Most of us are familiar with provisions in Patents Law related to secrecy directions [see end note 1] on inventions relevant for defence purposes and the security of India; however, similar secrecy directions are also provided under the Designs Law [see end note 2]. This article highlights the provisions in the Designs Law for imposing secrecy directions on designs and analyses possible remedial options available to the proprietors when such secrecy directions are imposed.
Provisions in Designs Law
A design refers to features of shape, configuration, and ornamentation applied on an article, which are judged based solely on their aesthetic appeal [see end note 3]. Innovations in designs may occur in the fields which are prejudicial to the security of India. Therefore, provisions relating to imposing secrecy of such designs are provided in the Designs Act, 2000 (the Designs Act) to prevent publishing of such sensitive information which otherwise would be made public by the operations of the Designs Act, 2000.
A design is considered to be prejudicial to the security of India if the design is to be applied to an article used for war, or applied directly or indirectly for the purposes of defence related articles [see end note 4]. Under Section 46 of the Designs Act, the Controller shall not publish or otherwise disclose any information relating to a design, if he considers the design is prejudicial to the security of India. The Controller is also empowered to cancel a registered design if such registered design is notified, by the Central Government to be prejudicial to the security of India [see end note 5].
The Designs Act read with The Manual of Designs Practice and Procedure (the Designs Manual) clarifies that a design application is not registrable if the design is prejudicial to the security of India. The Designs Manual directs that while examining a design application, the examiner shall determine whether the design under consideration is prejudicial to the security of India. If the Examiner finds that the design is prejudicial to security of India, he shall report the same to the Controller. If the Controller agrees with the view of the Examiner, the Controller may raise an objection under Section 46 of the Designs Act in an examination report while issuing the same to the proprietor of the design application. The Controller, in parallel, refers the design application to the Defence Research Development Organization (DRDO), Ministry of Defence, Government of India, to analyze the application and provide its views.
Remedies against refusal of a design application
The Designs Manual mentions that a design application, if objected under Section 46 of the Designs Act, shall proceed further if the DRDO is of the view that the design is not prejudicial to the security of India. However, unlike the Patents Act, the Designs Act provides the proprietor of the design application an opportunity to provide arguments or explanation in response to an objection raised under Section 46 in the examination report. The proprietor also has an option to request for a hearing with the Controller to further discuss this and address the objection. If the Controller refuses to register the design application under Section 46 after considering the arguments or explanation of the proprietor, then the proprietor has an option to appeal to the High Court, under Section 5(4) [see end note 6] of the Designs Act, against such refusal by the Controller.
Remedies against cancellation of a registered design
If a registered design is cancelled by the Controller under Section 46(b), there are no provisions in The Designs Act that provide any remedy to the proprietor of a registered design if the proprietor believes that the Controller has erred in cancelling the registered design. The proprietor, in such a case, has an option to file a writ petition, at the High Court, justifying that the Controller has erred in cancelling the registered design under Section 46 for being prejudicial to the security of India.
Conclusion
The order of the Controller refusing a design application or cancelling a registered design under Section 46 is not final. The proprietors aggrieved by such orders of the Controller under Section 46 can seek appropriate remedies, as explained under previous headings, before the High Court.
[The authors are Associate and Principal Associate respectively, IPR Practice, Lakshmikumaran & Sridharan, Delhi]
- The Patents Act, 1970, at Section 35.
- The Designs Act, 2000, at Section 46.
- The Designs Act, 2000, at Section 2(d).
- The Designs Act, 2000, Explanation to Section 46.
- The Designs Act, 2000, at Section 46(b).
- The Designs Act, 2000, at Section 5(4) reads “The Controller may, if he thinks fit, refuse to register any design presented to him for registration; but any person aggrieved by any such refusal may appeal to the High Court.”