Prior Publication of Industrial Design In India

Introduction

The procedure of Publication of Industrial Design in India begins after the registration of an industrial design. After registration, the design is published in the Patent Office Journal. After publication, the design is open to the public for inspection. However, the design must not be published in India or any other country before the date of registration. This would lead to cancellation of registration of such design.

Prior publication 

As per section 19 of the Designs Act,2000 

Any person interested may present a petition for cancellation of registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely-

a) that the design has been previously registered in India or

b) has been published in India or any other country before the date of its registration

As per section 4,  Prohibited of registration of certain designs- A design which: 

a) is not new or original or

b) has been disclosed to the public anywhere in India or any other country by publication in tangible form.

As per section 28, where a design application has been refused or abandoned, the application and any drawings, photographs, tracing or specimens left in connection with the application shall not at any time be open to public inspection or be published.

Prior Publication of industrial design

Prior Publication can occur in two types

1) publication in a prior document- publication of prior document would occur when the Design has already been published in a document and such document is easily available.

2) publication by prior use- for example, if a fashion designer before putting the design in a paper exhibits the design in a fashion show where the clothes with such design have been put to a sale then, such case will amount to publication by prior use.

For prior publication, it is essential that before the registration of such design, it is made available to the public it is capable of being judged by visual appearance or the eye of the mind. Unless and until there are absolute clarity and understanding to the eye of mind or the naked eye of the foreign design as found in public records of the Register of design, cannot be said that such public record will amount to prior publication. This means that just the mere existence of a design in the record of Registrar of Design in a convention country does not amount to Publication in all cases.

Prior Publication is itself a big issue in the Design Industry. Registration of design is extremely necessary to avail various benefits and prevent frauds.

Exception 

In some cases, the prior publication is acceptable. Exhibition of any design prior registration is possible if prior notice of such exhibition has been given to the Controller of Patents and Designs and application of registration of such exhibited Design has been made within six months from the date of such exhibition or publication of design

The Designs Act, 2000 provide the form for an exhibition of unregistered design. It is available in Form no. 9. An individual interested in the exhibition of unregistered Design has to fill up the form and pay the amount as may be prescribed. 

To constitute prior publication of a design it is enough to make it available public prior to its registration or to some person who is not bound to keep it secret.