Designs Act, 2000, which India has adopted, is one of the most effective statutes. Design Law provides for effective system for the protection of Industrial Designs. It aims to promote design activity in production. The Design Act, is also intends to ensure that the law does not unnecessarily extend the protection, beyond what is necessary. It intends to create the required incentive for design activity, while removing the impediments to the free use of the available designs. 

What is a Design under Indian law

Under the Indian Design Law, a Design  means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957

WHAT IS AN ORIGINAL DESIGN

Under the Design Act, only Original designs are to be registered. Thus, a design developed prior, but has not been used and has also not come in public domain can qualify as original. In India, Design Application can be filed by a the Proprietor of a Design. A “Proprietor of a new or original design would mean (i) where the author of the design, for good consideration, executes the work for some other person, means the person for whom the design is so executed; (ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person too.

what does not qualify as original design

Though, the Design Act provides for Original Design to be registered, however, the following Designs do not qualify to be registered in India: 

a) is not new or original; or

b) has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or

(c) is not significantly distinguishable from known designs or combination of known designs; or

(d) comprises or contains scandalous or obscene matter shall not be registered. 

who can make an application for registration

An application for registration of a Design can be made by any person in the prescribed format claiming to be the proprietor of any new or original design, not previously published in any country, and which is not contrary to public order or morality, register the design under this Act.

The Controller shall, before grant of registration, refer the application for examination by an examiner appointed under the Act. The Examiner’s duty is to examine whether such a design is capable of being registered under the Designs Act. The Controller considers the report of the examiner on such reference while grating the registration.