Open Access Open Access  Restricted Access Subscription Access

Need for Unregistered Design Rights in India: A Contemplative Cogitation


Affiliations
1 University School of Law and Legal Studies, GGS Indraprastha University, Dwarka, Delhi - 110 078, India
 

India has a specific legislation for the scheme of industrial designs which mandates statutory registration as a prerequisite to obtain IP rights in designs. Industries characterised by products having short lifecycle, release colossal number of new designs in the market in short intervals of time. Due to the dynamism of these sectors, registering all the industrial designs, is not practically and commercially feasible. As the present design regime in India, governed by the Designs Act, 2000, only protects the registered designs, it leaves the unregistered ones open to rampant copying and piracy. The European Union and the United Kingdom are two jurisdictions which offer advanced protection to the unregistered designs, which has proved to provide a competitive edge to their industries, by incentivising their design innovation. Against this background, the article seeks to critically analyse the Designs Act, 2000 to locate loopholes under it, in extending protection to the unregistered designs, undertake a comparative analysis of the unregistered design protection in European Union and United Kingdom, and propose suggestions for introduction of unregistered design rights in India. Further, rapid design piracy caused by 3-D printing, mass production techniques and advanced technologies, supports the urgent need to extend an argument for protection of unregistered designs under the Indian Design regime.

Keywords

Unregistered Designs, Unregistered Design Rights, Community Designs, Short-term products, Designs Act, 2000, EU Regulation, Copyright Act, 1957
User
Notifications
Font Size

  • Johnson M E, Learning from Toys: Lessons in managing supply chain risk from the toy industry, California Management Review, 43 (3) (2001) 106.
  • Indian Brand Equity Foundation, Textile Industry Report, 2022.
  • Federation of Indian Chambers of Commerce and Industry and Klynveld Peat Marwick Goerdeler, State of Play: India's Toy Story- Unboxing Fun and Beyond, 2021.
  • Organisation for Economic Co-operation and Development, Trends in Trade in Counterfeit and Pirated Goods, 2019.
  • The Designs Act, 2000 (16 of 2000), Section 22.
  • The Designs Act, 2000 (16 of 2000), Section 11(1). It provides that registered designs get protection for 10 years and can be further renewed for 5 years.
  • Swarup S K & Rastogi S, Fashion Design and Intellectual Property Rights: An Indian Perspective, Journal of Intellectual Property Rights, 26 (2021) 127.
  • The Designs Act, 2000 (16 of 2000), Section 4.
  • Reckitt Benkiser India Ltd. v Wyeth Ltd., 2013 (54) PTC 90 (Del) (FB).
  • The Designs Act, 2000 (16 of 2000), Section 16.
  • The Designs Act, 2000 (16 of 2000), Section 21.
  • ‘Form 9’ provided under the Design Rules, 2001 provides the form for “Notice of intended exhibition or publication of unregistered design”.
  • Section 19 of the Designs Act, 2000 (16 of 2000) provides the provision related to cancellation of design.
  • The Copyright Act, 1957 (14 of 1957), Section 13(1).
  • The Copyright Act, 1957 (14 of 1957), Section 2(c).
  • 2009 (39) PTC 21 (Del.) (DB).
  • The Copyright Act, 1957 (14 of 1957), Section 15(2).
  • IA No. 2352/2008 in CS (O S) 344/2008 (Delhi HC).
  • 2009 (40) PTC 519 (Del).
  • MANU/DE/0784/2016.
  • Regulation (EC) No. 6/2002, Article 3.
  • Regulation (EC) No. 6/2002, Articles 4, 8 and 9.
  • Regulation (EC) No. 6/2002, Article 4.
  • Regulation (EC) No. 6/2002, Article 5.
  • Regulation (EC) No. 6/2002, Article 6.
  • Regulation (EC) No. 6/2002, Article 11.
  • Regulation (EC) No. 6/2002, Article 7.
  • Regulation (EC) No. 6/2002, Article 19.
  • Case C-345/13 (CJEU, June 19, 2014).
  • Witzburg F M, Protecting fashion: A comparative analysis of fashion design protection in the United States and the European Union, The Trademark Reporter, 107 (2017) 1131.
  • UK Copyright, Designs and Patents Act, 1988, Section 213(2).
  • Cornish W, Llewelyn D & Aplin T, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell Limited, London), 7th Edition, 2010, 624.
  • UK Copyright, Designs and Patents Act, 1988, Section 213(3)(a) and 213(3)(c).
  • UK Copyright, Designs and Patents Act, 1988, Section 213(b)(i). It provides, “Design rights does not subsist in features of shape or configuration of an article which enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function”.
  • UK Copyright, Designs and Patents Act, 1988, Section 213(b)(ii). It provides, “Design rights do not subsist in features of shape or configuration of an article which are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part”.
  • UK Copyright, Designs and Patents Act, 1988, Section 213(1).
  • UK Registered Designs Act, 1949, Section 1B.
  • Cornish W, Llewelyn D & Aplin T, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell Limited, London), 7th Edition, 2010, 625.
  • UK Copyright, Designs and Patents Act, 1988, Section 213(4).
  • [1997] R.P.C. 289.
  • UK Copyright, Designs and Patents Act, 1988, Section 226(1).
  • UK Copyright, Designs and Patents Act, 1988, Section 226(2).
  • [1992] FSR 421.
  • UK Copyright, Designs and Patents Act, 1988, Section 227.
  • UK Copyright, Designs and Patents Act, 1988, Section 216.
  • UK Registered Designs Act, 1949, Section 1B.
  • UK Registered Designs Act, 1949, Section 1B(5) and 1B(6).
  • Regulation (EC) No. 6/2002, Article 6.
  • Rockett E, Trashion: An analysis of Intellectual Property Protection for the fast fashion industry, The Plymouth Law & Criminal Justice Review, 11 (2019) 80.
  • Kur A & Levin M, The Design Approach Revisited: Background and Meaning in The EU Design Approach (Edward Elgar Publishing Limited, UK), 2018, 1-27.
  • [2015] EWHC 216 (Ch).

Abstract Views: 82

PDF Views: 48




  • Need for Unregistered Design Rights in India: A Contemplative Cogitation

Abstract Views: 82  |  PDF Views: 48

Authors

Lisa P. Lukose
University School of Law and Legal Studies, GGS Indraprastha University, Dwarka, Delhi - 110 078, India
Chahat Abrol
University School of Law and Legal Studies, GGS Indraprastha University, Dwarka, Delhi - 110 078, India

Abstract


India has a specific legislation for the scheme of industrial designs which mandates statutory registration as a prerequisite to obtain IP rights in designs. Industries characterised by products having short lifecycle, release colossal number of new designs in the market in short intervals of time. Due to the dynamism of these sectors, registering all the industrial designs, is not practically and commercially feasible. As the present design regime in India, governed by the Designs Act, 2000, only protects the registered designs, it leaves the unregistered ones open to rampant copying and piracy. The European Union and the United Kingdom are two jurisdictions which offer advanced protection to the unregistered designs, which has proved to provide a competitive edge to their industries, by incentivising their design innovation. Against this background, the article seeks to critically analyse the Designs Act, 2000 to locate loopholes under it, in extending protection to the unregistered designs, undertake a comparative analysis of the unregistered design protection in European Union and United Kingdom, and propose suggestions for introduction of unregistered design rights in India. Further, rapid design piracy caused by 3-D printing, mass production techniques and advanced technologies, supports the urgent need to extend an argument for protection of unregistered designs under the Indian Design regime.

Keywords


Unregistered Designs, Unregistered Design Rights, Community Designs, Short-term products, Designs Act, 2000, EU Regulation, Copyright Act, 1957

References