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How designs are registered internationally?

Design refers to a characteristic feature of any object like shape, pattern, color etc[1]. A design may comprise of two-dimensional or three-dimensional characteristics[2]. As time advances, new designs in the industry were approaching. Therefore, a necessity to make sound legislation was reckoned. As a result, the Hague Agreement was concluded in 1925 for international protection of Designs[3]. At present, dual Acts of the Hague Agreement[4] are in function namely, the Hague Act, 1960 and Geneva Act, 1999[5].

The member states of the World Intellectual Property Organization (WIPO) can acquire any of the Acts as they consider satisfactory as both are in operation at present[6]. If any member state has assumed to procure protection under any one of the Acts, then that Contracting Party[7] can procure protection for its design in another country only if they had acquired the similar Act[8].
Under this Act[9], a Consenting Party can register up to 100 designs in numerous countries in one go only, therefore enabling the protectors to register its design with a finite procedure[10]. The International Bureau[11] of WIPO is a body regulating the Hague mechanism[12].

Hague Mechanism For Worldwide Registration Of Designs

Eligibility Criteria

Any individual human being is eligible to file an application under the Hague Mechanism who[13]:
· belongs to a state of the Consenting Party; or
· is a part of an intergovernmental association of a state that is a Consenting Party; and
· have a dwelling, an ordinary residence or an existent and productive place of business within the territory of a Consenting Party.

What Is All Included In The Application?

A request for enlistment of an industrial design may consist of two or more industrial designs. The languages prescribed in which application shall be written are English, French or Spanish[14].

It shall subsume the following[15]:

  • a plea for registration of a design; or
  • the data related to the applicant[16]; or
  • copies of reproduction of the design, as may be specified; or
  • the item on which that design is to be employed; or
  • the name of the Contracting Parties and
  • prescribed fees.

Where the industrial design is two-dimensional, the application shall include the specimens of that design, if the imploration for adjournment of publication is made[17]. Also, if the office of any Consenting Party is an Examining Office [18] and its legislation requires that the Applicant Party for the registration to be granted has to fulfill certain conditions, then its application shall comprise of the following elements[19]:

  1. the identity of the creator; or
  2. the summary of the characteristic features of that industrial design; or
  3. any claim.


How An Application Is Submitted?

The procedure for applying for an industrial design is plain sailing. An ‘applicant’ can file an application straight with the ‘International Bureau’ either through its online portal or by hand overring the hardcopy directly to its office[20]. An applicant also has a route to file an application via its Contracting Party[21]. However, most of the applications are filed straight to the ‘International Bureau’.

Perlustration Of Application

After an application is submitted by the applicant with the ‘International Bureau’ together with the recommended fees, the International Bureau perlustrates the application, whether it conforms with all the requirements of the Act or not[22]. The ‘International Bureau’, upon confirming, will list such design and publish it[23]. If the application does not co-relate with the essentials, it will summon such applicant and require him to follow the emendations as prescribed by the Bureau[24].

If the emendations are not made within the specified duration, then such an application will be considered discarded[25]. If the applicant does not conform with the requirements of the Consenting Party, where such Consenting Party is an Examining Office and its legislation requires certain elements to be mentioned, then such application shall deem not to contain the appellation of the Contracting Party[26].

What Will Be Considered As Filing Date Of The Application?

Case 1: If the applicant had directly applied to the International Bureau, in that scenario, the date on which the International Bureau take receipt of that application, shall be the date of filing[27].

Case 2[28]: It the applicant had applied via the Office[29] of its Consenting Party, in such a case, the date of filing shall be the duration on which intermediary office received that application[30]. Once the intermediary office received the application, it has to be delivered to the International Bureau within one-month[31].

Case 3: If any loopholes are found while perlustrating the application and Bureau has summoned the applicant to correct such loopholes within the time prescribed, in such a case, when such modified application is received by the International Bureau, that date shall be the date of filing[32].

Registration Of Industrial Design

Where after the perlustration of the application by the International Bureau, it is evident that the applicant has complied with all the requirements, the International Bureau shall register such design in its international register[33] maintained with them[34]. If the applicant does not conform with the requirements of this Act, then the registration shall be successful only after the irregularities has been made right within the prescribed duration[35].

The date of registration of an industrial design shall be same as the filing date, unless any loopholes are discovered[36]. In case, any aberrations exist, the registration date shall be the date when such remodeled application is accepted by the ‘International Bureau’ or the logging date of international application, whichever occurs later[37].

Publication
Post the design is listed in the register[38] kept by the International Bureau, it shall advertise such design on the website maintained by World Intellectual Property Organization[39]. Copies of such publication shall be made available to the contracting parties[40].

The applicant while dispatching the application for its industrial design may attach a request for adjournment of publication of its industrial design[41]. The adjournment shall be valid only for thirty days[42]. Therefore, if a plea for adjournment has been attached to the application, then the design shall be advertised only after thirty days[43]. In case, any lesser duration is intimated in the application, then publication shall take effect after that date[44]. If any party to a contract declared that the provisions for procrastination has not been specified under its statute, in such a case, the applicant shall be summoned before the International Bureau to pull out the name of that party within one month[45].

Refusal To Grant Protection

Any party designated to a contract shall have a right to refuse protection to the design of the applicant, if according to the law of that designated party, the requisites for the authorization of protection to that design are not fulfilled[46]. The designated Contracting Party shall communicate such refusal along with the reasons for such refusal to the International Bureau within the set duration[47]. After that, the International Bureau shall communicate such refusal to the applicant[48].

The applicant has a redress against such refusal in the form of reappraisal or implead[49]. Where the designated contracting party has not disclosed any refusal, it shall provide to the International Bureau, a statement of protection, that the registered design shall be validated in the country of that Contracting Party[50].

Validity Of Registration

The registration of an industrial design shall be invalid after five years from the date of initial registration[51]. The parties may renew the registration for two supplementary duration of five years only after recognizing the specific procedure and payment of charges[52].

Validity Of Protection By Designated Party

Once the registration of a design is a success with the International Bureau, the design shall remain in force in each state of Contracting Party for fifteen years[53]. However, if the legislation of any Contracting Party demands for a duration transcending fifteen-year then the registration shall be bonafide for that transcending period demanded by that statute, with the only condition that registration of that industrial design shall be renewed by the applicant for a further period with the Bureau[54].

End-Notes:

  1. Institute of Company Secretaries of India, Setting up of Business entities and closure 392-393(M.P. Printers, 2019 edition.)
  2. Section 2(d), Designs Act, 2000.
  3. World Intellectual Property Organisation, Hague Agreement concerning the International Registration of the industrial design, available at https://www.wipo.int/treaties/en/registration/hague/ (Visited on April 10, 2019).
  4. Article 1.1, Geneva Act of July 2, 1999.
  5. WIPO, Summary of the Hague Agreement concerning the international registration of industrial designs, available at https://www.wipo.int/treaties/en/registration/hague/summary_hague.html (Visited on April 10, 2019).
  6. Wikipedia, Hague Agreement concerning the international deposit of industrial designs, available at https://en.wikipedia.org/wiki/Hague_Agreement_Concerning_the_International_Deposit_of_Industrial_Designs (Visited on April 10, 2019).
  7. Article 1.3, Geneva Act of July 2, 1999.
  8. Ibid.
  9. Article 1.2, Geneva Act of July 2, 1999.
  10. Ibid, 4.
  11. Article 1(xxviii) of the Geneva Act of July 2, 1999.
  12. Article 22(1)(a) of the Geneva Act of July 2, 1999.
  13. Article 3 of the Geneva Act of July 2, 1999.
  14. Rule 6(1), Common Regulations under the 1999 Act and 1960 Act of the Hague Agreement.
  15. Article 5 read with Rule 7, Geneva Act of July 2, 1999.
  16. Article 1.10, Geneva Act of July 2, 1999.
  17. Article 5(1)(iii), Geneva Act of July 2, 1999.
  18. Article 2.16, Geneva Act of July 2, 1999.
  19. Article 5(2), Geneva Act of July 2, 1999.
  20. Article 4, Geneva Act of July 2, 1999.
  21. Ibid.
  22. Article 8(1) of the Geneva Act of July 2, 1999.
  23. WIPO, Hague guide for users, available at: https://www.wipo.int/export/sites/www/hague/en/guide/pdf/hague_guide.pdf. (Visited on April 10, 2019)
  24. Article 8(2)(a), Geneva Act of July 2, 1999.
  25. Ibid.
  26. Article 8(2)(b), Geneva Act of July 2, 1999.
  27. Article 9(1), Geneva Act of July 2, 1999.
  28. Article 9(2), Geneva Act of July 2, 1999.
  29. Article 1.16, Geneva Act of July 2, 1999.
  30. WIPO, The Geneva Act, 1999,of the Hague Agreement concerning the international registration of industrial disputes, available at https://www.wipo.int/docs/pubdocs (Visited on April 10, 2019)
  31. Ibid
  32. Article 9(3), Geneva Act of July 2, 1999.
  33. Rule 15(1), Common Regulations under the 1999 Act and 1960 Act of the Hague Agreement.
  34. Article 10(1), Geneva Act of July 2, 1999.
  35. Ibid.
  36. Article 10(2)(a), Geneva Act of July 2, 1999.
  37. Article 10(2)(b), Geneva Act of July 2, 1999.
  38. Ibid, 27.
  39. Article 10(3)(a), Geneva Act of July 2, 1999.
  40. Article 10(3)(b), Geneva Act of July 2, 1999.
  41. Article 11, Geneva Act of July 2, 1999.
  42. Ibid, 23.
  43. Ibid.
  44. Article 11(1), Geneva Act of July 2, 1999.
  45. Article 11(3), Geneva Act of July 2, 1999.
  46. Article 12(1), Geneva Act of July 2, 1999.
  47. Article 12(2), Geneva Act of July 2, 1999.
  48. Article 12(3), Geneva Act of July 2, 1999.
  49. Article 12(3)(b), Geneva Act of July 2, 1999.
  50. Rule 18bis (1), Common Regulations under the 1999 Act and 1960 Act of the Hague Agreement.
  51. Article 17(1), Geneva Act of July 2, 1999.
  52. Article 17(2), Geneva Act of July 2, 1999.
  53. Article 17(3)(a), Geneva Act of July 2, 1999.
  54. Article 17(3)(b), Geneva Act of July 2, 1999.

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