Difference between designs act, 2000, copyright act, 1957, and trademark act, 1999?

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Defining the meaning of design under the various acts. 

The designs act, 2000, defines the design under section 2(d) of the Act, where design means only features of configuration, shape, ornament, pattern or composition of lines or colors applied to any articles by industrial means or process; that in the finished article appeal to and are judged only by the eye.

The copyright act, 1957, includes design under the artistic work in section 2(c)(i), consisting of a sculpture, a painting, an engraving, a drawing, or a photograph, irrespective of the work’s aesthetic or artistic quality. The artistic work term also includes any other work of artistic, craftmanship or a work of architecture.

The trademark act, 1999, safeguards designs and collections of designers through trademark registration. It refers to the visual appearance of the product, including its shape, combination of colours and packaging. It hence safeguards the product as a whole and helps customers to compare and differentiate it from others. Though the Act does not categorically mention trade dress, section 2(zb) of the Act includes within itself the shapes of goods, packaging and combination of colours. Hence, it can be deduced that trade dress is recognised within the definition itself.

Registering design under the designs act, 2000.

Designs that cannot be registered under the Act.

As per section 4 of the Act, which contains conditions that is present in a design, disqualifies it from being registered as given below;

– If it is not a new or original design.

– If it cannot be differentiated from other known designs.

– If it has been revealed to the public anywhere in India via publication in tangible form/by use/in any other way, before the date of submission of such design.

– If it contains anything scandalous or obscene in nature.

Protection under the Act.

An owner who registers his/her design under this Act is entitled to copyright protection in design for a decade from the day the design is registered. The same goes under section 11 as well.

Afterward, the copyright period can be extended for another five years through application to the controller of designs before the expiry of the ten years as mentioned above; in a stated manner and upon payment of a fee.

Is registration compulsory under the Act?

Protection under the Act is offered only to designs that are registered. Section 11 of the Act mentioned that in the event the design is registered, the registered owner of the design has to be entitled to copyright protection for a decade. Hence, it means that registration of a design under the Act is compulsory and is required to seek protection.

Registering design under the copyright act, 1957.

Designs that can be registered under the Act.

A creation or design of designers that is an original artistic work under the scope of the copyright act, 1957 can be registered.

Also, a design that has the potential of being registered under the designs act, 2000 but is not so registered under the said Act can be protected under the copyright act, 1954.

If a designer intends to register his/her design (capable of being registered under designs act, 2000) under the copyright act, 1957, rule 70(7) of copyright rules, 2013, orders submission of an affidavit stating that;

– The design has not been registered or is not in the process of registration under the designs act, 2000.

– The work has not been replicated more than fifty times.

Protection under the Act.

– If a fashion design is registered as an original artistic work underact, copyright act in design survives for the lifetime of creator and 60 years after creator’s demise as stated under section 22.

– If a design has the potential of being registered as a design under the designs act, 2000 but is not in the process of registration, the design can be protected under the copyright act, 1957. 

Such copyright protection in modern business survives till the 50th replication of the article. The same has been given under section 15 of the copyright act.

Is registration compulsory under the copyright act?

No, it is not mandatory under the copyright act, unlike the designs act,2000 wherein the protection is provided to design only when it is registered under the Act.

Registering design under the trademark act, 1999.

 A fashion design can be safeguarded under the trademark act as a trade dress. Though not particularly stated in the Act, section 2(zb) identifies the concept by including within itself shapes of goods, packaging and a combination of colours.

Characteristics of a trade dress.

The size, shape, texture, colour of a product are the fundamental traits of a trade dress. The sui generis packaging of the product is also considered as a trait of trade dress. The colour scheme of the product also offers it a distinct identity.

The size, shape, texture, colour of a product are the fundamental traits of a trade dress. The sui generis packaging of the product is also considered as a trait of trade dress. The colour scheme of the product also offers it a distinct identity.

Hence, a trade dress can be considered a customer’s prospect because the features such as colour scheme, shape, and look of fashion design are identified by customers easily.

Requirements to register trade dress.

– Product has to be graphically presented.

– Product has to be unique in character in juxtaposition.

– Trade dress has to be in printed form.

Protection to trade dress under the Act.

Judiciary has given the protection to it via common law called passing off. It is made on the principle that a man might not sell his/her own goods under the pretence that they are the goods of another man.

Two things that are crucial to protect trade dress are reputation and goodwill. Brand or designer is needed to prove that;

– Works and trademarks have obtained reputation and goodwill.

– Public associates the works with the person who holds the rights of it.

Is registration compulsory under the Act for trade dress?

It is not mandatory under the Act for trade dress to pass off action.

In conclusion.

Considering all the Acts mentioned above, now you would be able to make the wise decision while deciding which Act you should protect your design in India.