Indian as well as Foreign applications is presented below

Jurisdiction to file for infringement

The Designs Act does not impose any criminal remedy. A registered design in India can be enforced by way of a civil action. The registered owner of a design enjoys the exclusive right to apply a design to the article in the class in which the design has been registered. A registered owner can file an infringement suit. A civil action enforcing a registered design can be filed before the District Court where the defendant resides or conducts business or where infringement has taken place. In addition to using the defence of non-infringement, the infringer can use the defence of invalidity of the design on the grounds that the design lacks novelty, is indistinguishable from a known design or contains scandalous matter. If the defence of invalidity is used in a civil action, the District Court no longer has jurisdiction and the suit is transferred to the High Court with jurisdiction over that District Court. Under the act, the registered owner of a design should mark the article with the word ‘Regd’ or ‘Registered’ and the registration number, except in cases of textile designs and articles made of charcoal dust. If the mark is missing, the owner is not entitled to claim damages. Indian courts regularly deal with design infringement matters and a robust body of case law lays down the established legal principles.

Time frame of enforcement

The time frame of enforcement action in both registered and unregistered rights is largely the same, largely because the stages of suit proceedings before the court are the same. Further, in a number of cases, the dispute is settled by signing and submitting a ‘compromise application’ before the trial begins (ie, within one to years of instituting a suit). Further examples include:

• the admission of suit and hearing on ex parte injunction application – the suit is listed for hearing within two to three days from the date of filing;
• the appearance of defendants – within 30 days from serving the summons on the defendants; and
• filing a written statement – within 30 days from serving the summons on the defendants (extendable up to a maximum of 120 days, subject to the payment of costs and agreeing to a delay if the application if moved). The defendant is also required to file an affidavit admitting and denying the plaintiff’s documents.

   

Should no written statement be filed, the plaintiff can file an application requesting summary judgment. If the application is allowed, the court will hear the suit ex parte and pass a summary judgment within one to two years of instituting a suit. Should this be disallowed, the plaintiff will be asked to move their evidence before the court and record oral evidence before proceeding to complete adjudication of the case.

Should the suit be contested by the defendant, the timeline is as follows:         

• filing a replication by the plaintiff – two to four weeks from receipt of the written statement (the plaintiff is also required to file an affidavit admitting and denying the defendant’s documents); and
• framing issues – 12 to 18 months from filing suit.

The completion of the trial stage of the suit (submitting a list of witnesses, filing evidence, exhibiting of documents before the board, recording examination-in-chief and cross-examination of witnesses from both sides), the final argument before the court and passing of final judgment may take anywhere between three and five years.

Case laws

TK Prestige Ltd V KCM Appliances Private Limited Forum: High Court of Delhi

Case No.: CS(COMM) 697/2022

Judgement dated: 13 April 2023

Issue: Whether the certificate of registration for design registered for a 'Pressure Cooker with Container and Lid (Set) for Household,' is invalid due to the registration of six designs instead of one, and whether the defendant's pressure cooker infringes the suit design.

Judgement: The Plaintiff filed a suit for infringement of its design 324727- 001, which was registered for a 'Pressure Cooker with Container and Lid (Set) for Household'. The Defendant argued that the certificate of registration of a design is invalid because it registered six designs instead of one, contrary to the rule that one certificate can only register one design. Six different pressure cookers cannot be considered a set and, therefore, cannot be covered by one design registration. However, the court mentioned that the definition of 'set' in the Designs Rules is irrelevant to the validity of the design registration in question. The interpretation of 'set' provided by Defendant is in line with the definition in the rules. The court agreed that six pressure cookers cannot be considered a set. Nevertheless, it concluded that the definition of 'set' is not relevant to the current dispute. The suit design is registered in Class 07-02, which includes 'Cooking appliances, utensils, and containers.' The court noted that the term 'article' in the Designs Act encompasses any part of an article capable of being made and sold separately. Therefore, multiple articles falling within the same class can be covered by one design registration. The court further explained that the certificate of registration treats the 'pressure cooker with container and lid' as a set for registration purposes. Thus, one pressure cooker with lid and five open pressure cookers can be legitimately covered by one design registration since they belong to the same class of articles. The court concluded that the certificate of registration covers essentially one design, involving the same shape and configuration of the container and lid, which constitutes a set. The court examined the challenge to the validity of a suit design based on prior publication, novelty, originality and functionality. The defendant argued that the suit design is invalid due to prior publication of a YouTube video featuring a pressure cooker similar to the design. However, the court determined that the YouTube pressure cooker and the suit design are different in shape, and therefore, the argument of prior publication is not applicable. Regarding functionality, the court clarified that a design can have both functional and aesthetic attributes. While the pressure cooker lid may have functional advantages, its aesthetic appeal is also relevant for design registration. The court held that the suit design has aesthetic attributes and qualifies for registration based on eye appeal. In terms of piracy or infringement, the court compared the defendant's Impex Dripless pressure cooker with the suit design. It determined that the container and lid of the defendant's pressure cooker are similar in shape to the suit design. The minor differences mentioned by the defendant are considered trade variants or insignificant in light of the overall shape and configuration. Moreover, the court concluded that the defendant has borrowed the idea of the central depressed portion of the lid, which was originally devised by the plaintiff. Thus, the court restrained the defendant from manufacturing or selling the Impex Dripless pressure cookers or any other pressure cooker that infringes the suit design.

International Variations

This section will help understand how industrial design is defined in India and other countries, use of the term in other countries in comparison to India. These countries have been listed by the World intellectual property organization (WIPO) on the basis of number of applicants filed in the field of design. The World Intellectual Property Organization (WIPO), an agency of the United Nations, was established when the debate intensified in the world on how to protect intellectual property rights. Due to the efforts of this organization, the importance of intellectual property rights gained prominence.

Percentage shares of total design filing activity by top 5 offices, 2023

India

Meaning- Industrial design recognizes the creation of new and original features of a new shape, configuration, surface pattern, ornamentations and composition of lines or colors applied to articles which in the finished state appeal to and are judged solely by the eye.

Act- An industrial design is the ornamental or aesthetic aspect of an article which must appeal to the eye. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color. According to the Designs Act, 2000 in India, 'design' means any combination of shape, sequence, arrangement, pattern or ornamentation, lines or characters applied to any object which may be represented either in two dimensions or in three dimensions. Or be in both. The registration and protection of industrial designs in India is administered by the Designs Act, 2000 and corresponding Designs Rules, 2001 which came into force on 11th May 2001 repealing the earlier Act of 1911. The Design Rules, 2001 was further amended by Designs (Amendment) Rules 2008 and Designs (Amendment) Rules 2014. The last amendment in Designs Rules came in to force from 30th December 2014, which incorporates a new category of applicant as small entity in addition to natural person and other than small entity.

Process to register design:

Step 1 - Finding out whether any registration already exists

The Designs office can assist you to search whether the design has been previously registered. If the registration number is known, Form No.-6 should be filed along with the prescribed fees of Rs. 500. If the representation of the article or the specimen of the article is filed Form No.-7 along with the prescribed fees of Rs. 1,000 is required

Step 2- Preparing a representation of the design

A representation is the exact representation of the article on which the design has been applied. It should be prepared on white A4 size paper of durable quality. Do not prepare it on cardboard or mount it on other paper. Indicate details of the design and applicant clearly.

Step 3 - Identifying the class of design

Designs are required to be categorized in separate classes in order to provide for systematic registration. An internationally accepted classification of Industrial Designs based upon the function of the article is required. The class and sub-class should be mentioned in the application. There are 32 classes and most of the classes are further divided into sub-classes.

Step 4 - Providing a statement of novelty

A statement of novelty should be included on the representation of a design as per the Act in order to specify the claim. This will enable speedier examination and provide a more specific protection. The claim will protect the overall visual appearance of the design as described in the representation of drawing.

Step 5 -Including a disclaimer

If the ornamental pattern on an article is likely to be confused with a trade mark, suggests any mechanical action or contains words, letters, numerals, etc., a disclaimer should be included in the representation.

Step 6 -Claiming a priority date

If you have applied for protection of the design in convention countries or countries which are members of inter-governmental organizations, you can claim registration of the design citing a priority date in India. This is the date of filing of the application in any of such countries provided the application is made in India within six months.

Step 7 - Determining the fee to be paid

Applications are to be accompanied by the required fee through cheque or draft payable at Kolkata or in cash (if filed in Design Office, Kolkata). Application for the registration of design is Rs 1,000 and for renewal it is Rs. 2,000.

Step 8 - Ensuring all enclosures are attached

File an application only after ensuring that all enclosures and fee in the required numbers are attached. Applications can be filed in either the Design Office in Kolkata or the branch offices of the Patent office in Delhi, Mumbai or Chennai.

Step 9- Complying with objections (if any)

If the Design Office seeks additional information or clarifications after preliminary examination, please ensure that these are provided promptly. This will help the office to take up your application for early examination.

Step 10- Providing full details

While filing an application make sure that all contact details and addresses are clearly and legibly filled in. This will enable the office to keep in touch with you and convey decisions. Please remember that all designs are not registerable. Designs registered come into force from the date of registration. Designs registered should be renewed in time for them to be valid

Provision for protection of industrial design - India's position in the protection of intellectual rights - In the Global Intellectual Property Index-2020, India ranked 40 out of 53 countries with a score of 38.46%, while in the year 2019, India was ranked 36 out of 50 countries with a score of 36.04%.

1.Efforts Made by the Government of India for the Protection of Intellectual Property Patent Act 1970 and Patent (Amendment) Act, 2005: The Indian Patent and Design Act was first enacted in India in the year 1911. After independence, the Patent Act was enacted in the year 1970 and it was implemented from the year 1972. The Act was amended by the Patents (Amendment) Act, 2002 and the Patents (Amendment) Act, 2005. As per this amendment, 'Product Patent' was extended to all areas of technology. For example, it was expanded in the field of food, drug manufacturing etc.

2.Trademark Act, 1999: The Trademark Act, 1999 has been made for trademarks in India. The trademark act includes the word, sign, sound, color, shape of the article, etc.

3.Copyright Act, 1957: By enacting the Copyright Act in the year 1957, this law was implemented across the country to protect intellectual property rights.

4.The Geographical Indications of Goods (Registration and Protection) Act, 1999: This law ensures that no one other than the registered user can use that popular product name.

5.Designs Act, 2000: Provides protection to all types of industrial designs.

6.National Intellectual Property Rights Policy, 2016: On May 12, 2016, the Government of India approved the National Intellectual Property Rights Policy. Through this rights policy, intellectual property is protected and promoted in India.

Design registry:

Register of designs:

Information relevant to any registered designs are entered in Register of Designs kept in Patent Office. The register is prima facie evidence of any matter to be entered therein. Any person can inspect the Register of Designs upon request to the Controller with prescribed fees.

Procedure for registration of design:

1. Application duly filed in on the prescribed form (Form-1) along with the prescribed fees, stating name in full, address and nationality, name of the article, class number and address for service in India. The application shall also be signed either by the applicant or by his authorized agent. For small entity, Form 24 & documentary evidences thereof has to be submitted along with Form 1 and representations.
2. Representation (in quadruplicate on durable paper of size 210mm x 296.9 mm with a suitable margin) of the article where drawings, photographs, tracings or other representationsincluding computer graphics should clearly show the features of the design from different views.
3. A statement of novelty and disclaimer (if any) in respect of mechanical action, trademark, work, letter, numerals should be endorsed on each representation sheet which should be duly signed and dated. (Please see guidelines for preparation of representation sheet in subsequent sections)
4. Power of attorney (if necessary).
5. Priority documents (if any) in case of convention application claimed under Section 44 of the Designs Act, 2000

Jurisdiction :

• MUMBAI: The State of Maharashtra, Madhya Pradesh, Chhattisgarh and Goa
• AHMEDABAD: The State of Gujarat and Rajasthan and Union Territories of Daman, Diu, Dadra and Nagar Haveli.
• KOLKATA: The State of Arunachal Pradesh, Assam, Bihar, Orissa, West Bengal, Manipur, Mizoram, Meghalaya, Sikkim, Tripura, Jharkhand and Union Territories of Nagaland, Andaman & Nicobar Islands.
• NEW DELHI: The state of Jammu & Kashmir, Punjab, Haryana, Uttar Pradesh, Himachal Pradesh, Uttarakhand, Delhi and Union Territories of Chandigarh
• CHENNAI: The state of Andhra Pradesh, Telangana, Kerala, Tamil Nadu, Karnataka and Union Territories of Pondicherry and Lakshadweep Island

UK

Meaning- An industrial product design can be defined as the appearance of a three dimensional or two dimensional, or of a part of a product, that results from features materials or other elements that form the design.

Act- The primary legislation governing designs in the United Kingdom includes:

• the Registered Designs Act 1949 (UK registered designs);
• the Copyright, Designs and Patents Act 1988 (UK unregistered design rights);
• the EU Designs Directive (98/71/EC);
• the EU Community Designs Regulation (6/2002); and
• the Intellectual Property Act 2014 (amending the Copyright, Designs and Patents Act in relation to UK unregistered design rights).

Process to register design-

A design registration helps protect the appearance of a product, such as its shape or pattern.

Registering your design makes it easier to prove:

• that the design is legally yours
• when you created it

This will help if anyone tries to copy or use your design without your permission.

Before registering a design, check it is the right protection for your intellectual property.

A design registration lasts 5 years. You must renew your design registration every 5 years to keep it protected - up to a maximum of 25 years.

What you can register

Your design must be new.

The design of something can include one or more of the following:

• physical shape
• configuration (or how different parts of a design are arranged together)
• decoration or color
• pattern

What you cannot register:

• offensive material, for example swear words or pornographic images
• designs making use of national flags you do not have permission to use
• designs making use of official emblems or hallmarks, for example the Olympic rings or coats of arms
• the functionality of a design, for example a chair that folds down more quickly than others of the same kind

What it costs:

Registering a design costs from £50 for one design to £150 for up to 50.

The application process:

You can apply online or by post.

You must send the Intellectual Property Office (IPO) detailed illustrations of your designs, including any notes to describe exactly what you are registering.

You’ll get a decision on your application within 3 weeks.

Provision for protection-

The Registered Designs Act 1949 is the current law for the registration of designs and the protection of registered designs in the UK. The United Kingdom has a relatively complex system for the protection of designs. Five possible forms of protection are available for aspects of a design: UK registered designs; registered Community designs; UK unregistered design rights; unregistered Community design rights; and copyright, which may protect certain elements of a design for both industrial and non-industrial applications.

USA

Meaning- The IDSA: Industrial Design Society of America defines Industrial design as: Industrial design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of both user and manufacturer. Industrial design seeks to relate hardware to the dimensions, instinctive responses, and emotional needs of the user where these are relevant requirements. Industrial design seeks to rectify the omissions of engineering; a conscious attempt to bring form and visual order to engineering hardware where the technology does of itself provide these features. Through conscious control of form, configuration, overall appearance and detailing, industrial design is capable of conveying to the user the abstract characteristics of a product.

Act-

The United States Patent and Trademark Office (USPTO) provides policy leadership, advocacy, and technical and trade expertise in domestic and international industrial design rights. This includes regular representation of the U.S. government in bilateral and multilateral intellectual property (IP) and trade negotiations, including representation at the World Intellectual Property Organization (WIPO), the ID5 Industrial Design Forum (ID5), and other international and domestic forums and frameworks.

Industrial design (design patent) policy encompasses a number of areas that are critical to responding to the many design-related domestic and international issues that face U.S. rights holders. These include:

• Domestic design and design-related policy issues as they relate to international agreements and treaties, as well as the development of domestic U.S. laws and practice.
• Treaty negotiation and monitoring the enforcement of industrial design-related international treaty provisions.
• U.S. implementation of, and adherence to, international treaty obligations relating to industrial designs.
• Cooperative efforts and studies with foreign intellectual property and design offices, including cataloging and sharing practices for industrial design protection.
• Technical assistance and training on industrial design and design-related matters for U.S. and foreign officials.

Process and criteria for registration:

An application must contain at least the following:

- application data sheet (if claiming priority to earlier-filed applications);

- executed oath or declaration (may be submitted after filing date);

- specification of design with one claim;

- drawings.

There is no deadline for filing a Power of Attorney in a design application. However, it should be done before the decision to grant a design patent. A copy of POA is sufficient. Legalization or notarization is not required.

The Priority Document can be submitted at any time during registration of the design application, up to the date of payment of the issue fee. However, if priority must be perfected during registration, then a priority document will be required sooner. A priority document that is not in English must be translated into English and the translation submitted along with a copy of the original priority document.

The deadline for filing a US design application claiming conventional priority is six months from the date of priority. The right to file the design application may be restored in case failure to meet the deadline was unintentional and if the corresponding request is submitted and the corresponding fee is paid within two months of the expiration of the six-month period.

• Examination of a design application in the US

A design application filed in the US Patent Office undergoes both formal and substantive examinations. Substantive examination should be requested simultaneously with filing.

• Information Disclosure Statement

The applicant is obliged to disclose by way of an Information Disclosure Statement (IDS), any information that could be considered to be material to a determination of patentability of the claimed design. This duty extends to an applicant’s legal representative and anyone involved in the registration of the application. The information can be of any type, and includes but is not limited to prior art. The duty continues until a patent is issued or the application is abandoned. An intentional failure to submit an IDS may result in a later declaration of the design patent as unenforceable.

If the IDS is filed within three months from the application’s filing date or before the first Office Action, no government fee is required to be paid for the filing of an IDS.

In case any information contained in the IDS was first cited in communication from a foreign patent office in a counterpart foreign application more than 3 months prior to filing of said IDS, or was otherwise known to the applicant or applicant’s representative more than 3 months prior to filing the IDS, additional official fees must be paid.

• Novelty grace period

The novelty grace period for design applications in the US constitutes 12 months before the US filing date or before the priority date, if:

- the disclosure was made by the inventor or by a person who obtained the information from the designer (directly or indirectly);

- the disclosure occurs after a public disclosure of the same design by the parties set forth above.

• Grant, validity term and design renewal fees

The issue fee for a U.S. design patent is due three months from the date of issuance of the Notice of Allowance. Design patents that were filed on or after May 13, 2015, have a term of 15 years from the date of issuance. Design patents filed prior to May 13, 2015, have a term of 14 years from the date of issuance. U.S. design patents are not subject to maintenance fees or annuities.

• Duration of registration procedure

Registration of a design application takes between 1-3 years dependent on whether the design process is smooth or if there are oppositions filed.

Design Register:

Information relevant to any registered designs are entered in Register of Designs kept in Patent Office. The register is prima facie evidence of any matter to be entered therein. Any person can inspect the Register of Designs upon request to the Controller with prescribed fees.

Offices to register design:

Any person who desires to register a design is required to submit the following documents to the Design Wingof the Patent Office at "Intellectual Property Office", CP-2, Sector V, Salt Lake, Kolkata - 700 091 or any of the Branch Offices of the Patent Office at Delhi, Mumbai and Chennai. The applications received by the Branch Offices shall be transmitted to Patent Office, Kolkata for processing and prosecuting.

Application procedure:

(i) Application duly filed in on the prescribed form (Form-1) along with the prescribed fees, stating name in full, address and nationality, name of the article, class number and address for service in India. The application shall also be signed either by the applicant or by his authorized agent. For small entity, Form 24 & documentary evidences thereof has to be submitted along with Form 1 and representations.

(ii) Representation (in quadruplicate on durable paper of size 210mm x 296.9 mm with a suitable margin) of the article where drawings, photographs, tracings or other representationsincluding computer graphics should clearly show the features of the design from different views.

(iii) A statement of novelty and disclaimer (if any) in respect of mechanical action, trademark, work, letter, numerals should be endorsed on each representation sheet which should be duly signed and dated. (Please see guidelines for preparation of representation sheet in subsequent sections)

(iv) Power of attorney (if necessary).

(v) Priority documents (if any) in case of convention application claimed under Section 44 of the Designs Act, 2000

China

Example for subject matter

Meaning- ICSID defined industrial design as the application of strategic problem-solving processes to design activities for products, systems, services, and experiences to guide innovation, promote commercial success, and provide a better quality of life.

Act- After four revisions of the Patent Law, China has established an industrial design patent system that not only embodies Chinese characteristics but also aligns with international norms. This system provides institutional protection for both domestic and international innovators to safeguard their design patent rights.

1. Principle of “first-to-file”

Where two or more applicants file patent applications for the identical invention-creation respectively, the patent right shall be granted to the applicant who filed first.

2. Subject Matter as Patentable

With respect to an overall or partial product, any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, which is rich in an aesthetic appeal and is fit for industrial application, may be applied for a design patent in China.

3. Requirements for Granting Patent Rights:

1. Any design for which a patent right is to be granted shall not be a prior design;
2. no entity or individual has filed a patent application for the identical design with the CNIPA before the filing date and the content of the application is disclosed in patent documents announced after the filing date.
3. Any design for which a patent right may be granted shall significantly differ from a prior design or the combination of prior design features.
4. The design to be granted a patent shall meet other relevant provisions of Patent Law and Implementing Regulations of the Patent Law as well.

Process to register design-

In order to obtain a filing date for a design application, a request, drawings or photographs of the design and a brief explanation of the design must be filed. Both paper and electronic filing are available.

The applicant may amend the application documents voluntarily within two months of the date of filing or according to an office action (if any). From 1 November 2019 it is possible to delay publication for a design application by filing a request for deferment examination on the filing date. In addition, the deferment term may be one, two or three years.

Representation requirements

So far as a product with a three-dimensional design is concerned, if the essential features of the design involve six sides, the applicant must submit an orthographic projection of a six-side view; however, if the essential features of the design of involve the view of one side or several sides only, the applicant must submit an orthographic projection view and space diagram of the side concerned, and indicate the reason for the omission of the view in the brief explanation provided.

1. For a product with a flat design, if the essential features of the design involve the view of one side only, the applicant should submit the orthographic projection view of the relevant side only.
2. There is no limitation to the number of drawings. If necessary, an exploded view, cutaway view, sectional view, enlarged view and a view of any states of variation may also be submitted. A reference view may be filed to indicate purpose, method or places of use.
3. Drawings should be made in accordance with the provisions of normal projection, using solid lines of even thickness. Shadow lines, indicative lines, dotted lines, central lines, size lines and dot-dash lines must not be used to show the shape of a design.
4. Photographs must be clear. The background of the photographs should be plain and avoid showing any other content than the claimed design. The product and background should have appropriate distinction in brightness to show the design clearly, avoiding strong light, blinking, shadow and reflection.
5. Where an application for a patent for design seeking concurrent protection of colors is filed, drawings or photographs in color should be submitted.
6. It is possible to file a design application containing multiple similar designs in China. No more than 10 similar designs for the same product or two or more designs which are incorporated in products belonging to the same class and sold or used in sets may be filed as one application. For similar designs in one application, the other designs of the product should be similar to the main design indicated in the brief explanation.
7. For two or more designs belonging to the same class and sold or used in sets in one application, each product should belong to the same class in the classification of products and is customarily sold or used at the same time, and the designs incorporated in each product should have the same concept of design.
8. Further, design patent application of products in sets should not include similar designs for one or more product.

Provision for protection-

An industrial design may be protected by a design patent under the Chinese Patent Law. According to Article 2.1 of the law, ‘invention-creations’ are inventions, utility models and designs. At present, China is not a party to the Hague System, but is hoping to join soon after the fourth revision of the Patent Law which is presently under way.

Copyright, trademark and anti-unfair competition law provide other ways to protect a design idea:

• copyright mainly protects an original work in the artistic sense;
• trademarks generally focus on a distinct symbol or phrase; and
• anti-unfair competition law may play a complementary role to prohibit misleading and confusing behaviors about specific designs or trade dresses with a certain degree of influence.

Republic of Korea

Meaning-Industrial Design is a strategic problem-solving process that drives innovation, builds business success, and leads to a better quality of life through innovative products, systems, services, and experiences. Industrial Design bridges the gap between what is and what’s possible. It is a trans-disciplinary profession that harnesses creativity to resolve problems and co-create solutions with the intent of making a product, system, service, experience or a business, better. At its heart, Industrial Design provides a more optimistic way of looking at the future by reframing problems as opportunities. It links innovation, technology, research, business, and customers to provide new value and competitive advantage across economic, social, and environmental spheres.

Act-

The act for industrial design is the industrial design protection act and the design protection act.

"design" means the shape, pattern, color or a combination of these in an article that produces an aesthetic impression in the sense of sight; the same applies to a part of an article and the style of calligraphy unless Article 12 of this Act applies;

Process to register design-

Article 37 (Application for Design Registration)

(1) A person who intends to have a design registered shall file an application for design registration, stating the following matters, with the Commissioner of the Korean Intellectual Property Office:

1. 1. The name and domicile of the applicant for design registration (or the name and place of business, if the applicant is a corporation);
2. 2. The name and domicile or place of business of the agent, if the applicant for design registration is represented by an agent (the name and the place of business of the patent firm or the patent firm (limited liability), and the name of the patent attorney in charge, if the agent is a patent firm or a patent firm (limited liability));
3. 3. The product or the classification of products in relation to which the design is to be used under Article 40 (2) (hereinafter referred to as “classification of products”);
4. 4. Whether the application is filed for the registration of an independent design or for the registration of a related design (hereafter referred to as “application for the registration of a related design”);
5. 5. The design registration number or the design registration application number of the basic design (applicable only where it is intended to have related designs registered under Article 35 (1));
6. 6. The name and domicile of the person who has created the design;
7. 7. Whether an application is filed for the registration of multiple designs under Article 41;
8. 8. The number of designs and the serial number of each design (applicable only where an application is filed for the registration of multiple designs under Article 41);
9. 9. Matters specified in Article 51 (3) (applicable only where a priority claim is made). (2) An application for design registration under paragraph(1) shall be accompanied by a drawing describing the following matters with respect to each design:

• 1. The product or the classification of products in relation to which the design is to be used;
• 2. The description of the design and the features of the creation;
• 3. The serial number of each design (applicable only where an application is filed for the registration of multiple designs under Article 41). An applicant for design registration may submit a photograph or sample of the design in lieu of the drawing under paragraph.
• (4) Designs eligible for an application for partially examined design registration shall be limited to those for the products specified by Ordinance of the Ministry of Trade, Industry and Energy, from among the categories of products. Applications for design registration for eligible products shall be limited to those subject to partially-examined design registration.
• (5) Except as otherwise provided for in paragraphs (1) through matters necessary for filing an application for design registration shall be prescribed by Ordinance of the Ministry of Trade, Industry and Energy.

Provision for protection-

Article 44 (Applications filed by unentitled person for design registration and protection of legitimate right holders)

If a trial decision made to reject an application filed by a person who is neither the creator of a design nor a legitimate successor to a right to have a design registered (hereinafter referred to as “ineligible person”) for registration of a design becomes final and conclusive on the ground provided for in Article 62 (1) 1, the application filed by the legitimate right-holder for registration of the design after the application for registration of the design is filed by the unentitled person shall be deemed filed at the time the unentitled person filed the application for design registration: Provided, That the foregoing shall not apply where the legitimate right-holder files an application for design registration after 30 days from the date the trial decision to reject the application for design registration becomes final and conclusive.

Article 45 (Design registration by unentitled persons and legitimate right holders)

If a ruling to revoke registration of, or invalidation trial of a design becomes final and conclusive on the ground that the registrant is unentitled, the application filed by the legitimate right-holder for registration of the design subsequent to the application filed by the person unentitled to design registration shall be deemed filed at the time the application for the revoked or invalidated registration of the design was filed: Provided, That the foregoing shall not apply where the legitimate right-holder files an application for design registration after 30 days from the date the ruling to revoke registration or invalidation trial becomes final and conclusive.

Data Challenges

The key challenges and issues faced in the way of analyzing "Industrial design" are:

1. Even though a standardized definition of the term exists, the application varies as the geographic location changes.
2. The term industrial design is interdisciplinary and is a mix of Design and law hence, to understand the term one needs to analyze it from the view of both these disciplines.
3. India has various provisions for the protection of industrial designs such as patents, copyrights, but the criteria varies for each of them this may in turn affect innovation and development.
4. Visual designs may be misleading and can motivate a consumer to buy based on looks rather than the utility or functionality of the product.
5. Industrial design may be confused and read as fashion design.
6. No adequate research papers based only on industrial designs
7. Official government reports are not specific to industrial design they are based on design.

Way ahead

The analysis of the term industrial design has thrown light on a few gaps:

1. There exists a gap in the curriculum being taught on industrial design and the actual application of laws relating to industrial design
2. There is no Unified/standardized framework in India that results in inconsistencies in development in the field

Also known as

sandra-masulin-20051903The term "industrial design" is also known as "fashion design" as industrial design is used to protect the shape, color, pattern and other visual aesthetics of a product rather than its utility.

The term "industrial design" is also known as "product design" as industrial design is used to protect the shape, color, pattern and other visual aesthetics of a product rather than its utility

It is often confused with "Fashion design":

Fashion, in popular culture, is often perceived to be all about high-paid models walking on ramps wearing renowned labels and designers. But in reality, fashion is much more a part of our everyday lives than it is thought to be. Fashion not only revolves around clothing and apparel, but also involves several other aspects such as designs, art, copyrights, patents, trademarks, sustainability, and the like. It is a domain that contains several dimensions such as media, business development, designers, and photography among others.

LinkedIn :

1.https://www.linkedin.com/in/vanshitha-darira-0450b3263

2. https://www.linkedin.com/in/sandra-masulin-3943a3361