Novelty and Originality under the Designs Act, 2000

The law protecting designs was earlier governed by the Designs Act 1911 and have now been replaced by the Designs Act 2000 which has been brought into force with having its effect from 11th May 2001.

Novelty and Originality

Design to be registrable under the act must be both new and original and should not be previously published in India or anywhere elsewhere. Natural objects applied as the design may be novel or original. For example, the representation design of a tree or a building on glass may be considered new or original. In such a case the novelty consists in the application of a drawing or design taken from any material source to an article. The words new or original involve the idea of novelty either in the pattern, shape, or ornament itself or in any way in which an old pattern shape or article is to be applied to some of the special subject matter. For example, A paperweight in the shape of a vehicle may be new and original. To be registerable, the design should be substantially different from that of the pre-existing designs already applied to the class of article. And the factors that amount to a substantial difference must directly depend upon the particular facts of each case. The word “Original” usually means the design originating from the author of the design, as provided under section 2(g) of the Designs Act 2000.

The novelty or Originality of a specific part of the article must be sufficient to impart the character of novelty and originality to the whole of that article. A combination of known designs should also be considered novel if the appearance of the combination is new as a whole. A combination of two or more old features may be registrable if the same combination is not obvious same as that of earlier one and is new and original.

Colour may also form an element in a design, but colour or colouring as such “die on any article” does not constitute design, unless and until the change of colour usually creates a new pattern or ornament. Composition of lines or colours can also constitute the design under the new definition.

In deciding the question of novelty or originality the evidence of experts in the trade is admissible to an extent. The introduction of any ordinary trade variants into an earlier existing old design cannot make it new or original to any extent.

• The design should be new or original, and must not be previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to any new subject matter
• The design must relate to features of shape, configuration, pattern or ornamentation applied or applicable to any article.
• The design should be applied or must apply to any article by any industrial process defined.
• The features of the design in the finished article should appeal to and are judged solely by the eye itself. This implies that the design must appear and should be visible on the any finished article, for which it is meant for.
• Any mode or principle of construction or operation or anything which is in substance a mere mechanical device, cannot be registered as a design under the act. For example, a key having its novelty only in the shape of its corrugation or bent at the portion intended to engage with levers inside the lock linked with, cannot be registered as a design under the Act.
• The design must not include any Trade Mark or property mark or artistic works as being defined under the Copyright Act, 1957.