Renewal and Restoration of Design in India – An Overview

Renewal and Restoration of Design
Karan Singh
| Updated: Jun 22, 2021 | Category: Design

The primary purpose of the Design Act, 2000, is to safeguard any unique or original design created by an individual that applies to a specific article that is to be manufactured by a process or an industrial means. The Design Registration is done to look that the creator of a new design not deprived of his or her genuine rewards. To prevent Design Infringement, the Design Act furnishes provisions concerning the renewal and restoration of Design in India. The owner of an incorporated design is given all opportunities to save the rights connected with the owner’s Design by offering provisions regarding renewal and restoration of Design in India. In this write, we are going to discuss the renewal & restoration of Design in India.

What is the Meaning of Design?

As per Section 2 (d) of the Design Act, 2000, the meaning of Design is provided. A design means a configuration, features of shape, composition or ornament of lines or colour or their combination which is applied to any article whether 2-D or 3-D or in both the forms, by any industrial procedure or means, whether manual, chemical, mechanical or manual, combined or separate, which is final or completed article appeal to and are judged exclusively by the eye. However, a design doesn’t comprise any construction or mode or anything which is in material or substance a simple mechanical device. The meaning of Design doesn’t include Trademark, as mentioned in Section 2 (V) of the Trade and Merchandise Marks, Act, 1958 and an artistic work/property mark mentioned under Section 2(c) of the Copyright Act, 1957.

Any individual who is claiming to be the owner of an original or unique design may apply for Design Registration in India. A design owner may be from India or Convention Nation.

A design owner may be the following people:

  • Design Author;
  • Any individual who has obtained the Design;
  • Any individual for whom the creator or author has developed the Design or;
  • Any individual on whom the Design has been transferred or developed.

In India, a Design Registration application can be filed by the candidate or a professional person, i.e., a Patent agent or legal practitioner. Though, for the candidates who are not living in India, an address of an agent living in India can be used as a service address.

Renewal and Restoration of Design in India – An Overview

  1. Renewal of Design: According to Section 11 of the Design Act, 2000[1], whenever a design is registered under the Act, the registered owner has a Copyright in the Design for a time of ten years from the Design Registration date. Under Section 11 (2) of the Act, 2000, the provisions concerning the extension or renewal of Copyright of Design are provided. The extension or renewal of a Copyright of a registered design can be extended for a period of five years. The renewal can only be completed after the expiration of the actual time of ten years of Design Registration. The Controller does the design renewal after the registered owner fulfils all the necessities.
  2. Restoration of Expired Designed: In case Copyright of incorporated Design ceases to affect non-payment of fees of Copyright renewal, within the time period, the registered owner can go for the restoration of expired Design in India. The registered Design owner can file an application for expired design restoration within twelve months from the date on which the incorporated Design ceases to have an effect.

Vital Necessities for the Renewal and Restoration of Design in India

  • Requirements for Renewal of Design in India
  1. A renewal or extension application for Copyright of Design must be filed before the expiry of the actual time period of ten years;
  2. The designs wing is required to finish the proceedings of extension or renewal of Copyright of Designs within one week from the receipt date of Form-3;
  3. The renewal or extension fact of Copyright in a registered Design is required to be entered in the Design Register;
  4. The extension or renewal Design must be published in the Journal of Patent Office by the Design Wing.
  • Restoration of Expired Design in India
  1. The registered owner or his/her legal representative can apply for the restoration;
  2. In the case, if two or more individuals hold the registered Design, then, with the Controller’s leave, one or more of these individuals without joining the other can apply for design restoration;
  3. In case the restoration application of expired Design is filed by any other individual claiming to be the registered design owner, then such an application must be accompanied by Form-11, for affecting a change or modification in name or ownership is affected as per provisions provided in the Design Act, 2000. Though, in a case where modification or change in name or ownership happened after the registered Design ceased to have an effect, then such a restoration application from the latter alleged owner of Design will not be diverted by the Design Wing;
  4. In case the registered Design’s owner fails to register an alternation or change of a name after or before the termination, he or she must apply for name alteration first in the Design Register. The restoration application of expired Design must proceed only after alteration or change in name has been affected in the Designs Register.
  1. The registered owner or his/her legal representative can apply for the restoration;
  2. In the case, if two or more individuals hold the registered Design, then, with the Controller’s leave, one or more of these individuals without joining the other can apply for design restoration;
  3. In case the restoration application of expired Design is filed by any other individual claiming to be the registered design owner, then such an application must be accompanied by Form-11, for affecting a change or modification in name or ownership is affected as per provisions provided in the Design Act, 2000. Though, in a case where modification or change in name or ownership happened after the registered Design ceased to have an effect, then such a restoration application from the latter alleged owner of Design will not be diverted by the Design Wing;
  4. In case the registered Design’s owner fails to register an alternation or change of a name after or before the termination, he or she must apply for name alteration first in the Design Register. The restoration application of expired Design must proceed only after alteration or change in name has been affected in the Designs Register.

Procedure or Process for Renewal and Restoration of Design in India

  • Procedure for Design Renewal
  1. The candidate is required to file an application for extension or renewal for Design with the Design Wing;
  2. The application for Design Renewal must be filed in Form-3 as prescribed under Rule 23 of the Design Rules, 2001;
  3. After receiving renewal application of Design, the Design Wing will check for the date on which the application is filed and will examine whether the candidate has filed the renewal application within the given time period or not;
  4. The Design Wing, when it is fulfilled that the renewal application is filed within the time limit, will examine the application of Design Renewal. The Design Wing must complete the proceedings for extension or renewal of Design within one week from the receipt date of the Form-3;
  5. After permitting the extension or renewal of Design, the Design Wing must enter in the Design Register the fact of extension or renewal of Design. The Design Wing must also publish the fact of renewal or extension of Design in the Patent Office Journal in India.
  • Procedure for Design Restoration
  1. The design restoration application must be filed with the Controller in For-4 as provided under Rule 24 of the Design Rules, 2001. The Design Restoration application must comprise a statement setting out the actual conditions that led to failure in fee payment for the Design Renewal;
  2. The Design restoration application must comprise the supporting evidence for the payment delay by the registered owner. The evidence must support the registered owners claim that the failure in payment was unintended and there has been no unnecessary delay in applying for Design Restoration from the part of the registered owner;
  3. The Controller may need some pieces of evidence in support of the statement made by the registered owner;
  4. Once the Controller is fulfilled that the failure in fee payment for renewal of Copyright of a registered Design was unintended and also there was no unnecessary delay in making the Design Restoration application by the registered owner, the Controller can give an order of restoration of Design Registration of an expired design;
  5. If the Controller is of the thinking that there is a prima facie case for not allowing the restoration application, the registered owner of the Design must be intimated accordingly. In such a case, the registered design owner may request the Controller for a hearing within one month from the receipt date of such intimation from the Controller. Unless the registered owner makes such a request for hearing, the restoration application of lapsed Design must be refused or rejected by the Controller;
  6. The registered owner if requests for hearing within the permitted period and the Controller, after such a hearing, is fulfilled that the payment failure for the renewal of Copyright of Design is unintended and there was no undue delay in the making the restoration application of expired Design, the restoration application of lapsed Design must be permitted by the Controller;
  7. The fact that an incorporated design is restored must be published in Official Journal by the Controller.

Conclusion

The renewal & restoration of Design in India is furnished for protecting the exclusive rights of the registered design owner. The owner is given a chance to save the rights connected with his or her Design and safeguard the Design from violation. The procedures of renewal and restoration of Design in India are provided in the Design Act, 2000 and Design Rules, 2001. The procedure of the renewal and restoration of Design in India is long-lasting & time-taking.

Read our article:Legal Structure of Registered Designs in India

Spread the love
Karan Singh

A legal writing enthusiast, a wanderer, and a zealous reader. After gaining a lot of knowledge about the diverse legal topics and developing research skills, Karan joined the league of legal content writers to deliver quality-rich blogs.

docsbizkit
 

Related Articles

Difference Between Copyright and Design in the Fashion Industry - An Overview
| Date: Sep 24, 2021 | Category: Copyright, Design

Difference Between Copyright and Design in the Fashion Industry – An Overview

In India, the Fashion industry has rapidly grown and has now become the most affected industry when it comes to seeking lawful protection against duplication and illegal use of the...

Read More
Cancellation of Design Registration
| Date: May 11, 2021 | Category: Design

A Complete Guide on the Cancellation of Design Registration

In India, the registered owner of a design is given special rights to their registered design. One such exclusive right is the cancellation of Design Registration. The registered owner or...

Read More
Assignment of Design Rights
| Date: Mar 01, 2022 | Category: Design

A Complete Analysis of Assignment of Design Rights

Industrial Designs are part of the appealing section, but they are also used as a blueprint for the production of handcrafted/industrial goods. The appealing part of a practical object that...

Read More

ARTICLES

Hi! My name is Akanksha! Let's talk.