Design Protection and Filing Strategies in India

In India, anyone claiming to have a new or original design can apply for design registration. In addition to natural persons, any company, association, group of persons whether incorporated or not, society or partnership can also own a design right in India.

Under the Indian Designs Act, a "design" is defined as:

• The shape, construction, pattern or ornamentation of an article, or the combination of lines, colours, or any combination thereof, applied to an article by any industrial process or method (whether manual, mechanical or chemical, alone or in combination), whether two-dimensional, three-dimensional or both, which produces the visual effect produced by the eye when the finished article is observed.
• A design does not include any method or principle of construction, or anything which is merely mechanical in nature. Therefore, artistic works as defined in the Indian Penal Code are not protected as designs.

To be protected, a design must be both new and original.

• “Novel” means that the design has not been published, used or otherwise made available to the public in a tangible form in India or other countries.
• "Original" means that the design should originate from the designer themselves. However, if an old design is applied in a new way, it is also considered original.

The Indian Designs Act protects any new and original design that can be applied to an article. This design is protected as long as it:

• Be novel or original
• Not made public (by publication, use or otherwise)
• Significantly different from known designs or combinations thereof
• It does not contain obscene or ugly content and does not violate public order or morality.

To protect a part of an article, the applicant must ensure that the part can be manufactured and sold separately. If the part can be manufactured and sold separately and can be judged independently by visual inspection, then design protection can be obtained for that part.

A design cannot be registered if:

• Lack of novelty or originality
• has been disclosed in India or other countries (by publication, use or otherwise) before the filing date or priority date
• Not significantly different from known designs or combinations thereof
• Contains obscene or offensive content
• Contains any principle of construction or operation, or is essentially mechanical
• Is a trademark, property mark, or work of art

The average cost of obtaining a design registration in India varies depending on whether there are oppositions or a hearing is required. Typically, the total cost is approximately US$500-800.

The Indian Design Act provides for a six-month novelty grace period, but this is limited to disclosure at a notified exhibition or trade fair, provided the applicant has previously notified the Indian design authorities of such disclosure. Failure to do so would destroy the novelty of the proposed design, rendering the grace period inapplicable.