Piracy
Piracy is the infringement of registered design, so before discuss about Piracy, it is necessary to know what is Designs according to the Designs Act.
Design can be registered of a article which has some shape, configuration, pattern, combination, pattern, ornamentation or composition of lines applied in any form by any industrial process or means but does not include any mode or principle of construction or anything which is in substance a mere a mechanical device but does not include any Trade mark or artistic work. It must appeal to the eyes.
Piracy :
Infringement of a copyright in design is Piracy of a registered Design.
According to Designs Act piracy occurs only in registered Designs, which is same as Infringement of Copyright.
Infringement :
- Articles publish or published or exposed for sale by imitation or fraud
- to apply or cause to apply articles by imitation of registered Design
- to import for the purpose of the sale of registered Design article.
How Court determines Infringement :
- The court has to look at the two articles together and also separately, and then have to decide whether the designs of the defendant and the plaintiff is same or not.
- The court has to see whether the design is qualifying all the requirements of the Designs Under the Designs Act, which are as follows:
- registered design is novel, original, not previously published in India.
- Whether it appeal to eye
Copying is not a criterion for determining infringement as in the case of infringement under the Copyright Act.
Independently conceived designs can also be an infringement of the registered design.
Term of Registered Design is of 10 years, can be renewed for 5 years.
Jurisdiction :
District court or High Court.
Burden of proof is on the plaintiff
Defenses :
- denial of infringement
- plaintiff is not entitles to sue
- delays.
Remedies :
Civil Remedies :
- injunction.
- damages or compensation
- delivery -up of infringing articles.
Author : Pradnya Pahurkar [lawyer]