Drafting a design application is an important step in the process of registering a design in India. Here are some key points to consider when drafting a design application:
- Applicant Details: Begin the application by providing the complete details of the applicant, including the name, address, and nationality. If the applicant is a company or organization, include the legal entity information.
- Title of the Design: Give a concise and descriptive title to the design that accurately represents its visual appearance and purpose.
- Representation of the Design: Include clear and accurate representations of the design. These can be drawings, photographs, or computer-generated images. Ensure that the representations clearly depict the unique features, shape, configuration, pattern, ornamentation, or composition of lines or colors that constitute the design.
- Description of the Design: Provide a brief written description of the design, highlighting its distinctive elements and characteristics. This description should complement the representations and help in understanding the unique aspects of the design.
- Classification: Classify the design according to the Locarno Classification system, which categorizes designs into various classes based on their functionality or purpose. Select the appropriate class or classes to which the design belongs.
- Statement of Novelty: Include a statement of novelty that asserts the uniqueness and originality of the design. Explain how the design is different from existing designs and how it possesses its own distinctiveness.
- Prior Public Disclosure: Declare whether the design has been published, publicly displayed, or disclosed anywhere in India or abroad before the filing date of the application. If there has been any disclosure, provide the details of such disclosures.
- Power of Attorney: If the application is being filed by an attorney or legal representative, attach a power of attorney document authorizing them to act on behalf of the applicant.
- Signature: The application should be signed by the applicant or their authorized representative. In case of multiple applicants, each applicant should sign the application.
- Supporting Documents: If there are any supporting documents or evidence that strengthen the uniqueness or distinctiveness of the design, such as prior artwork, market research, or expert opinions, include them as annexures to the application.
Once a design application is filed in India, it undergoes an examination process by the Design Wing of the Intellectual Property Office. Here are the key points to understand about the examination of a design application:
- Formal Examination: The first step in the examination process is the formal examination of the application. The Design Wing reviews the application to ensure that it meets all the formal requirements and includes all the necessary documents and fees. If any deficiencies are found, the applicant may be given an opportunity to correct them within a specified time period.
- Novelty and Originality: The design application is examined to determine its novelty and originality. The examiner will compare the design with existing designs available in public records, databases, and previous registrations to assess whether the design is new and distinctive. If the design is found to lack novelty or is similar to existing designs, objections may be raised.
- Examination Report: If any discrepancies or objections are identified during the examination, the examiner will issue an Examination Report. The report outlines the objections raised, cites relevant prior designs, and provides an opportunity for the applicant to respond and provide clarifications or arguments.
- Response to Examination Report: Upon receiving the Examination Report, the applicant must carefully review the objections raised and prepare a suitable response. The response should address each objection with appropriate arguments, evidence, or amendments to overcome the objections and establish the registrability of the design.
- Amendments or Modifications: In some cases, the applicant may need to make amendments or modifications to the design application in response to the objections raised. These amendments should be made within the framework of the original disclosure and should not expand the scope of the design beyond what was originally filed.
- Hearings: If the examiner maintains objections even after the applicant's response, a hearing may be requested. During the hearing, the applicant can present their arguments and provide additional evidence or explanations to support the registrability of the design.
- Registration or Refusal: If the examiner is satisfied with the response and finds the design eligible for registration, the application proceeds to registration. A design registration certificate will be issued to the applicant. However, if the examiner is not convinced or if the objections are not adequately addressed, the application may be refused, and the applicant may be given an opportunity to further amend or argue their case.