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    NOVELTY OF A DESIGN IN INDIA

    Essential factors of Novelty and Originality required for Design Registration with the Indian Patent Office.

    As per the Section 4 of Indian Designs Act, a design is capable of being registered only if it is novel (new) or original.
    A design is considered to be new (novel), if it has not been anticipated by publication any where in the world or used in any country, prior claimed in an application for design in India or elsewhere before the date of filing of application or date of priority, that is, design does not form the part of public domain or state of the art.

    Further a design should be significantly distinguishable from known designs or combination of known designs.

    It is pertinent to note that as per Section 16 of Indian Designs Act, disclosure of a design shall not be deemed to be publication of design, in the following circumstances:

    i. Before registration if proprietor discloses the design to any other person, in such circumstances as would make it contrary to good faith for that other person to disclose the design. However, that other person discloses the design in breach of good faith.
    ii. Acceptance of first and confidential order, before registration, for articles bearing a new or original textile design intended for registration.

    Further Section 21 of the Indian Designs Act states the provisions as to exhibition under which design is not invalidated or prevented from registration:

    i. if a design or an article to which a design is applied has been exhibited in an exhibition to which the provisions of Section 21 of the Designs Act, 2000 have been extended by the Central Government by notification in the official gazette; or
    ii. if a description of the design is published, during or after the period of holding of such exhibition; or
    iii. if any person exhibits the design or the article to which the design is applied or publishes a description of the design during or after the exhibition, without seeking any consent of the proprietor.

    In order to avail the benefit of the aforesaid provisions the proprietor has to give a notice in Form-9 to the Controller before exhibiting the design, and consequently file the application for registration of design within a period of six months from the date of first exhibiting the design or publishing the description.

    Originality

    As per section 2 (g) of the Indian Designs Act a design is considered to be original if originating from the author of design, and includes the cases which though old in themselves yet are new in their application.

    Relevant Case laws:
    Reckitt Benkiser India Ltd. vs. Wyeth Ltd. – Delhi High Court interprets “publication” in design
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