Summary
The Controller General of Patents, Designs and Trademarks has published a comprehensive Concept Note outlining transformative amendments to the Designs Act, 2000. The proposed reforms introduce groundbreaking protection for non-tangible design forms including GUIs, virtual reality interfaces, and animations; clarify the design-copyright interface to prevent perpetual monopolies; establish a full 12-month grace period for all types of disclosures; enable deferred publication aligned with the Hague Agreement; introduce statutory damages up to ₹50 lakhs for willful infringement; restructure protection terms to a 5+5+5 system; permit multiple designs in single applications; enable divisional applications; and incorporate comprehensive provisions for international registration under the Hague Agreement, positioning India as a global hub for design innovation.
Overview: A New Era for Indian Design Protection
The Controller General of Patents, Designs and Trademarks has released a groundbreaking Concept Note detailing comprehensive amendments to the Designs Act, 2000. These proposed reforms represent the most significant transformation of India's design protection framework since the Act's inception, systematically addressing the protection of digital and virtual designs, resolving longstanding ambiguities at the design-copyright interface, introducing procedural flexibilities aligned with international best practices, strengthening enforcement mechanisms through statutory damages, and paving the way for India's accession to the Hague Agreement Concerning the International Registration of Industrial Designs. The amendments signal India's commitment to fostering innovation in both physical and digital design spaces while integrating into the global intellectual property ecosystem under the principle of "Design in India, Design for the World."
I. Extension of Design Protection to Non-Tangible Forms
1. Current Legal Framework and Its Limitations
The existing Designs Act, 2000 defines both "article" and "design" with explicit reference to physical embodiment. Under current law, a design is defined as features of shape, configuration, pattern, ornamentation, or composition of lines or colors applied to any article, where "article" is understood to mean a tangible, physical object capable of independent existence. This definition creates substantial uncertainty regarding the registrability of designs that exist in purely digital or virtual forms, such as:
- Graphical User Interfaces (GUIs): Visual interfaces displayed on computer screens, mobile devices, or other electronic displays
- Icons and Fonts: Graphical symbols and typographic designs used in digital environments
- Augmented Reality (AR) and Virtual Reality (VR) Interfaces: Interactive visual elements displayed in immersive digital environments
- Animations and Transitions: Dynamic visual effects that change over time in response to user interaction or system events
- Virtual Products: Designs for products that exist solely in digital spaces, such as virtual fashion items or digital collectibles
The requirement of physical embodiment has created ambiguity as to whether such designs can be protected under the Act, despite their substantial commercial value and the significant creative effort invested in their development.
2. Proposed Amendments to Definitions
The proposed amendments will fundamentally expand the definitions of "design" and "article" to explicitly cover non-physical forms. The revised definitions will:
- Decouple design protection from physical embodiment: Remove the requirement that a design must be applied to a tangible carrier or physical product
- Explicitly include digital manifestations: Recognize GUIs, AR/VR interfaces, animations, transitions, and other digital aesthetic elements as protectable designs
- Extend coverage to purely virtual products: Provide protection for designs of products that exist solely in digital or virtual environments, without requiring any physical counterpart
3. International Alignment
This reform aligns India with recent developments in major jurisdictions:
- European Union: The EU has reformed its design protection regime to explicitly cover animations and intangible products
- United Kingdom: The UK Intellectual Property Office has issued proposals clarifying that GUIs qualify as "products" eligible for design registration
- Locarno Classification: The international Locarno Classification system for industrial designs has been updated to include classes for screen displays, icons, and graphical symbols—classifications that India has already adopted in practice
By removing the physical embodiment requirement, India will harmonize its design law with international trends and ensure that designers of digital products receive the same level of protection as designers of physical products.
II. Clarification of the Design-Copyright Interface
1. The Current Ambiguity
Section 15 of the Copyright Act, 1957 provides that once a design is registered under the Designs Act, it loses copyright protection and becomes subject exclusively to design law. However, the provision creates uncertainty for designs that are registrable but not actually registered—that is, designs that meet the substantive requirements for design registration but which the creator chooses not to register or has not yet registered.
This ambiguity creates a risk of perpetual copyright monopolies: if a creator refrains from registering a registrable design, the design may enjoy copyright protection for the life of the author plus 60 years (under Indian copyright law), far exceeding the 15-year maximum term of design protection. This effectively allows creators to circumvent the limited term of design protection by avoiding registration.
2. Proposed Amendment to Section 15(2) of the Copyright Act
The proposed amendment will explicitly amend Section 15(2) of the Copyright Act, 1957 to provide that:
- Designs that are registrable under the Designs Act—whether or not actually registered—may still enjoy copyright protection
- However, such copyright protection will be limited to a maximum term of 15 years, aligning with the maximum protection term available under the Designs Act
This reform achieves several critical policy objectives:
- Prevents perpetual monopolies: By capping copyright protection for registrable designs at 15 years, the amendment prevents creators from using copyright law to obtain protection far beyond what design law would permit
- Harmonizes overlapping regimes: The amendment reconciles the tension between copyright and design law by ensuring that subject matter eligible for design protection cannot be monopolized indefinitely through copyright
- Balances commercial lifespan with public access: Fifteen years represents a period sufficient to protect the commercial value of most industrial designs while ensuring timely entry into the public domain
- Provides statutory certainty: By explicitly addressing registrable-but-unregistered designs, the amendment eliminates longstanding ambiguity in Indian intellectual property law
III. Introduction of a Full 12-Month Grace Period
1. Current Limitation: Six-Month Exhibition-Based Grace Period
Section 21 of the current Designs Act provides only a six-month grace period for disclosures made through exhibitions that have been officially notified by the Central Government. This narrow grace period does not cover:
- Online product launches and digital marketing campaigns
- Crowdfunding platforms where designs are publicly disclosed to attract investment
- Investor presentations and business pitches
- E-commerce marketplaces and social media promotions
- Trade shows and exhibitions not officially notified by the government
This limitation creates substantial risks for startups and new businesses, which often test market response before committing resources to formal registration, and which frequently rely on digital channels for product launches.
2. Proposed 12-Month Universal Grace Period
The amendment proposes to introduce a 12-month grace period for all forms of disclosure, regardless of the mode or medium through which the design is disclosed. Under the proposed framework:
- A designer may publicly disclose a design through any channel—including online launches, crowdfunding campaigns, investor presentations, social media, digital marketplaces, exhibitions (whether or not officially notified), trade shows, or any other public forum
- The designer will have 12 months from the date of first disclosure to file a design registration application
- Disclosures made by the designer (or with the designer's consent) during this 12-month period will not be treated as prior art that would invalidate the design application
This reform provides critical benefits:
- Reduces risks of accidental disclosure: Designers will no longer forfeit protection due to premature or inadvertent public disclosure
- Facilitates market testing: Businesses can gauge consumer interest and market response before incurring the costs of registration
- Supports startups and small businesses: New ventures with limited resources can launch products and secure investment before committing to formal intellectual property protection
- Aligns with international practice: Many jurisdictions, including the United States, provide grace periods of 12 months or more for design disclosures
IV. Introduction of Deferred Publication
1. Current Practice: Immediate Publication Upon Registration
Under the current Designs Act, registered designs are published immediately upon grant. While this ensures transparency and allows third parties to assess the scope of registered rights, it can create strategic disadvantages for applicants who wish to:
- Maintain commercial secrecy during product development phases
- Avoid alerting competitors to upcoming product launches
- Delay disclosure until marketing and distribution channels are fully established
2. Proposed Deferment Period of Up to 30 Months
The amendment proposes to allow applicants to defer publication of registered designs for up to 30 months, aligning with the standards set by the Hague Agreement. Under the proposed framework:
- Applicants may request deferral of publication at the time of filing or at any time before registration
- The design will be examined and registered, but publication will be postponed for the requested deferment period (maximum 30 months)
- During the deferment period, the design registration remains confidential and is not accessible to the public or to competitors
- At the end of the deferment period (or earlier, at the applicant's request), the design will be published
- Applicants may surrender the pending application or registration at any time up to one month before the expiry of the deferment period, allowing withdrawal if market conditions change
3. Innocent Infringer Defense
To balance the rights of design owners with the interests of third parties who may inadvertently infringe unpublished designs, the amendment introduces an innocent infringer defense. Under this defense, third parties who independently develop and commercialize similar designs during the deferment period—without knowledge of the unpublished registration—may avoid liability for infringement committed prior to publication, provided they can demonstrate good faith and independent creation.
V. Introduction of Statutory Damages for Willful Infringement
1. Current Enforcement Challenges
Under the existing Designs Act, design owners seeking remedies for infringement must prove actual damages, which often requires extensive evidence of lost sales, price erosion, or unjust enrichment. This evidentiary burden can be prohibitively expensive and time-consuming, particularly for small businesses and individual designers.
2. Proposed Statutory Damages Framework
The amendment proposes to introduce statutory damages as an alternative to actual damages, providing design owners with a streamlined enforcement mechanism. The proposed framework includes:
- Statutory damages for willful infringement: Courts may award statutory damages ranging up to ₹50 lakhs (₹5 million) for first-time willful violations, without requiring proof of actual damages
- Enhanced penalties for repeat offenders: Repeat infringers may face increased statutory damages to strengthen deterrence and protect design owners from serial violators
- Judicial discretion: Courts will retain discretion to calibrate statutory damages based on the severity of the infringement, the commercial impact, the infringer's intent, and other relevant factors
This reform significantly strengthens enforcement by reducing the cost and complexity of design infringement litigation while providing meaningful deterrence against willful copying.
VI. Revised Term of Protection: Transition to 5+5+5 System
1. Current Term Structure
Under the existing Act, designs are registered for an initial term of 10 years, renewable for an additional 5 years, providing a maximum protection term of 15 years.
2. Proposed 5+5+5 System
The amendment proposes to shift to a 5+5+5 system, consisting of:
- An initial term of 5 years from the date of registration
- A first renewal of 5 years
- A second renewal of 5 years
This structure aligns with the Hague Agreement and reflects the commercial reality that many designs lose market relevance after 5-10 years.
3. Policy Rationale
The proposed system is presented as ensuring that protection lasts only as long as designs remain commercially relevant, reducing the burden on applicants to pay for protection they may not need. However, it is worth noting that the current system already includes a renewal at the 10-year mark, so the primary practical effect of the new system is to introduce an earlier renewal decision point at 5 years, requiring applicants to affirmatively opt into continued protection rather than automatically receiving a 10-year initial term.
VII. Multiple Designs in Single Application
1. Current Limitation
Under the current Act, only one embodiment of a design may be protected in a single application. Applicants seeking to protect multiple design variants (e.g., different colorways, minor stylistic variations, or design options within a product line) must file separate applications for each variant, multiplying costs and administrative burdens.
2. Proposed Reform
The amendment proposes to permit filing of multiple designs within the same Locarno class under a single application. This reform will:
- Reduce official fees and administrative paperwork
- Simplify portfolio management for businesses with product families or design variants
- Align Indian practice with the Hague Agreement and international norms
VIII. Introduction of Divisional Applications
1. Purpose and Function
The amendment proposes to introduce divisional applications, which allow applicants to split a single application into multiple separate applications when:
- Multiple distinct designs are claimed in a single application, and the examiner raises a unity objection
- The applicant wishes to pursue different designs separately for strategic or commercial reasons
- Objections arise to some but not all of the designs claimed, and the applicant wishes to expedite registration of allowable designs while continuing prosecution of objected designs
2. Benefits
Divisional applications prevent loss of rights over valid designs due to procedural hurdles and provide flexibility in managing complex design portfolios. Divisional applications typically retain the filing date of the parent application, preserving priority rights.
IX. Incorporation of International Registrations Under the Hague Agreement
1. Background on the Hague Agreement
The Hague Agreement Concerning the International Registration of Industrial Designs, administered by the World Intellectual Property Organization (WIPO), provides a streamlined mechanism for obtaining design protection in multiple countries through a single international application filed with WIPO. Applicants may designate multiple member countries, and WIPO transmits the application to each designated country's national office for examination and registration.
2. Proposed Amendment
The Concept Note proposes to incorporate a dedicated chapter for Hague Agreement filings into the Designs Act, establishing the legal framework necessary for India to accede to the Hague Agreement and participate in the international design registration system.
3. Strategic Significance
Accession to the Hague Agreement will:
- Integrate India into the global design ecosystem: Indian designers will be able to obtain protection in over 90 countries through a single WIPO filing
- Attract international filings: Foreign designers will be able to designate India as part of their international registrations, increasing the volume and diversity of designs registered in India
- Reduce costs and complexity: The centralized Hague system eliminates the need to file separate national applications in each country, reducing translation costs, agent fees, and administrative burdens
- Position India as a design innovation hub: Participation in the Hague system signals India's commitment to international intellectual property norms and its integration into global innovation networks
X. Conclusion: Toward a Modernized and Globally Integrated Design System
The proposed amendments to the Designs Act, 2000 represent a paradigm shift in India's approach to design protection. By extending protection to non-tangible forms such as GUIs, virtual reality interfaces, and animations, India acknowledges the centrality of digital design in the modern economy. By clarifying the design-copyright interface and capping copyright protection for registrable designs at 15 years, India prevents perpetual monopolies and harmonizes overlapping legal regimes. By introducing a full 12-month grace period covering all forms of disclosure, India reduces the risks faced by startups and supports market-driven innovation. By enabling deferred publication for up to 30 months, India allows designers to protect commercial secrecy during critical product development phases. By introducing statutory damages up to ₹50 lakhs for willful infringement, India strengthens enforcement and provides meaningful deterrence against design piracy. By restructuring the protection term to a 5+5+5 system, India aligns with the Hague Agreement and international best practices. By permitting multiple designs in a single application and introducing divisional applications, India reduces costs and administrative burdens while providing procedural flexibility. And by incorporating provisions for Hague Agreement international registrations, India integrates itself into the global design ecosystem and positions itself as a hub for design innovation under the principle of "Design in India, Design for the World."
These reforms collectively balance the need to incentivize innovation with the imperative of ensuring competitive access to design subject matter, strengthen the enforceability of design rights, modernize procedural frameworks to reflect digital and global realities, and integrate India into international intellectual property treaties and systems. For designers, businesses, and intellectual property practitioners, these amendments signal the beginning of a new era in which Indian design law is equipped to protect both the physical and virtual creations that drive innovation in the 21st century.
Significance
The proposed amendments, if enacted, will fundamentally transform the landscape of design protection in India. Designers of digital products—including software developers, UX/UI designers, virtual reality creators, and digital artists—will gain access to formal intellectual property protection previously unavailable under Indian law. Businesses will benefit from reduced costs, procedural flexibility, and stronger enforcement mechanisms. International applicants will find India a more attractive destination for design registration through the Hague system. And the Indian intellectual property system will be aligned with global standards and integrated into international frameworks, fulfilling the vision of positioning India as a leader in design innovation. The Controller General's Concept Note represents a comprehensive and forward-looking approach to design law reform, addressing both immediate practical concerns and long-term strategic objectives, and setting the stage for India to become a global hub for creativity and innovation in both physical and digital design.
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