A design is a legal protection granted to the person who has created a new Design which is novel and non-obvious from all other existing designs. Our previous article related to what is a design patent and the design registration process shows why the patent is an important part of securing our invention. In this article, we are going to discuss the restoration of lapsed Design and the rights of the owner of the design during such time.
Term of a design patent
As per the Design Act of 2000, the term of a design patent is 10 years which can be extended for five years more. This five-year extension is called copyright on registration. Section 11 of the Design Act of 2000 deals with copyright on registration. As per section 11, the proprietor or owner of the Design can give the application to the controller for the extension of a period of five years before the expiry of 10 10-year period. it should be kept in mind that this period is extendable only for one time.
What is a lapsed design?
The owner has to file the request for the copyright on registration before the expiry of 10 years but sometimes it happens that the owner of the Design failed to apply for the extension of the term of Designt. After the expiry of 10 years, the design will be considered a lapsed design. And now if such a person wants to extend this period for five years, then he has to apply for the restoration of lapsed design.
Restoration of lapsed Design
Section 12 of the Designs Act of 2000 deals with the restoration of lapsed design. According to this section, if the owner of the Design has failed to apply for the copyright on registration under section 11 of the act, then such a person has to apply for the restoration of the lapsed design within 12 months from the date on which the design was seized to have the effects.
Persons eligible to file restoration of lapsed Design?
As per the act,
- the proprietor of such a design
- His legal representative
- In case of two or more persons, any of the persons
can apply for the restoration of the lapsed Design.
Conditions related to the restoration of lapsed design
As per the act, there are some conditions which need to be fulfilled by the person who is going to apply for the restoration of the lapsed Design. These conditions are:
- The failure to file the fee for the extension of the period of copyright registration was unintentional
- There was no delay in making the application.
These are two conditions that need to be fulfilled by the person who will apply. The owner of the Design needs to attach the related evidence which shows or supports These two conditions.
Form and Fees for restoration of lapsed design
Section 12 of the Designs Act of 2000 talks about the restoration to a lapsed design and rule 24 of the Design Rules provides the form for the restoration and schedule one provides the prescribed fees to restore the lapsed Design.
As per the act to restore the lapsed design, the proprietor needs to file Form 4 with the prescribed fees which is ₹1000 for a natural person.
Procedure to restore the lapsed Design
Filing of online application
The applicant needs to fill the Form 4 by giving the reasons for the failure to pay the fees for the extension of the copyright of registration. By making Form 4, the applicant needs to upload this form online on the official website.
Here is the link to the website
https://online.ipindia.gov.in/eDesign/goForLogin/doLogin
After uploading the form, and necessary documents the applicants need to pay the prescribed fee which is ₹1000 for a natural person.
Consideration of application
After receiving the application, if the controller of Design is satisfied that the failure to pay the fees was unintentional, and there was no undue delay from the side of the applicant, then he will restore the lapsed Design within one month by taking the additional fee of Rupees 1000.
Hearing
If the controller is not satisfied with the reason provided by you, then he will ask you to attend the hearing within one month from the date of your application for the restoration of lapsed Design.
Restoration of Design
After attending the hearing if the controller is satisfied with your reason, then he will take the additional fees which is ₹1000 and then restore the lapsed Design and make the entry in the register. This restoration will be done for the next five years from the date when the design was lapsed.
Publication
This restoration of the lapsed design will be published in the official gadget to inform others that the design has been restored by the owner and his rights are now in force.
Rights of the owner related to lapsed design
During the period of lapsed design, the Design owner will not have any rights related to his Design patent. It means, that if any other person sells his Design without his consent, in that case, the owner has no right to file an infringement suit against him.
However, after the restoration of the lapsed design, the owner of the Design can file an infringement suit against such a person after the publication of such restoration of lapsed designs.
Conclusion
A design is a creation of mind and it needs to be protected under intellectual property rights. But sometimes it happens that the owner of the design fails to pay the fees for the extension of five years. To correct his failure, the Design Act provides the facilities to restore the lapsed Design legally.
I hope now you have the understanding related to the restoration of the lapsed design. If you have any questions or suggestions related to this article, you can write it down in the comment box.