The subject-matter of the protection of the industrial design is not articles but rather the design that is applied to or embodied in such articles.

For the qualification of protection, a design must be: new or original, not been published in India or any other country, appealing to the eyes.

1. New or original: The word new means a design that is completely new in the sense that it is invented or created for the first time. The word contemplates that the person has originated something by the exercise of intellectual activity that had not occurred to anyone before. It involves the idea of novelty either in the pattern, shape, or ornament itself or in the way in which an old pattern or shape is to be applied to an article.

In Bharat Glass Tube Limited v. Gopal Glass Works Ltd. (2008), the Supreme Court held that a design in the abstract cannot be registered. It is to be registered concerning some article. Even an addition or minute alteration in the design of a well-recognized shape of an article of common use in the market cannot make it a new design or original in design. Thus, for registration in India, the design must fulfill both the criteria of novelty and originality. 

2. Publication: Within the meaning of the Act publication means the opposite of being kept secret. There is publication if the design is disclosed to the public or the public has been put in the possession of the design. Publication may be of two types:

(a) Publication in prior documents.

(b) Publication in prior use.

The publication is sufficient if made to a single person. The scope of prior publication has no territorial limitations. The design should not be disclosed to the public anywhere in India or in any other country by publication otherwise it will have the effect of invalidating a design. Publication of design before an application for registration renders the design unregistrable and consequently un-protectable.

In Gunston v. Winox Ltd., it was held that showing off a design to a prospective customer to obtain an order constitutes publication thereof.

In Joginder Singh v. Tebu Enterprises Ltd. (1989), the court held that if the goods are imported from abroad and the importer is using them without disclosing it to anyone else, also there is no publication of design imported if the goods of such design are not freely available in India. But, if the goods imported are used in the full view of the general public, the design of such goods is regarded as published in India and would not be regarded as an original or new design.

3. Appeals to the eye: the features of the design in the finished article should be appealing to the eyes and be able to judge solely by the eyes. Only the designs that are of aesthetic nature are accorded protection by the law. Even a decorative element added to an article constitutes a design. If the shape is not appealing to the eyes but solely to make the article work then it is excluded from statutory protection. Eye appeal is the most important requirement of a design, however, as decided in Kestos v. Kempat Ltd. & Kemp(1936) and Amp. Inc v. Utilux Proprietary ltd. (1972), if a designer only thought of practical efficiency, actually produces a design that does appeal to the eye, he would not be denied protection as that was not his object when he composed the design. The main criteria for comparing design are a visual comparison of the physical dimensions of two products. The eye to which appeal is made and the eye which is to judge is the eye of the customer.

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, White Code Legal and Tax shall not be responsible for any errors caused due to human error or otherwise.