Piracy in Industrial Designs and Remedies Available

Overview

Piracy of Registered design is when someone copies or uses design without your permission or authorization of the owner of that design. The registered owner of the design can in case of the infringement or piracy in registered design can opt for the remedial solution given by the Design act.

Design misuse and infringement

Section 22 of the Designs Act,2000 talks about the piracy in registered design:

According to sec 22 of the Act it will be unlawful if any person during the existence of the copyright in the design does any of the following:

• For the purpose of sale, apply the design or any fraudulent or obvious imitation to an article that falls within in any class of articles in which the design is registered.

• Import for the purpose of sale 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.

• Publish or expose or cause to be published or exposed any article knowing that the design or any fraudulent or obvious imitation has been applied to any article.

• There should not be the consent of the owner of the design.

Remedies

Section 22(2) provides for the remedies that can be obtained in case of the piracy in design they are as follows:

Two remedies are available against the person who has infringe the copyright in the registered design:

• Section 22(2)(a) provides that if a person does any act which will considered as piracy, then he shall be liable to pay rupees 25,000 and the fine shall not exceed 50,000 in any scenario.

• Section 22(2)(b) provides that the owner may file a suit for the recovery of damages for any such contravention in addition to an injunction for any repetition of such act. The court can grant such additional compensation s it may deem fit according to the case.

In the case of Cello Household Products v. Modware India the supreme court has held that the product is to be seen as a whole and from the point of view of the consumer.

Cancellation of a registered design

Section 19 of the act talks about cancellation of the registered design that any person who wants can present a petition to the controller of the design for the cancellation on the following grounds:

1. The design has been already registered in India.
2. It is already being published in India or in any other country before the date of registration.
3. It is not new and is not original.
4. It is not capable of registration under this act.
5. It does not fall in the definition of design under the section 2(d) of the act.

Power of controller of design

The controller of the design of according to section 32 of the Act a controller of design has the power of a civil court.

1. Take note on evidence
2. Administer oath
3. Keep eye on witnesses
4. Awarding cost
5. Keep a check on publication

According to section 33 if any discretionary power is being given to the controller, he shall not exercise it adversely on any applicant.

• According to section 34 the controller may take help of the central government if he wants at any point to issue directions.
• According to section 35 the controller may on reasonable grounds if he thinks so refuse to grant the protection of design of any applicant and may refuse any application.
• The applicant may appeal to the High court directly if he is not happy with the decision of the controller.