86540
Lawyers Network
103860
Users
630
Cities Serving
114
Law Schools Network
59824
DESIGNS ACT, 1911
2 of 1911
An Act to amend the law relating to the protection of Designs. Whereas it is expedient to amend the law relating to the protection of designs; it is hereby enacted as follows :-
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT.
(1) This Act may be called the Designs Act, 1911.
(2) It extends to the whole of India.
(3) It shall come into force on the first day of January, 1912.
SECTION 02: DEFINITIONS.
In this Act, unless there is anything repugnant in the subject or context:-
(1) **
(2) "article" means any article of manufacture and any substance, artificial or natural, or partly artificial and partly natural;
(3) "Controller" means the Controller General of Patents, Designs and Trade Marks appointed under sub-section (1) ofsection 4 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) -;
(4) "copyright" means the exclusive right to apply a design to any article in any class in which the design is registered ;
(5) "design" means only the features of shape, configuration, pattern or ornament applied to any article 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) ofsection 2 of the Trade and Merchandise Marks Act, 1958-, or property mark as defined insection 479 of the Indian Penal Code (45 of 1860)-;
(6)**
(7) "High Court" means-
(a) in relation to a State, the High Court for that State ;
(b) in relation to the Union Territory of Delhi or Himachal Pradesh the High Court of Punjab ;
(c) in relation to the Union Territory of Manipur or Tripura, the High Court of Assam;
(d) in relation to the Union Territory of the Andaman and Nicobar Islands, the High Court at Calcutta ; and
(e) in relation to the Union Territory of the Laccadive, Minicoy and Amindivi Islands, the High Court of Kerala;
(f) in relation to the Union Territories of Dadra and Nagar Haveli and Goa, Daman and Diu, the High Court at Bombay;
(g) in relation to the Union Territory of Pondicherry, the High Court at Madras.
(8)**
(9) "legal representative" means a person who in law represents the estate of a deceased person;
(10)**
(11)**
(12) "patent office" means the patent office referred to insection 74 of the Patents Act, 1970-;
(13) "prescribed" includes prescribed by rules under this Act; and
(14) "proprietor of a new or original design", -
(a) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed ; and
(b) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and
(c) in any other case, means the author of the design; and where the property in, or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.
SECTION 02A: 2A-42.
OMMITTED
SECTION 43: APPLICATION FOR REGISTRATION OF DESIGNS.
(1) The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in India, register the design under this Part.
(2) The application must be made in the prescribed form and must be left at the Patent Office in the prescribed manner and must be accompanied by the prescribed fee.
(3) The same design may be registered in more than one class, and, in case of doubt as to the class in which a design ought to be registered, the Controller may decide the question.
(4) The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person aggrieved by any such refusal may appeal to the Central Government.
(5) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within the prescribed time shall be deemed to be abandoned.
(6) A design when registered shall he registered as of the date of the application for registration.
SECTION 44: REGISTRATION OF DESIGNS IN NEW CLASSES.
Where a design has been registered in one or more classes of goods, the application of the proprietor of the design to register it in some one or more other classes shall not be refused, nor shall the registration thereof be invalidated-
(a) on the ground of the design not being a new or original design, by reason only that it was so previously registered; or
(b) on the ground of the design having been previously published in India, by reason only that it has been applied to goods of any class in which it was so previously registered: Provided that such subsequent registration shall not extend the period of copyright in the design beyond that arising from previous registration.
SECTION 45: CERTIFICATE OF REGISTRATION.
(1) The Controller shall grant a certificate or registration to the proprietor of the design when registered.
(2) The Controller may, in case of loss of the original certificate, or in any other case in which he deems it expedient, furnish one or more copies of the certificate.
SECTION 46: REGISTER OF DESIGNS.
(1) There shall be kept at the Patent Office a book called the Register of Designs, wherein shall be entered the names and addresses of proprietors of registered designs, notifications of assignments and of transmissions of registered designs, and such other matters as may be prescribed.
(2) The register of designs existing at the commencement of this Act shall be incorporated with and form part of the register of designs under this Act.
(3) The register of designs shall be prima fade evidence of any matters by this Act directed or authorized to be entered therein.
SECTION 47: COPYRIGHT ON REGISTRATION.
(1) When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during five years from the date of registration.
(2) If before the expiration of the said five years application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall, on payment of the prescribed fee, extend the period of copyright for a second period of five years from the expiration of the original period of five years.
(3) If before the expiration of such second period of five years application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller may, subject to any rules under this Act, on payment of the prescribed fee, extend the period of copyright for a third period of five years from the expiration of the second period of five years.
SECTION 48: REQUIREMENTS BEFORE DELIVERY ON SALE.
(1) Before delivery on sale of any articles to which a registered design has been applied, the proprietor shall-
(a) (if exact representations or specimens were not furnished on the applica- tion for registration), furnish to the Controller the prescribed number of exact representations or specimens of the design; and, if he fails to do so, the Controller may erase his name from the register, and thereupon the copyright in the design shall cease; and
(b) cause each such article to be marked with the prescribed mark, or with the prescribed words or figures, denoting that the design is registered ;and, if he fails to do so, the proprietor shall not been titled to recover any penalty or damages in respect of any infringement of his copyright in the design unless he shows that he took all proper steps to ensure the marking of the article, or unless he shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.
(2) Where a representation is made to the Central Government by or on behalf of any trade or industry that in the interests of the trade or industry it is expedient to dispense with or modify as regards any class or description of articles any of the requirements of this section as to marking, the Central Government may, if it thinks fit, by rule under this Act, dispense with or modify such requirements as regards any such class or description of articles to such extent and subject to such conditions as it thinks fit.
SECTION 49: EFFECT OF DISCLOSURE ON COPYRIGHT
The disclosure of a design by the proprietor to any other person, in such circumstances as would make it contrary to good faith for that other person to use or publish the design, and the disclosure of a design in breach of good faith by any person other than the proprietor of the design, and the acceptance of a first and confidential order for goods bearing a new or original textile design intended for registration, shall not be deemed to be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.
SECTION 50: INSPECTION OF REGISTERED DESIGNS.
(1) During the existence of copyright in a design, or such shorter period not being less than two years from the registration of the design as may be prescribed, the design shall not be open to inspection except by the proprietor or a person authorised in writing by him, or a person authorized by the Controller or by the Court and furnishing such information as may enable the Controller to identify the design, and shall not be open to the inspection of any person except in the presence of the Controller, or of an officer acting under him, and on payment of the prescribed fee; and the person making the inspection shall not be entitled to take any copy of the design, or of any part thereof : Provided that, where registration of a design is refused on the ground of identity with a design already registered, the applicant for registration shall be entitled to inspect the design so registered.
(2) After the expiration of the copyright in a design, or such shorter period as aforesaid, the design shall be open to inspection, and copies thereof may be taken by any person on payment of the prescribed fee.
(3) Different period may be prescribed under this section for different classes of goods.
SECTION 51: INFORMATION AS TO EXISTENCE OF COPYRIGHT.
On the request of any person furnishing such information as may enable the Controller to identify the design, and on payment of the prescribed fee, the Controller shall inform such person whether the registration still exists in respect of the design, and, if so, in respect of what classes of goods, and shall state the date of registration, and the name 'and address of the registered proprietor.
SECTION 51A: CANCELLATION OF REGISTRATION
(1) Any person interested may present a petition for the cancellation of the registration of a design-
(a) at any time after the registration of the design, to the High Court on any of the following grounds, namely:-
(i) that the design has been previously registered in India; or
(ii) that it has been published in India prior to the date of registration ; or
(iii) that the design is not a new or original design ; or
(b) within one year from the date of the registration, to the Controller on either of the grounds specified in sub - clauses (i) and'(ii) of clause (a).
(2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred.
SECTION 51B: DESIGNS TO BIND GOVERNMENT
A registered design shall have to all intents the like effect as against Government as it has against any person and the provisions of Chapter XVII of the Patents Act, 1970-, shall apply to registered designs as they apply to patents.
SECTION 52: PROVISIONS AS TO EXHIBITIONS.
The exhibition of a design, or of any article to which a design is applied, at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette, or the publication of a description of the design, during the period of the holding of the exhibition, or the exhibition of the design or the article or the publication of a description of the design, by any person elsewhere during or after the period of the holding of the exhibition, without the privity or consent of the proprietor, shall not prevent the design from being registered or invalidate the registration thereof: Provided that-
(a) the exhibitor exhibiting the design or article, or publishing a description of the design, gives to the Controller previous notice in the prescribed form; and
(b) the application for registration is made within six months from the date of first exhibiting the design or article or publishing a description of the design.
SECTION 53: PIRACY OF REGISTERED DESIGN.
(1) During the existence of copyright in any design it shall not be lawful for any person-
(a) for the purpose of sale to apply or cause to be applied to any article in any class of goods in which the design is registered the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied ; or
(aa) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(b) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of goods in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.
(2) If any person acts in contravention of this section, he shall be liable for every contravention--
(a) to pay to the registered proprietor of the design a sum not exceeding five hundred rupees recoverable as a contract debt, or
(b) if the proprietor elects to bring a suit for the recovery of damages for anyb such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed one thousand rupees.
(3) When the Court makes a decree in a suit under sub-section (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.
SECTION 54: APPLICATION OF CERTAIN PROVISIONS OF THE ACT AS TO PATENTS TO DESIGNS.
The provisions of Patents Act, 1970-with regard to certificates of the validity of a patent, and to the remedy in case of groundless threats of legal proceedings by a patentee shall apply in the case of registered designs in like manner as they apply in the case of patents, with the substitution of references to the copyright in a design for references to a patent, and of references to the proprietor of a design for references to the patentee, and of references to the designs for references to the invention.
SECTION 57: FEES.
(1) There shall be paid in respect of the registration of designs and applications therefor and in respect of other matters relating to designs under this Act such fees as may be prescribed by the Central Government.
(2) A proceeding in respect of which a fee is payable under this Act or the rules made thereunder shall be of no effect unless the fee has been paid.
SECTION 58: NOTICE OF TRUST NOT TO BE ENTERED IN REGISTERS.
There shall not be entered in any register kept under this Act, or be receivable by the Controller, any notice of any trust, expressed, implied or constructive.
SECTION 59: INSPECTION OF AND EXTRACTS FROM REGISTERS.
Every register kept under this Act shall at all convenient times be open to the inspection of the public, subject to the provisions of this Act; and certified copies, sealed with the seal of the Patent Office, of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee.
SECTION 60: PRIVILEGE OF REPORTS OF CONTROLLER.
Reports of or to the Controller made under this Act shall not in any case be published or be open to public inspection.
SECTION 61: PROHIBITION OF PUBLICATION OF DRAWINGS, ETC., WHERE APPLICATION ABANDONED,ETC.
Where an application for a design has been abandoned or refused, the application and any drawings, photographs, tracings, representations or specimens left in connection with the application shall not at any time be open to public inspection or be published by the Controller.
SECTION 62: POWER OF CONTROLLER TO CORRECT CLERICAL ERRORS
The Controller may, on request in writing accompanied by the prescribed fee, correct any clerical error in the representation of a design or in the name or address of the proprietor of any design or in any other matter which is entered upon the register of designs.
SECTION 63: ENTRY OF ASSIGNMENTS AND TRANSMISSIONS IN REGISTERS.
(1) Where a person becomes entitled by assignment, transmission or other operation of law to the copyright in a registered design, he may make application to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, register him as the proprietor of such design, and shall cause an entry to be made in the prescribed manner in the register of the assignment, transmission or other instrument affecting the title.
(2) Where any person becomes entitled as mortgagee, licensee or otherwise to any interest in a registered design, he may make application to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, cause notice or the interest to be entered in the prescribed manner in the register of designs with particulars of the instrument, if any, creating such interest.
(3) The person registered as the proprietor of a design shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with, the design and to give effectual receipts for any consideration for any such assignment, licence or dealing : Provided that any equities in respect of the design may be enforced in like manner as in respect of any other movable property.
(4) Except in the case of an application made under section 64-, a document or instrument in respect, of which no entry has been made in the register in accordance with the provisions of subsections (1) and (2) shall not be admitted in evidence in any Court in proof of the title to copyright in a design or to any interest therein, unless the Court, for reasons to be recorded in writing, otherwise directs.
SECTION 64: RECTIFICATION OF REGISTER.
(1) The Controller may, on the application in the prescribed manner of any person aggrieved by the non-insertion in or omission from the register of designs of any entry, or by any entry made in such register without sufficient cause, or by any entry wrongly remaining on such register, or by an error or defect in any entry in such register, make such order for making, expunging or varying such entry as he thinks fit and rectify the register accordingly.
(2) The Controller may in any proceeding under this section decide any question that it may be necessary or expedient to decide in connection with the rectification of a register.
(3) An appeal shall lie to the High Court from any order of the Controller under this section; and the Controller may refer any application under this section to the High Court for decision, and the High Court shall dispose of any application so referred.
(4) Any order of the Court rectifying a register shall direct that notice of the rectification be served on the Controller in the prescribed manner, who shall upon the receipt of such notice rectify the register accordingly.
(5) Nothing in this section shall be deemed to empower the Controller-
(a) **
(b) to make any such order cancelling the registration of a design as is provided for in section 51 A-.
SECTION 65: POWERS OF CONTROLLER IN PROCEEDINGS UNDER ACT.
Subject to any rules in this behalf, the Controller in any proceedings before him under this Act shall have the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents, issuing commissions for the examining of witnesses and awarding costs and such award shall be executable in any Court having jurisdiction as if it were a decree of that Court.
SECTION 66: PUBLICATION OF PATENTED INVENTIONS.
[Repealed by the Patents Act, 1970.]
SECTION 67: EXERCISE OF DISCRETIONARY POWER BY CONTROLLER.
Where any discretionary power is by or under this Act given to the Controller, he shall not exercise that power adversely to the applicant for registration of a design, without (if so required within the prescribed time by the applicant) giving the applicant an opportunity of being heard.
SECTION 68: POWER OF CONTROLLER TO TAKE DIRECTIONS OF THE CENTRAL GOVERNMENT.
The Controller may, in any case of doubt, or difficulty arising in the administration of any of the provisions of this Act, apply to the Central Government for directions in the matter.
SECTION 69: REFUSAL TO GRANT PATENT, ETC., IN CERTAIN CASES.
(1) The Controller may refuse to register a design, of which the use would, in his opinion, be contrary to law or morality.
(2) An appeal shall lie to the Central Government from an order of the Controller under this section.
SECTION 70: APPEALS TO THE CENTRAL GOVERNMENT.
(1) Where an appeal is declared by this Act to lie from the Controller to the Central Government, the appeal shall be made within three months of the date of the order passed by the Controller, and shall be in writing, and accompanied by the prescribed fee.
(2) In calculating the said period of three months the time (if any) occupied in granting a copy of the order appealed against shall be excluded.
(3) The Central Government may, if it thinks fit, obtain the assistance of an expert in deciding such appeals, and the decision of the Central Government shall be final.
SECTION 70A: EVIDENCE BEFORE THE CONTROLLER
Subject to any rules made under section 77-, in any proceeding under this Act before the Controller, the evidence shall be given by affidavit, in the absence of directions by the Controller to the contrary; but in any casein which the Controller thinks it right so to do he may take evidence viva voce in lieu of or in addition to evidence by affidavit or may allow any party to be cross examined on the contents of his affidavit.
SECTION 71: CERTIFICATE OF CONTROLLER TO BE EVIDENCE.
A certificate purporting to be under the hand of the Controller as to any entry, matter or thing which he is authorize by this Act, or any rules made thereunder, to make or do, shall be prima fade evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone.
SECTION 71A: EVIDENCE OF DOCUMENTS IN PATENT OFFICE
Printed or written copies or extracts, purporting to be certified by the Controller and sealed with the seal of the Patent Office, of documents in the Patent Office, and of or from registers and other books kept there, shall be admitted in evidence in all Courts in India, and in all proceedings, without further proof or production of the originals : Provided that a Court may, if it has reason to doubt the accuracy or authenticity of the copies tendered in evidence, require the production of the originals or such further proof as it considers necessary.
SECTION 72: TRANSMISSION OF COPIES OF SPECIFICATION, ETC., AND INSPECTION THEREOF.
[Repealed by the Patents Act, 1970.]
SECTION 73: APPLICATIONS AND NOTICES BY POST.
Any application, notice or other document authorized or required to be left, made or given at the Patent Office or to the Controller, or to any other person under this Act, may be sent by post.
SECTION 74: DECLARATION BY INFANT, LUNATIC, ETC.
(1) If any person is, by reason of infancy, lunacy or other disability, incapable of making any statement or doing anything required or permit- ted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or, if there be none, any person appointed by any Court possessing jurisdiction in respect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability.
(2) An appointment may be made by the Court for the purposes of this section upon the petition of any person acting on behalf of the person subject to the disability or of any other person interested in the making of the statement or the doing of the thing.
SECTION 75: SUBSCRIPTION AND VERIFICATION OF CERTAIN DOCUMENTS
[Repealed by the Patents Act, 1970.]
SECTION 76: AGENCY.
(1) All applications and communications to the Controller under this Act may be signed by, and all attendances upon the Controller may be made by or through a legal practitioner or by or through an agent authorised to the satisfaction of the Controller.
(2) The Controller may, if he sees fit, require-
(a) any such agent to be resident in India ;
(b) any person not residing in India to employ an agent residing in India ;
(c) the personal signature or presence of any applicant
86540
103860
630
114
59824