Design Infringement and Remedies under The Design Act

Same as other intellectual property rights, there is apprehension of Design infringement as well.  In this era of technology, there is a high chance that many people are trying to do the same work or trying to pirate things which are already registered under the Indian patent offices. In our previous articles related to what a is Design patent and the process of design registration, we learned about the various aspects of Design patents in India and other countries. In this article, we are going to discuss about the design infringement. 

What is Design infringement?

When a person, who is not the true or first owner of the design or assignee of the design, or has no authority to make use sale or import the registered design without the free consent of the owner of the registered design tries to make, use, or sell such registered design is called Design infringement.

In simple words, the piracy of a registered design patent is considered an infringement of a design in India. Section 22 of the Design Act of 2000 deals with the Design infringement in India. According to this section, selling a product or design which is already registered comes under design infringement.

A design patent is a branch of patent law. There are two types of patents: design patents and utility patents. You can learn about utility patents by reading our articles related to what a patent is and the process of filing a patent application.

Conditions for Design Infringement

The Design Act 2000 provide some conditions for design infringement, which will be taken into consideration while the court deals with the design infringement. These conditions are

During the existence of Design

As we know there is a term of Design patent which is 10 years +5 years. If any person except the true owner or any person who got the consent of the true owner, has done by the piracy of registered Design, it will be considered as Design infringement. But if such a period has been over, then it will not be considered an infringement of the design.

Prior consent

The person infringing the rights given by the Design Act must not have the prior consent of the owner of the registered Design.

The act must be done for sale

The act done by the person must be done for sale. If any person tries to use the registered design for his private or personal use then it will not be considered Design infringement as per the Design Act of 2000.

The same class of infringing articles

It should be kept in mind that the infringing article must belong to the same class of the registered Design. Other class does not come under the infringement of a design patent. 

These are some conditions that must be met to constitute infringement of a Design. Now let us discuss the remedies provided by the act against the design infringement.

Remedies for design infringement 

The Design Act 2000 aims to protect the design patents. That is why it gives some remedies. In case of Design infringement. Let us discuss each of the remedies.

Injunction

In the suit against the design infringement, the court may grant the injunction against the party during the time of the court proceedings. in the injunction, the party will be restrained from manufacturing, using, or selling the infringing design. 

Accounts of profit

The court can award the damages to the aggrieved party who has suffered the loss due to the infringement. The court will order the infringing party to pay the profit from the infringed profit as compensation to the aggrieved party.

Delivery of goods

The court may order the infringing party to deliver the goods to the aggrieved party or the court can also order the infringing party to destroy the articles made by them with the help of registered design. 

Seizure and detention

The court may order to seize the infringing articles with the help of police. There are many cases where the court ordered the seizure of the infringed products. 

Costs

The court may award the cost to the aggrieved party so that they can fulfil their loss due to the infringement.  The court will decide this cost so it will vary from case to case by checking the losses that occur to the real owner due to the infringement.

Offer to work together

The court may also offer both parties to work together in special cases so that either of the parties should not go into the losses. But it depends upon the real owner of the design whether he wants to work with the party in default or not.

These are some remedies which can be provided by the court during the suit of infringement related to the infringement done to the Design, which was registered under the Design Act of 2000.

Conclusion

Design infringement can be done by a person mistakenly, and it should be noted that the infringement of design which is done by the person unintentionally does not come under the infringement. Also if any person is using the registered design for his personal use, then the owner of the registered Design cannot file a suit against him for the infringement. I hope you understand the infringement of the Design patent. You can give your views in the comment box related to this article.

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