Draft Designs(Amendment) 2019

The Designs Act, 2000, is introduced with an object to protect and safeguard the original design of an article with the aim to reward the innovator for research and labour applied by him for the purpose to originate or evolve such a new and original industrial design.These industrial designs of the innovator, subject to the articles are applied by particular industrial process or means.

The Department for the Promotion of Industry and Internal Trade, with the purpose to amend the Designs Rules, 2001, has introduced draft rules in the Gazette of India namely, the Draft Designs (Amendment) Rules, 2019. It has been published on 18th October, 2019, so as to make it available to the public, for the purpose of objections and suggestions. Section 47 of the Designs Act, 2000, empowers the Central Government to make rules, with respect to various matters that are provided in sub-section (2) of section 47 and the same is required to be published under sub-section (3) of Section 47 of the said Act.

Till date, various amendments have been made to the Designs Rules, 2001, in the year 2008, 2013 and 2014. The recent amendment is that of the year, 2019.The Designs (Amendment) Rules, 2019, brings about eight amendments to the Designs Rules, 2001, inclusive of Schedules.

The first draft rule in the Designs (Amendment) Rules, 2019, defines the name of this legislation itself. The second draft rule amends rule 2 of the Designs Rules, 2001, where definition of the “startup” is inserted as clause (eb) after the clause (ea). The Scheme for Facilitating Startup Intellectual Property Protection (SIPP) was in force up to 31st March, 2017, but then it has been extended for a period of three years from 1st April, 2017. This scheme was envisaged to facilitate protection to the innovative and interested startups, so they could sustain in this highly competitive world. For the purpose of application of SIPP, this amendment has been made, to protect and promote Intellectual Property Rights of startups and thus encourage innovation among them.The applicant startup under SIPP shall be recognised in terms of the notification GSR 180(E) published in the Part ii, Section 3, sub-section (i) of the Gazette of India dated 17.2.2016.[1]

The third draft rule in the Designs (Amendment) Rules, 2019, substitutes clause (e), in sub-rule (2) of Rule 5 of the Designs Rules, 2001. The clause (e) was insertedby the Designs (Amendment) Rules, 2014. The substitution in the said clause, widens the scope of the rule by adding words “natural person”, “startup” and “small entity” instead of the previous word “natural person”. As the new clause (e) is wide enough to define “small entity” as well, this amendment has deleted clause (f) of the same rule as it dealt with the same i.e. small entity. In addition to the above, the amendment also inserts an explanation after the clause (e) of sub-rule (2) of Rule 5.

The fourth draft rule, substitutes clause (1) of Rule 10 of the Designs Rules, 2001.The new rule lays down that the articles for the purpose of registration of design, shall be classified as per the current edition of “International Classification for Industrial Designs (Locarno Classification)” which is published by the World Intellectual Property Organization (WIPO). Prior to such amendment the article for the purpose of registration of the design were classified as it was specified in the Third Schedule. This amendment has caused the classification as according to the current edition i.e. the 12th edition of the Locarno Classification, which was entered into force on 1st January, 2019, it is an international classification used for the purpose of industrial designs.[2] All new designs now shall be classified as according to the above mentioned international classification.

The “FIRST SCHEDULE” of the Designs Rules, 2001, which sets out the fees which is payable according to the prescription in the Designs Act, 2000, is substituted. The amendment in the fees has been made so as to be in accordance with the newly introduced provision for startup and small entity, which is differentiated on the basis of payment made by natural persons and persons other than natural persons.

In the “SECOND SCHEDULE” of the Designs (Amendment) Rules, 2019, minor changes is suggested to be made in Form No.1, so that applicant will have the option to choose between natural person, start up, small entity and other. Form 24 was first introduced by Designs (Amendment) Rules, 2014. To claim the status as a small entity or start up, new Form 24 is introduced in the above-mentioned amendment of 2019.

The “THIRD SCHEDULE” of the Design’s Rules, 2001, stated “Classification of Good”, but as according to the 2019 amendment to the clause (1) of Rule 10, the “International classification for the industrial design (Locarno Classification)” shall be adopted for classification, this schedule stands “[Omitted]”.

The “FOURTH SCHEDULE” of the Designs Rules, 2001, which sets out scale of costs allowable in proceedings before the Controller, shall be substituted and the cost shall be levied considering newly introduced startup and small entity and differentiation in the cost would be levied on the basis of such natural persons and persons other than natural person.

Conclusion

From above we conclude that, this amendment has widened the scope of Designs Rules, 2001, from just a natural person, to the startup and small entity, so as to promote and protect Intellectual Property Rights among them. Also, as the classification of the goods now is to be made based on the International classification, which would encourage foreign entities in India to promote Intellectual Property Rights on a uniform ground, without any misleading or confusion. The Schedules have been amended accordingly, so as to move parallel with the changes made in the other draft rules. This amendment will encourage IPR at global level with respect to the industrial designs that shall be promoted among the upcoming and growing startups and other small entities.

Author:  Karan Rampure, 5th year-BBA LL.B from Symbiosis Law School, Hyderabad, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at niharika@khuranaandkhurana.com

References:

[1]http://www.ipindia.nic.in/writereaddata/Portal/News/323_1_Scheme_for_facilitating_start-ups.pdf

[2]https://www.wipo.int/classifications/locarno/en/

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