EXPOUNDING DESIGN ACT, 2000 IN CONTEXT OF ASSAM’S TEXTILE SECTOR

Dissertation submitted to National Law University, Assam in partial fulfillment for award of the degree of MASTER OF LAWS

Supervised by, Submitted by, Dr. Topi Basar Anee Das Associate Professor of Law UID- SF0217002 National Law university, Assam 2nd semester Academic year- 2017-18

National Law University, Assam June, 2018 SUPERVISOR CERTIFICATE

It is to certify that Miss Anee Das is pursuing Master of Laws (LL.M.) from National Law University, Assam and has completed her dissertation titled “EXPOUNDING DESIGN ACT, 2000 IN CONTEXT OF ASSAM’S TEXTILE SECTOR” under my supervision. The research work is found to be original and suitable for submission.

Dr. Topi Basar Date: June 30, 2018 Associate Professor of Law

National Law University, Assam

DECLARATION

I, ANEE DAS, pursuing Master of Laws (LL.M.) from National Law University, Assam, do hereby declare that the present Dissertation titled "EXPOUNDING DESIGN ACT, 2000 IN CONTEXT OF ASSAM’S TEXTILE SECTOR" is an original research work and has not been submitted, either in part or full anywhere else for any purpose, academic or otherwise, to the best of my knowledge.

Dated: June 30, 2018 ANEE DAS UID- SF0217002 LLM 2017-18

ACKNOWLEDGEMENT

To succeed in my research endeavor, proper guidance has played a vital role. At the completion of the dissertation at the very onset, I would like to express my sincere gratitude to my research guide Dr. Topi Basar, Associate professor of Law who strengthen my knowledge in the field of Intellectual Property Rights and guided me throughout the dissertation work. She continuously guided me in the scheme, progress and final shape of my dissertation. Without her proper guidance and constant support throughout the work, my dissertation would have been incomplete. I would also like to express my special gratitude towards Ms. Moonmi Gohain and Assistant professor of Law and Ms. Namrata Gogoi, Assistant Professor of History for their valuable guidance as well. I would also like to thank my junior Mr. Prakreetish Sarma, student of B.A.L.L.B. 9th Semester who helped and supported me in conducting my empirical study without much difficulty throughout the research work. I would also like to thank the Librarian and whole staffs of NLUA library, staffs of IT section for their immense help and cooperation in making availability of relevant materials required for the study. I would also like to thank NLUA Assam as an institute where I not only completed my academic degree but also grew as an individual at the same time. Above all, I would like to thank almighty God, my family, teachers and friends for encouraging and helping me to work with much deliberation.

ANEE DAS UID- SF0217002 2017-18

i

PREFACE

Intellectual property is the creation of human mind, human intellect and hence called ‘Intellectual property’. It is an important means of accumulating tangible wealth. Intellectual properties and intangible assets jointly form the most important driving force of the world economy. The present research paper explore more particularly about the premise of formulating Design Act, 2000 to the main logic behind industrial production to protect Textile sector of Assam. Assam in particular has a rich tradition of handloom weaving descending down from generation to generation. Designs used in the traditional textile of Assam convey different meanings having unique and distinctive characteristics in many ways. These are found to be source of inspiration and carry specific meaning and significance in the socio-cultural life of the people of Assam. Through this paper, researcher seeks to provide a depth understanding of the extent of the works of Textile Designers and tries to find out through conducting an empirical study, awareness of Design Act, 2000 among the people engaged in the sector and application of such legislation in Textile sector of Assam.

ANEE DAS UID- SF0217002 2017-18

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TABLE OF CASES

International cases Page(s)

Amp inc. v. utilux pty ltd 46

Interlego v. Tyco Industries 53

Lawson industries Ltd’s Appln 16

Lord Avonside in Harvey & co. v. secure fittings 46

National cases

Aga Medical Corporation v. Mr. Faisal Kapadi and Anr 65

Bharat Glass Tube Ltd v. Gopal Glass works Ltd (different page. No) 17, 45, 51

Britannia Industries v. Sara Lee Bakery 58

Daniel v. A.R. Safiullah 69

Dart Industries Inc and another v. Techno Plast and others 56

Disney Enterprises Inc v. Prime House wares ltd 17

Gammeter v. controller of Patents 55

Gopal Glass works Ltd. v. Assistant Controller of Patents and Designs 66

Haji Sikandar Shah v. Mian Rahim Baksh 46

Indo Ashahi Glass Co. Ltd v. Jai Mata Rolled Glass Ltd 69

Joginder Singh v. Tabu Enterprises 66

Khadim Shoe pvt. Ltd v. Bata India Ltd 56 lag co. ltd v. Triveni Glass Ltd 66

Md. Abdul Karim v. Md. Yasmin 59

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Microfibres, inc. v. Giridhar & co. & others 17, 49

National Trading co. v. Monica Chawla 56, 66

Parle products private limited v. Surya food & Agro limited 46

Prem Singh v. Ceeam Industries 69

Reckitt Benckiser (India) Ltd. v. Wyeth Limited 55

Rotela Auto components (p) Ltd. v. Jaspal Singh 55

Samsonite Corp vs Vijay Sales 65

Two-rib glass lenses 47

Western Engineering co. v. Paul Engineering Co. 58

Wimco Ltd. Bombay v. Meena Match Industries, Sivakasi 57

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TABLE OF STATUTES

1883- The Paris convention for the protection of Industrial property.

1886- Berne Convention for the Protection of Literary and Artistic Works

1925- Hague Agreement concerning International deposit of Industrial design

1934- The London Act

1957- The Indian Copyright Act

1960- The Hague Act

1967- World Intellectual Property Organization

1968- Locarno Agreement Establishing an International Classification for Industrial Designs

1994- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)

1999- The Geneva Act

2000- Industrial Design Act

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LIST OF ABBREVIATIONS

1 ARIPO The African Regional Intellectual Property Organization 2 BOIP Benelux Office for Intellectual Property 3 CAD Computer-Aided Design 4 CDP Catalytic Development Programme 5 CO Company 6 DLT Delhi Law Times 7 EC European Community 8 EUIPO European Union Intellectual Property Office 9 INC Incorporated 10 IPR Intellectual Property Rights 11 LTD Limited 12 OAPI The African Intellectual Property Organization 13 PTC Patent and Trademark cases 14 PWD Public Works Department 15 REGD Registered 16 RPC Ranbir Penal Code 17 TRIPs The Agreement on Trade-Related Aspects of Intellectual Property Rights 18 UK United Kingdom 19 USPTO United States Patent and Trademark Office 20 WIPO World Intellectual Property Organization

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TABLE OF CONTENTS

Page(s)

Certificate

Declaration

Acknowledgement i

Preface ii

Table of cases iii-iv

Table of Statutes v

List of Abbreviation vi

CHAPTER-I

INTRODUCTION

1.1 Introduction 1-2

1.2 Statement of Problem 2

1.3 Aims and objectives 2-3

1.4 Research Question 3

1.5 Hypothesis 3

1.6 Research Methodology 3-4

1.7 Scope and Limitation 4

1.8 Literature Review 4-9

1.9 Chapterization 9-10

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CHAPTER-II HISTORICAL PERSPECTIVES

2.1 Introduction 11-12

2.2 Historical background of Industrial Design Rights 12-14

2.2.1 Origin of Design Rights 12-13

2.2.2 Recognition and its importance 13-14

2.3 Growth of Design Act in India 14-16

2.3.1 Development of Design law in India 14-15

2.3.2 Efficacy of colonial Design Act, 1911 15-16

2.4 Protection of Industrial Design under the Design Act, 2000 16-18

2.5 Conclusion 18

CHAPTER-III

INTERNATIONAL DEVELOPMENT IN DESIGN LAW

3.1 Introduction 19

3.2 The Paris convention for the protection of Industrial property, 1883 19-26

3.2.1 Introduction 19-20

3.2.2. Historical Background of the Paris convention 20

3.2.3 Features of Paris Convention 21

3.2.4 Purpose of Paris Convention 21

3.2.5 Specific provisions 21-23

3.2.6 General Provisions 23-24

3.2.6.1 Exception to national Treatment 24-26

3.3 Berne Convention for the Protection of Literary and Artistic Works, 1886 26

3.3.1 Introduction 26

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3.3.2 Specific Provisions 26

3.4 Hague Agreement concerning International deposit of Industrial

design, 1925 27-34

3.4.1 Introduction 27-28

3.4.2 Historical background of Hague Agreement 28-32

3.4.3 Objective of the Hague Agreement 32

3.4.4 Features of the Hague System 32-33

3.4.5 Purpose of the Agreement 33

3.4.6 Advantages of the Hague System 33-34

3.5 Locarno Agreement Establishing an International Classification for

Industrial Designs, 1968 34-40

3.5.1 Introduction 34-36

3.5.2 Historical Background of Locarno classification 36

3.5.3 Structure of the classification 36-37

3.5.4 Purpose of the Locarno classification 37

3.5.5 Advantages of Locarno classification 38

3.5.6 List of classes of goods of Locarno classification 38-40

3.5.7 Limitations of Locarno classification 40

3.6 The Agreement on Trade-Related Aspects of Intellectual Property

Rights (TRIPs), 1994 40-42

3.6.1 Introduction 40-41

3.6.2 Specific provisions 41-42

3.7 Conclusion 42

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CHAPTER-IV

DESIGN UNDER INDIAN LAW

4.1 Introduction 43-44

4.2 Overview of Design law in India 44-53

4.2.1 Definition of design 44-48

4.2.2 Nature and Scope of Industrial design law 48-50

4.2.3 Objective and purpose of Design Act, 2000 50-51

4.2.4 Salient Features of Design Act, 2000 51

4.2.5 Functions of Industrial design 51-52

4.2.6 Advantages of Industrial Design Rights 52

4.2.7 Significance of protection of Industrial design 52-53

4.2.8 Subject-matter of Industrial Design 53

4.3 Registration of Design under Design Act, 2000 54-61

4.3.1 Introduction 54

4.3.2 Essential conditions for registration of designs 54-58

4.3.3 Procedure for registrations of Designs 58-61

4.4 Copyright in registered Design 61-64

4.5. Overlap of Design Rights with Copyright 64-65

4.6 Cancellation of Registration of Design 65-66

4.7 Infringement of copyright in a design- Piracy of Registered Design 66-68

4.8 Legal Remedies available against infringement of Registered Design 68-69

4.9 Conclusion 69

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CHAPTER-V

TEXTILE INDUSTRY OF ASSAM: AN OVERVIEW

5.1 Introduction 70-71

5.2 Historical perspectives of Assamese textile Industry 71-73

5.3 Nature and significance of handloom weaving in Assam 73

5.4 Traditional textile of Assam 73-78

5.4.1 Mekhela 74-75

5.4.2 Chadar 75-76

5.4.3 Riha 76

5.4.4 Gamocha 76-78

5.5 Mode of production of textile in Assam 78-81

5.5.1 Raw materials 78

a) Muga Silk 78-79

b) Pat Silk 79-80

c) Eri Silk 80-81

d) Cotton Silk 81

5.5.2 Looms and Accessories 82-83

5.5.3 Dyes and dyeing practices 83-84

5.6 Traditional designs used in Assamese textile 84-88

5.6.1 Types of Designs used in Traditional textile of Assam 84-85

1. Kingkhap Design 85

2. Kaziranga Design 85-86

3. Gamkharu Design 86

4. Japi Design 87

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5. Junbiri Design 87

6. Gach pat design 88

5.7 Mode of preservation of design 88-89

5.8 Law and policy framework in Assam’s textile sector 89-91

5.8.1 Ancient Period 89-90

5.8.2 Current scenario 90-91

5.9 Conclusion 91-92

CHAPTER- VI

ANALYSIS OF EMPERICAL STUDY IN RELATION TO DESIGN ACT, 2000 IN

CONTEXT OF ASSAM’S TEXTILE SECTOR

6.1 Introduction 93

6.2 Significance of the study 93-94

6.3 Data Sources 94-95

6.4 Questions forwarded during Questionnaire and Interview Survey 95-96

6.5 Responses from the respondents 96-109

6.5.1 Questionnaire survey 96-102

6.5.2 Interview survey 102-109

6.6 Analysis of the study 109-110

6.7 Conclusions 110-111

CHAPTER- VII

CONCLUSION AND SUGGESTION 112-114

BIBLIOGRAPHY xiii-xvii

APPENDIX

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1

CHAPTER- I

INTRODUCTION

1.1 Introduction Industrial Design Rights is a part of the intellectual property rights that provides the rights of exclusiveness to the visible designs of objects like textile, jewellery, furniture, flower vase or any other decorative items that are usually not popular utilitarian. Design protects design of the industrial object as well as its appearance. It aids in constructing any material or item much attractive and appealing resulting in growing trading viability of product and help in increasing its market eventuality.1 Human beings are creative and that creative tendency derives inspirations from nature. This creativity leads to designs that are unique in nature and force the human soul towards its beauty since it appeals to the finer senses and the eye. The Industrial Design Act, 2000 essentially protects the elements of design which can be judged only by the eye.2 A Design is something that is applied to an object and is not the object itself. Design applied to an object ought to be something that to be provided to the consumer as a finished goods. As Intellectual property is of two-fold nature, so the rights granted on a design varies from country-to-country in aspects of both national as well as international arena. Any artistic creation possesses designs rights as well as copyright over it. Design law provides provisions of protecting any article in national as well as international arena, and in order to acquire protection registration of such design is essential under law. Designs on textile play a significant role in modern textile industry as an inevitable part. With advancement of technology new innovations related to textile such as designs, colour, textures are constantly evolving from time-to-time. Moreover textile industry of Assam i.e. silk industry is not only culture of the state but a tradition that equip into socio economic form of the people. The accessible traditional textile designs of Assam have sufficient scope of being studied in relation to its natural symbol, when modified with modern designs itself creates uniqueness which have the potential to be protected under section 2 (d) Industrial Design Act, 2000.

1 E.T. Lokganathan, “INTELLECTUAL PROPERTY RIGHTS (IPRS) TRIPs AGREEMENT AND INDIAN LAWS”, 1st ed. 2012, pp. 128. 2 Mathew Thomas, “UNDERSTANDING INTELLECTUAL PROPERTY”, 1st ed. 2016, pp. 339. 2

The present research work relates to the demands of increased visual attractive senses and how a designer or other peoples associated with the textile sector plays a significant role in consumer demand scene for mass production. In designing a garment, a designer not only forms an idea, prepares original work to produce it, but also accountable to fulfill the desired needs of the consumers as consumer’s satisfaction is his/her success of work. Such creativity is awarded by the Design Act, 2000 by granting exclusive right to the design holder to exploit his work commercially and to prevent other from violation of his right. As textile traditional design of Assam is pride of the state, when such traditional designs are created in another form of creativity that can be judged only by eye and includes “the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to”3 are eligible to be protected under the Act. Thus, through this paper researcher attempts to find out the value of design law among the peoples associated with Assam’s textile sector carrying out an inter-disciplinary study. The researcher efforts to find out awareness of the law among the engaged people and the loopholes in the textile design sector of the state involving the interfaces between law, history and culture.

1.2 Statement of Problem 1. Designers and other people engaged in business of textile sector of Assam are unaware of their rights granted under Intellectual Property Rights. 2. They are unaware of the existence of the Design Act, 2000 under which they can protect their creativity by registering it. 3. Continuance of duplications of works by others, and no measures are taken by the design holders and peoples engaged therein to prevent it.

1.3 Aims and Objectives 1. To study whether people engaged in business of textile sector of Assam are aware of Intellectual property rights. 2. To study whether designers have registered their design creations.

3 Section 2 (d) of Design Act, 2000. 3

3. To study about the designs used in the textile along with their possible socio-cultural implications. 4. To study about the mostly used designs and design process in textile. 5. To study whether any precautions are taken beforehand to protect the designs.

1.4 Research Question 1. Whether Design Act, 2000 is applied in Textile designing sector of Assam? 2. Whether unauthorized replication and reproduction of designs can be protected?

1.5 Hypothesis 1. People engaged with textile sector of Assam are unaware of Design Act, 2000 under Intellectual property law. 2. Duplication of artistic design work is a major setback in Assam’s textile sector.

1.6 Research Methodology The research methodology adopted in this study is partly doctrinal method and partly empirical method. The doctrinal method includes primary and secondary data. In primary method, researcher has referred various relevant books, journals, articles available in the library of National Law University, Assam. In secondary method researchers have referred to online legal data base available in the library of National Law University, Assam. Apart from this, the researcher has also referred to various online web sources to gather more information in regard to its research work. The empirical method includes Interview method and Questionnaire method. Interview method: This method is one of the oldest forms to gather information relating to the study. It is a verbal method of securing data that holds a conversation with a purpose. The researcher has conducted the face-to-face interview process with the person being interviewed on the designed questions to obtain the relevant answers to the research problem of the study. Questionnaire method: This method is one of the most suitable methods for study of the socio-legal problems. In this method, list of questions are 4 drafted to be answered by people to acquire the facts and information about their views. It is used to obtain knowledge about facts known to the informant.

1.7 Scope and limitation The researcher in this study has focused on “Expounding Design Act, 2000 in context of Assam’s textile sector”. The research study has been limited to the designers and boutique of Guwahati and to entrepreneurs of Sualkuchi of Kamrup district.

1.8 Literature Review

As per to my understanding, in any study, the actual research of a topic begins with an extensive review of the available relevant literature in the subject realm. As a result a thorough study of the existing review of the literature has been carried out in the area of expounding Design Act, 2000 in context of Assam’s textile Sector in order to understand in depth of my research problem and also the topic in its entirety. Below provided a complete review of various research books, articles and other relevant literature-  Books 1. Dr. M.K. Bhandari (2012) in his book “Law relating to Intellectual Property Rights” is an outcome of intense study made by the author, long teaching and research experience of the subject and continuous participation and interaction of the author with several legal scholars, lawyers, scientists, entrepreneurs who are one way or other concerned with the intellectual property system. All the facets of intellectual property have been discussed in this book with considerable details with coverage of latest international law and national law of each subject. 2. J.P. Mishra (2011) in his book, “An Introduction to Intellectual property Rights” states that this book is an effort to introduce some of the fundamental concepts of IP Law. The chapters of this book contains an introduction to the concept under discussion, the history of its evolution and growth as a legally protectable right, international efforts and in particular legal mechanism developed in India for the purpose. Besides, some landmark cases have also been discussed to enable the reader to have a clear picture of the principles involved. 3. T. Ramappa (2010) in his book, “Intellectual property Rights Law in India” states that this book contains the basics of the legal position on intellectual 5 property rights in India, referring to comparative law in other major countries and applicable provisions of TRIPs, which it is expected would serve any researcher or teacher in Intellectual property rights and one studying the subject at a university. 4. Dr. B.L. Wadehra (2014) in his book “Law relating to Intellectual Property” has summed up almost every aspects of law relating to intellectual property with adequate exegesis and court rulings. This book aims to meet the needs of law students, lawyers as well as academicians. This book covers detailed study of all the forms of intellectual property as well as conventions and landmark judicial pronouncements. 5. Dr. Jayanta Lahiri (2009) in his book “Lectures on Intellectual Property Laws” is a book that refers to relevant Indian National and foreign judgments, delves in the concepts of various “Intellectual property rights”, their nature and limitations, the procedure of acquiring and enforcing those rights under copyrights Act 1957, patent Act, 1970 (as amended in 2005), Trademarks Act 1999, the Design Act, 2000 and the Geographical indications of goods (registration and protection) Act, 1999. 6. E.T. Lokganathan (2012) in his book “Intellectual Property Rights (IPRs) TRIPS Agreement an Indian laws” interprets and examines various facets of the TRIPS Agreement and correspondent Indian laws for its implementation. 7. Mathew Thomas (2016) in his book “Understanding Intellectual Property” provides the fundamental principles of Intellectual property in a clear, concise and accessible manner. 8. M.M.S. Karki (2009) in his book “Intellectual Property Rights- Basic concepts” refers about the creativity, intellectual creations, value of creativity, innovation and importance of protecting creative works. This book aimed to nurture an interest in intellectual property by providing knowledge of IP that will be useful in intellectual property education programmes of various governments. 9. Ashwini Kumar Bansal (2012) in his book “Designs Law” attempts to discuss and analyze, in depth all issues on designs and is a commentary on the 2000 Act by incorporating all references to the 1911 Act to present a link between the pasts and upcoming case laws under 2000 Act. 10. V.K. Ahuja (2015) in his book “Intellectual Property Rights in India” attempt to discuss and analyze the Acts in depth covered under IP. It also discusses know-how and licenses to give an overall picture of the Indian law on IPRs. 6

11. S.K. Singh (2009) in his book “Intellectual Property Rights Law” discusses every form of Intellectual Property Rights in detail. It tried to provide depth knowledge of Intellectual property Rights as a whole. 12. Raman Mittal (2011) in his book “Licensing Intellectual Property Law & Management” offers an integrated analysis of the law pertaining to licensing of Intellectual property. Although the main concern of the book is with Indian law, it has a comparative dimension as well. Also provides for the critical examination of the subject matter the aid of relevant international materials and cases decided by foreign courts is taken. 13. Ananth Padmanabhan (2012) in his book “Intellectual Property Rights Infringement and Remedies” focused on usable practical information, rather than the usual theoretical bases for legal principles. This book quotes extensively from Indian judgment and also provides references to compatible foreign judicial precedents that will favor one who require a quick, concise and ready reference on the extant judicial treatment of intellectual property issues. 14. Labanya Mazumdar (2013) in his book “Textile Tradition of Assam-an empirical study” attempted to give a methodological account of the textile tradition in Assam. It’s unique features, historical prospects, past and present status of textiles in terms of its continuity and change, socio-cultural and economic contexts of weaving are the major issues taken into account for discussion. In view of the emerging trend of transition in textile production, this book 15. Dipendra kumar Sarmah (2012) in his book “Status of women engaged in the handloom industry in Assam” serves as a reminder that the native textiles of various ethnic groups in Assam are not merely a material, but a reflector of socio-cultural life of the people of this area and status of women weavers in handloom industry. 16. Sanjita Chetia (2006) in her book “The Assamese Handloom and Textile Tradition” portrays the handloom sector and textile tradition of Assamese society and has provided detailed description of the textile sector of Assam with aid of statistical data. 17. Henry D. Teegarden (2014) in his book “Designs and utility models throughout the World” discusses about the various national laws on design and utility model protection that offer rather a confusing picture with the exception of certain commonwealth of national countries, and those former colonies subsequent to 7 independence adopted mutates mutandis the laws of the former mother country, the design and utility model laws. 18. Rt. Hon. Sir Robin Jacob, et. Al (2004) in their book “A guidebook to Intellectual Property” explains the basis principals in a simple and unfussy way to give a real flavor of things of work in practice. It covers the ‘core’ subjects of all forms of IPR along with number of developments such as database rights.  Articles 1. Niloy Kumar Gupta (1999) in his article, “Overview of the Indian Industrial Design Law and practice” provides an Overview of the Indian Industrial Design Law and addresses the various facets of registration of industrial design, facts and procedures. 2. Alexander Carter-Silk and Michelle Lewiston (2015) in their article, “The Development of Design Law Past and Future” has assesses the effectiveness of design law as recognized by the industry to have a better understanding of system of Design law. 3. Balaji P Nadar, in his article “Evolution of Designs Act in India & Protection of Industrial Design under International IPR Regime” has provided a detailed study of evolution of design law and protection of Design law under international law in current scenario. 4. Anil B. Suraj(2008), in his article “Patent: Paris Convention for the Protection of Industrial Property” has attempted to provide detailed overview of Paris convention For The Protection Of Industrial Property, 1883 and its act of protection to forms of Intellectual property rights. 5. Silvia Vincenti (2008), in her article “The Hague Agreement Concerning the International Registration of Industrial Designs and recent developments, including the accession of the EC to the 1999 Act of the Hague Agreement” provides detailed overview of Hague Agreement Concerning the International Registration of Industrial Designs and talks about development of the accession of the EC to the 1999 Act of Hague Agreement in detail and further hopes that new Contracting Parties will accede to the 1999 Act, and only to it, and that the Contracting Parties to the Hague System which are not yet party to the 1999 Act will also accede to it. This will contribute to a significant simplification of the Hague System since the 1999 Act. 8

6. Vidita p. khutkar, in her article “Nature and subject matter of industrial design” mainly focuses on the nature and purposes of Industrial Design and the essential conditions required to fulfill the registration of an article to obtain protection under Design Act, 2000. 7. Ishita chatterjee, in her article “Intellectual Property Rights and Traditional Knowledge” analyzed about the connection between genetic resources, Traditional Knowledge and Intellectual property rights in the negotiations of several international organizations. And emphasized about the participation by local communities in WTO and WIPO which is very limited. 8. Jitendra Nath Saikia (2011), in his article “A Study of the Working of the Handloom and Textile Sector of Assam” discusses how Handloom textile cottage industry plays an important role in the socio-economic life of Assamese people, particularly in rural areas of Assam. It is one of the major ways of earning livelihood next to agriculture of Assamese people. As such the Govt. of Assam is paying more importance for the upliftment of socioeconomic status of the female by launching various schemes relating to handloom and Textile through the Department of Handloom and Textile. 9. Kajal Sharma (2014), in her article “Weaving in Assam” refers the status of weaving textile in Assam. She also discussed the conditions of weaving sector of ancient days by comparing it to modern era. Also talked about the importance of traditional custom i.e. weaving of Assam. 10. Naveen v. Padaki, et al., (2013) in his article “Traditional Textile designs and costumes of Assam” refers that “Textile designs from Assam have been based on inspirations from the epics and Mother Nature, with prominent geometrical/ floral designs produced in brilliant shades for the ethnic costumes. Brindavani cloths were the most famous traditional Assamese fabrics produced with designs depicting the different incarnations of God Vishnu. Major textile designs presently used for ethnic fabrics include Kimkhwab, jonberi, Miri and Hatipati designs consisting of geometrical, floral, inspired by nature and traditional festivities. Evolution of traditional textile design in the dominant handloom sector has been witnessed during couple of decades post Indian independence period, with adaptation of jacquard fitted looms. Major traditional costumes of the region include Mekhla- Chadar, dhoti-kurta, dokhna, sarees, riha and japi which profusely use the traditional Assamese designs for fabric ornamentation.” 9

11. Ravi Mokashi, in his article “Silk weaving Tradition of Sualkuchi, Assam” discusses about the Manchester of Assam i.e. Sualkuchi, which is a centre of textile sector of Assam. He presented in this article whole process of weaving along with detail explanation of designs used in the traditional garments of Assam. 12. Bikash Singh (2017), in his article “Assam to formulate textile policy for giving a major fillip to handloom & textile sector in the state” discusses about the initiatives undertaken by Government of Assam for upliftment of textile sector of Assam through enactment of incentives and policies.

1.9 Chapterisation The researcher has designed its research work in various different chapters. The researcher has tried its level best to interpret the topic under the mentioned chapters. The design of the research paper is divided into following seven chapters: Chapter I consists of brief introduction to the entire subject matter of the study. It tried to interpret the statement of problem, research aims and objectives, scope and limitation of the research work, research questions, hypothesis, research methodology, research literature review followed by the chapterisation of the paper. Chapter II focuses on the historical perspectives of industrial Design rights. In this chapter the researcher tried to bring into light the development of design law in prospect of Intellectual property Rights. Chapter III discusses about the international Development of Design law. This chapter discusses how a design can be safeguarded at international level. It talked about the different procedures available to protect its design under different categories of classes, laws available to a national citizen who has seeks it protection at international level. Chapter IV discussed in detail about the Industrial Design Act, 2000, when applied in commercial purpose. It also talked about the requirements needed to seek registration of a novel design and the procedures to register a design. It also discussed the protections available to design right holder. Chapter V provides an overview of Assam’s textile sector. This chapter attempted to provide comprehensive information related to the textile sector of Assam 10 and has also made a comparison of the laws available between the ancient period and current scenario of the textile industry of Assam. Chapter VI discussed in detail about the conducted empirical study in the research work, about the significance of the research study, sources of data collection and analysis of the collected data. Chapter VII is the concluding chapter based upon the research study that has been carried out. Legal regime in regard to the subject matter of the study has been carried out to point out the lacunas and lackage that exist and which are to be tackled through effectual enforcement to make the textile design sector of Assam more successful. Suggestions are built up based upon the lacunas that are form to exist during the course of study.

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CHAPTER-II

HISTORICAL PERSPECTIVES

2.1 Introduction When man emerged out of nomadic period, he evolved a great taste for things which were somewhat more simplify but slowly and steadily he made attempts to make himself and goods around him, look good. He had developed an aesthetic sense as starvation was no more concern in his life and such aesthetic sense found its way in the living style of man. The life was no more for the sake of living but to be so lived and to make out best of it. The things around not only had its usefulness but also had the aesthetic appeal. The expressions were no longer restricted to the use of few words to keep the conversation going but they were required to have the words used in all their magnificence, charm and so on.4 It was only craftsman who prior to industrialization, created designs to which society entrusted both emotional as well as financial merit. The value assigned to design was well versed by the profit of society obtained from them. For example- when a textile industry is flourishing, the design executed to the fabrics are recognized to be of particular value. As such, the idea of industrial design occurred since the manufacture of valuable articles. From the period of ancient civilization, tremendous efforts had been made out towards the ornamentation and contour of the articles self made by the craftsman.5 Originally designs were protected as artistic creation in mass- produced articles (shape or applied decoration or the like) under the copyright law but slowly and steadily society began to recognize the value of design in different forms of art. The main mechanism for protection was expected to be by a system of design registered at the office of Patent- like patent for an invention.6 And as there emerge technological innovation, copying of different forms of art began to take place and so law began to protect such design that were at peril at times under copyright protection. Moreover the Industrial revolution of 19th and 20th century indicated a new age of designs that were produced in mass but technology made its production much

4 J.P. Mishra, AN INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS, 2nd ed. 2009, pp.179-180. 5 Niloy Kumar Gupta, “Overview of the Indian Industrial Design Law and practice” 4 JIPR (1999), p. 16. 6 Rt. Hon. Sir Robin Jacob, et al., A GUIDEBOOK TO INTELLECTUAL PROPERTY, 5th ed. 2004, p. 69. 12 easier. Such posed a challenged to legislature and judiciary to protect the creativity of design by enacting an effective legislation.7 An effectual system of protection provides ease and helps the public at large by advancing fair competition and trade practices. As man has become more and more modern with pace of time, the taste for design has increased as well among them. Thus, designs have been the core of human art and craft, trade and commerce in lives of human.

2.2 Historical background of Industrial Design Rights 2.2.1 Origin of Design Rights Before uncovering history or evolution of design Act in India, it is necessary to have knowledge regarding “Design Act of United Kingdom” as they are the precursor in protecting the industrial design and Indian laws on design are root of their legislation in course of the colonial period. Its source of origin can be dates back to United Kingdom with ‘Designing and Printing of Linen Act, 1787’ that came into force on 1st June 1787 as the outcome of the mechanization in textile field as a part of technological revolution, the first Act to discuss about the matters of copyright in Industrial design. This Act especially dealt with designs in textile materials such as ‘cottons, linens, calicos and muslin’. By the virtue of this Act, the owner were granted with exclusive rights of designing and reprinting the same for a two months periods holding from the date of first publication along with the conditions that the owners name must be mentioned in each piece. But later time, period was extended to three months in 1794 i.e. after seven years. As this Act provided with limited protection of copyright in design, but slowly and steadily registration scheme of design began to recognized in 1830s and 1850s.8 Later in the year 1839, ‘the copyright and Design Act’ was passed that extended the provisions of 1787 and was expanded to cover design for printing other woven fabrics that gave the base of modern design. This Act provided for protection which consist of ‘wool, silk or hair and to mixed fabrics’ i.e. made up of any of the two stuffs whether ‘linen, cotton, wool, silk or hair’. This Act provided protection to

7 Alexander Carter-Silk and Michelle Lewiston, “The Development of Design Law Past and Future”, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/3103 80/ipresearch-designlaw-201207.pdf (April 14, 2018). 8 Balaji P Nadar, “Evolution of Designs Act in India &Protection of Industrial Design under International IPR Regime”https://www.scribd.com/doc/53318556/Evolution-of-Designs-Act-in-India- Protection-of-Industrial-Designs-under-International-IPR-Regime (April 19, 2018). 13 each and every new and genuine design in textile. In fact this Act was not only limited to textile but extended its protection beyond textiles by permitting protection for manufactured articles which provides any new or original design, structure, configuration of a manufactured article could be protected. This Act also introduced the system of register of design by the Board of Trade and this responsibility was transferred from the Board of Trade to Patent office in 18759 that requires any new design prior to its publication must be registered under the Act for protection which distinguishes the registered design rights from that of the copyright in the unregistered design and to utilize the benefits under he given Act.10 Then, the Design Act, 1842 was enacted which repealed the earlier statute of 1839 by consolidating all the previous Acts by providing more effective protection and increasing the remedies for violation. Thereafter in 1883, a ‘Patent, Designs and Trademark Act’ was passed by parliament of United Kingdom that realized the importance of safeguard of Designs by many countries and as such, the countries began to enact legislation for protecting Industrial design.

2.2.2 Recognition and its importance The Registered design Act, 1949 governed the law relating to registered design and separated registered design completely from patents which was further modified by a concise act in 1968. Still the 1949 Act is in force but been amended by the ‘Copyright, Designs and Patents Act of 1988’. This Amendment Act was generated to limit down the lavish nature of design rights and was revised on December 9, 2001 to include ‘European Directive’ Design. Prior to 2001, the Directive directs all the member countries of European Community (EC) to execute the directive to provide the registered proprietor of design an absolute right to permit or to restrict others from using, making, selling their design in any manner, but the proprietor cannot prohibit the private/personal and non-commercial use as the period of protection was extended to maximum 25 years. However in the year 2002, EC has set up a design community in order to provide uniform industrial design rights. The design community grants protection that involves designs that never creates a different influence on the informed user, by taking the amount of freedom of the

9 M.M.S. karki, INTELLECTUAL PROPERTY RIGHTS- BASIC CONCEPTS, 1st ed. 2009, pp. 189. 10 Supra note 9 at 5. 14 designer into consideration. It can also protect the design in foreign countries if business is held in various European countries.11

2.3 Growth of Design Act in India 2.3.1 Development of Design law in India At the period of British India, legislative protections for designs were followed in order to protect the design held by the Britishers in the then British India. As India independently has made fast advancement in the field of industry and technology, has also met with various difficulties and challenges of a violent and competitive market worldwide and has recognized the vital importance of design to market the products of industry.12 ‘The patterns and Design Protection Act, 1872’ was the first legislation on Design in India enacted during British rule in 1872. This Act for the first time had made provisions for providing the inventors of India related to new patterns and Design, the exclusive right of making, selling and using the invention in India or grant permission to others to do so for a limited period of time i.e. of 3 years. Later, such Act was followed by ‘the Inventions and Design Act, 1888’ which was enacted to strengthen and review the law related to the protection of inventions and designs that includes separate provisions in separate part for designs. Again such ‘Act of 1888’ was repealed by ‘The British Patent and Design Act, 1907’ which supported and became the very basis of ‘Indian Patent and Design Act, 1911’13 when a separate patent Act, 1970 was enacted related to provisions of Patent, it repealed ‘Indian Patent and Design Act, 1911’ and the Act was assigned with a new name as ‘Design Act, 1911’and substantial advancement has been carried out in area of science and technology. Hence, legal protection was made more systematic in order to confirm the protection of registered design. Section 2 (4) of the ‘Indian Patent and Design Act, 1911,’ provides copyright protects registered design as “Copyright means the exclusive right to apply a design to any article in any class in which the design is registered”.14 This Act was in continuance dealing with Indian Design law till the Design Act, 2000 was enacted which came in force in 11th May 200115 which

11 id 12 Ashwani Kr. Bansal, DESIGNS LAW, 1st ed. 2012, pp. 4-5. 13 V.K. Ahuja, INTELLECTUAL PROPERTY RIGHTS IN INDIA, 2nd ed. 2015, pp. 205. 14 Section 2 (4) of the Indian Patent and Design Act, 1911. 15 M. K. Bhandari, LAW RELATING TO INTELLECTUAL PROPERTY RIGHTS, 3rd ed. 2012, pp. 213. 15 continues some provisions of patent Act, 1970 by incorporation. As there is no useful model law in India, the formalities to be taken note for acquiring registration of design including physical essentials, prescribed forms and fees are governed by the ‘Design Rules, 2001’ as amended by the ‘Design (Amendment) Rules, 2008.’16

2.3.2 Efficacy of colonial Design Act, 1911 The ‘Design Act, 1911’ was passed by the then British governments in India, since then substantial amendments have been made in Indian Designs Act. This Act defines design as “the features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye”17 and has excluded the term ‘trademark’ and ‘property mark’ from inclusion in Design. Since the enactment of this Act significant advancement has been carried out in the field of science and technology. In order to confirm about the effective protection and to promote industrial designs, the legal system of protection requires being more efficient. However, under this Act, there are some required pre-requisites elements which are required to be fulfilled to have a design registered in India. They are as under: a) The design must be new or original which is not previously published in India.18 b) Design can be registered to one or more classes of goods in regard to his own interest, and may register his similar design in different classes.19 c) Design must be appealable to and must be capable of judged solely by the eye.20 d) When a design is registered under this Act, the owner of the design shall have copyright in his design for the period of 5 years from the date of registration which can also be extended by filing an application before the registrar accompanied with a prescribed fees before the expiry of the five years tem.21 Thus, under this Act, the owner of the registered design has the absolute right to use his design so registered appropriate to any article. This Act

16 Henry D. Teegarden (ed.), DESIGNS AND UTILITY MODELS THROUGHOUT THE WORLD, 1st ed. 2014, p. 66-2. 17 Section 2 (5) of the Indian Patent and Design Act, 1911. 18 Section 43, ibid. 19 Supra note 12 at 7. 20 Section 2 (5) of the Indian Patent and Design Act, 1911. 21 Section 47, ibid. 16 requires that “such article before delivery or sales must be marked with prescribed words or figures, denoting that the design is registered; and, if he fails to do so, the proprietor shall not be entitled to recover any penalty or damages in respect of any infringement of his copyright in the design unless he shows that he took all proper steps to ensure the marking of the article, or unless he shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.”22 This Act requires that except textile design, the registered proprietor of design should mark the item with the word “Regd” or “Registered” along with the registration number. And if the registered proprietor failed to mark, he would not be able to obtain protection and would not be able to recover his damages from the infringer.

2.4 Protection of Industrial Design under the Design Act, 2000 The Design Act, 2000 got assent of the president on May 25, 2000 and came into force on May 11, 2001 is an Act to consolidate and amend the law relating to protections of Designs. Under the Indian law, registered design can be protected under Design Act, 2000 which gives an absolute right to the design holder to make, sell and use article that incorporates the protected design and the registered holder of the design shall have ‘copyright’ in the design. Such design can be protected for a time period of 10 years but however it can be renewed for a period of 5 years by paying the stipulated fees.23 And to obtain such protection in India, one has to register his design under the said Act provided that the said design is new or original, not previously published in India, not contrary to public order.24 And once the protection period is complete, the design falls in the public domain and anyone can make use of it without any restrictions. As held in Lawson industries Ltd’s Appln25design Act, 2000 provides exclusive protection rather than mere protection against replication. However, registered design is regional. Any industrial design registered in India does not give protection in any other country and is effective only in India.26 In Microfibres, inc. v. Giridhar & co. & others27 it has been held that the design law is also based on the same principles as that to other monopolies by

22 Section 48, ibid. 23 Section 11 of the Design Act, 2000. 24 Section 5, ibid. 25 (1978) RPC 1 (7) (RDAT). 26 Supra note 12 at 7. 27 2006 (32) PTC 157 (Del). 17 providing limited time period to the monopolies and one can make use of them once such period of protection gets over and passed into the public domain. There was an another case related to protection of industrial design i.e. Bharat Glass Tube Ltd v. Gopal Glass works Ltd28 dispute was related to a registration of design applied in a glass sheet. The Supreme Court examined the evidence related to the prior publication of design as this case was an appeal for cancellation of registered design on ground of similarity design as alleged design applied in glass sheet already existing in England. The Court after examining and comparing both the designs upheld the decision of Calcutta High court as it arrived to the conclusion that both the designs are not same. However, in India at Delhi High court, for the first time international industrial designs registration were in conflict in Disney Enterprises Inc v. Prime House wares ltd.29 In this case Disney cartoon characters such as Mickey mouse, Minnie mouse, Donald duck were produced by a Mumbai based firm known as Prime house wares limited. The gigantic international entertainment Disney Company, who was the registered proprietor of the above mention cartoons, sues the Mumbai based firm for trademark infringement as the Prime house wares limited was selling goods by using Disney characters as their mark. The court observed that Disney Company’s trademark was registered under the Indian law but not the designs. Therefore the suit of trademark infringement was passed in favor of Disney Company and court passed the order to the Indian company to deliver all the infringing articles they possess to the Disney Company so that they could destroy the same and to pay amount of Rs. 50,000 as damages to the Disney Company within one week from the given order and if failed to pay within the stipulated time period then the company have to pay a huge amount of 20 lakhs.30 Therefore, the protection of industrial design is necessary as it encourages creativity and in turn helps in the economic growth of the country. The designs add commercial worth to the article by making it attractive. So in order to attract the customers, the manufacturer focuses on the designs of the article they manufacture. Therefore legal protection has become utmost necessary at any creative designs as protection ensures a fair return on investment; honest trade practices promotes aesthetically attractive products.

28 2008 (37) PTC 1. 29 CS(OS) 3032/2011. 30 Supra note 7 at 9. 18

2.5 Conclusion From the period of ancient civilization, applicability of designs in various materials was in use, but at that era economically it was not given its due importance. It was only after industrialization period, when society began to recognize the value of design in different forms of art. When industrial revolution indicated the age of design which were produced in mass easily through technology, then felt the recognition for protecting designs under legal perspectives and thus various legislations were enacted to protect the creative designs of a creator where Design Act, 1911 played vital role in protecting industrial design in various prospect which was later replaced by Design Act, 2000. Protection of designs also helps in economic growth of a country as it encourages one to create more unique designs applied in articles that ensures a fair return on investment, honest trade practices promotes aesthetically attractive products. Thus, present Design Act, 2000 plays a significant role in the lives of the proprietor which requires their designs to be registered under the Act. They have the exclusive control over their creative designs for a period of 10 years which could be extended to 15 years by paying the prescribed fees.

19

CHAPTER-III

INTERNATIONAL DEVELOPMENTS IN DESIGN LAW

3.1 Introduction The Intellectual property rights (IPR) is of dual nature which means it has both the aspects of International as well national. The rights of design are granted on the basis of country- by-country. The international protection of industrial design must not only be considered as a component of industrial property but also be as a component of copyright law, as some national laws are applied to designs of an artistic work. Generally industrial designs protection is restricted to the country in which protection is granted. But if the owner of a design desires to safeguard a design in another country, he must separately seek protection in each country under the respective relevant laws. If application has been made for registration of design in India, it provides protection only in India. Yet there is no provision where a single application will be enough to protect design rights internationally.31 But there are various international conventions that govern the basic standards of intellectual property protection in Industrial design. For design registration, an application made to Indian patent and design office that adequately initiate a priority date for a design application made in the countries making use of international conventions, Paris conventions and TRIPS read with local law of the country concerned.32

3.2 The Paris convention for the protection of Industrial property, 1883 3.2.1 Introduction Paris convention for protection of industrial property, 188333 is a first international convention at international level for protection of industrial property administered by World Intellectual property Organization (WIPO). This convention is the corner stone of the international system pertinent to all types of industrial property in broadest sense, including industrial design that provides protection to the individuals as well as to the commercial sectors of industrial property. This convention took the first initiative in protecting the works of a creator in other countries as well and requires the member countries to acquire minimum protection

31 S.K. Singh, INTELLECTUAL PROPERTY RIGHTS LAWS, 1st ed. 2009 pp. 299. 32 Supra note 12 at 11. 33 1883,the first and the earliest international instrument for the protection of Intellectual property. 20 for industrial properties.34 It was through this convention which establishes that same protection must be given to a creation as one would give to the national citizen of its own state.35 India being the signatory or member of Paris convention provides protection to the Industrial designs. The countries to which this convention applies constitute a union for the protection of Industrial property.36 In context of Industrial design, this convention was mainly designed to unify the norms of protection of design among the member countries.37

3.2.2. Historical Background of the Paris convention Paris convention was one of the first treaties related to the field of Intellectual property Rights. In 1873 and 1878 after the preparatory work, the convention was drafted at a diplomatic conference and this convention was first signed on 20th March, 1883 in Paris, France by 11 countries. It was amended at Brussels on December 14, 1900, at Washington on June 2, 1911, at The Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958 and at Stockholm on July 14, 1967 and amended on September 28, 1979.38 Currently, there are currently 177 member countries under Paris convention as of February 2017 that makes the convention one of the most broadly accepted worldwide treaties.39 This convention was formulated to remove the risk of inventor’s work being taken away and used in some other country where there would be free of protecting the invention.

34 Anil B. suraj, “Patent: Paris Convention for the Protection of Industrial Property, 1883 (Revised at Stockholm in 1967)”, https://www.bananaip.com/ip-news-center/protection-industrial-property/ (May 1, 2018). 35 Mighty Recruiter, “Information about the Paris Convention for the Protection of Industrial Property”, https://www.mightyrecruiter.com/recruiter-guide/information-about-the-paris-convention- for-the-protection-of-industrial-property/ (accessed on May 2, 2018 at 12:47 AM). 36 Article 1(1) Paris Convention for the Protection of Industrial Property, 1883. 37 Supra note 12 at 169. 38See WIPO document, Paris convention for protection of industrial property, http://www.wipo.int/treaties/en/text.jsp?file_id=288514 (accessed on May 1, 2018 at 1:32 AM). 39See WIPO document, “Contracting Parties to the Paris convention”, http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY&end_year=ANY &search_what=C&treaty_id=2 (accessed on May 2, 2018 at 1:40 AM). 21

3.2.3 Features of Paris Convention The distinguished features of Paris Convention are mentioned below: 1. Paris convention provides for equal protection of intellectual property as one protects the nationals of its own citizen.40 2. It directs the member states to give protection to industrial designs without any loss on the basis of incompetent to work or by cause of importation of materials equate to those which are protected. 3. This convention protects against unfair competition and false indications.41 4. In context of industrial design, this convention protects the industrial design in all the countries of the Union.42 5. It allows the creators to access into foreign markets for their works. 6. It provides special national industrial property service and a central office for the communication to the public related to various forms of intellectual property rights.43

3.2.4 Purpose of Paris Convention The main purposes of Paris convention are mentioned below: 1. It protects the various forms of creative works of Industrial Property. 2. To restraint unfair competition. 3. To protect agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.44 3.2.5 Specific provisions The Paris convention for the protection of Industrial property comprises of some specific provisions that deals specifically with industrial designs.

40 Article 3 of the Paris convention for the Protection of Industrial Property, 1883. 41 Article 10 and Article 10bis of the Paris Convention for the Protection of Industrial Property, 1883. 42 Article 5 quinquies of the Paris Convention for the Protection of Industrial Property, 1883. 43 Article 12 (1), ibid. 44 Article 1(3), ibid. 22

Article 2 of the convention states that “national treatment of industrial design and prohibits member countries from imposing any conditions of domicile on nationals of other countries, while considered for national treatment.”45 Article 4 (A) (1) of the convention states that “any person who has duly filed an application for the registration of an industrial design, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.”46 Article 4 (c) (1) of the convention fixes “the periods of priority as six months for industrial designs.”47 Article 5 quinquies of the convention sets out that, “Industrial designs shall be protected in all the countries of the Union.”48 Though Article 5 held nothing in regard to industrial design protection, yet each of the member countries may meet its responsibility in the Paris convention not only through specific provisions relating to industrial design but also through other way as of protection under copyright law or through unfair competition.49 Article 5 (B) of the convention states that, “The protection of industrial designs shall not, under any circumstance, be subject to any forfeiture, either by reason of failure to work or by reason of the importation of articles corresponding to those which are protected.”50 Article 5 (D) of the convention states that, “no indication or mention of the deposit of the industrial design, shall be required upon the goods as a condition of recognition of the right to protection.”51 Article 12 of the convention deals with procedural matters as that of provision of a special industrial property service which states as “Each country of the Union undertakes to establish a special industrial property service and a central office for the communication to the public of industrial designs.”52

45 Article 2, id. 46 Article 4 (A) (1), ibid. 47 Article 4 (C) (1), ibid. 48 Article 5 quinquies, ibid. 49 Pierre Maugue, “The International Protection of Industrial Designs under the International Conventions” 19 UBLR (1989), P. 393. 50 Article 5 (B) of the Paris Convention for the Protection of Industrial Property, 1883. 51 Article 5 (D), ibid. 52 Article 12, ibid. 23

Although national laws need that there should be a mark on the goods that are protected by industrial design under Paris convention. The existence of such a mark or mention may not establish for a condition of right to protection. If that were not the case then design right holders would be too heavily penalized in the occurrence of omission. However, the member countries are independent to specify in their respective laws of the nation, the other outcome of the omission of such an indicating mark or mention.53

3.2.6 General Provisions There are three general provisions laid down by Paris Convention for the Protection of Industrial Property, 1883 in regard to industrial property including industrial design. They are as under: 1. National Treatment: Under Paris convention, national treatment is obtained from Article 2 (1) of the convention that states as “Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.”54 Such is applicable to industrial design under Article 1(2) of the convention that states the protection of industrial property including industrial design.55 Under the principle of national treatment, “each member country must provide the same protections to the nationals of other countries relating to industrial property in the same way as it provide to its own nationals.”56 To deal with the problem of reciprocity, the member countries decided to comply with the principle of national treatment and any nationals can claim the application in any member country without any differentiation or biasness of domestic legislation as such is applicable to the nationals of the member countries of the Paris Union. Certainly, much more highly

53 43, id. 54 Article 2 (1), ibid. 55 Article 1 (2), of the Paris Convention for the Protection of Industrial Property, 1883. 56 Article 3, ibid. 24 beneficial protection conditions could be provided to the members of the other country nationals that provide much more confined protection.57 3.2.6.1 Exception to national Treatment: a) As national treatment is applicable to all forms of industrial property including industrial design, but the member countries of the Paris union are not confined under the convention to allow ‘national treatment’ to any new object for protection. b) The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction, which may be required by the laws on industrial property are expressly reserved.58 c) The provisions of the laws of each of the countries party to the Paris Convention relating to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property, are expressly reserved.59 2. Right of Priority: Article 4 of the Paris convention for the Protection of Industrial Property, 1883 states the right of priority which is a significant provision under this convention that applies equally to all the industrial properties including industrial designs as well. (1) “Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed. (2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.”60 The Right of Priority means that on basis of regular first application filed in one of the contracting states, the applicant may within certain period of time i.e. 6 months for industrial design,61 may apply for protection in any of the other contracting states. An application filed later on in other contracting States

57 Supra note 49at 395. 58 Article 2 (3) of the Paris Convention for the Protection of Industrial Property, 1883. 59 ibid. 60 Article 4 of the Paris Convention for the Protection of Industrial Property, 1883. 61 Article 4 (c) (1), ibid. 25 will be considered as if they will be had been filed on the date of the first application. In other words, it means the later filed application will have priority right over applications that may have been filed during the stipulated period of time by other persons for same industrial designs.62 The latter application being based on the first application will not be affected by any event that may have taken place in interval, such as any publication or sale incorporating the industrial design.63 Moreover, one of the benefits of priority right is that when an applicant desires to acquire industrial design protection in various numbers of countries, he/she has to decide within six- month period in which country he/she desires to acquire such protection. And within those stipulated time period the applicant can arrange all procedures with all required great care without any distress of being affected by other.64 3. Temporary protection at International exhibitions: Under Article 11 of Paris convention for the Protection of Industrial Property, 1883 states that (1) “The countries of the Union shall, in conformity with their domestic legislation, grant temporary protection to patentable inventions, utility models, industrial designs, and trademarks, in respect of goods exhibited at official or officially recognized international exhibitions held in the territory of any of them. (2) Such temporary protection shall not extend the periods provided by Article 4. If, later, the right of priority is invoked, the authorities of any country may provide that the period shall start from the date of introduction of the goods into the exhibition. (3) Each country may require, as proof of the identity of the article exhibited and of the date of its introduction, such documentary evidence as it considers necessary.”65 The key purpose of this principle is to prevent revelations of a product that might cause damages to the novel work of design. This temporary protection measures were taken by various countries under Paris Union. Article 11 of the convention bestows “temporary protection at international exhibitions which may not exceed the priority period that was set forth in Article 4 of the convention if later

62 The same propositions apply to patent for invention, utility model, and mark. 63 Supra note 10 at 679. 64 Supra note 49 at 395-396. 65 Article 11 of Paris convention for the Protection of Industrial Property, 1883. 26 the right of priority is invoked, the authorities of any country may provide that the period should start from the date of introduction of the product into the exhibition.”66 However, the common rule under the Paris convention for the Protection of Industrial Property, 1883 is that industrial design should be protected in each contracting states, and the protection may not be forfeited on the ground that the articles included the design and not manufactured in that state.67

3.3 Berne Convention for the Protection of Literary and Artistic Works, 1886 3.3.1 Introduction Berne convention for the Protection of Literary and Artistic Works was adopted in September 9, 1886 in Berne, Switzerland and was amended on September 28, 1979. It is an international agreement that deals with the protection of artistic and literary work. Its main aim is to protect the rights of the authors. This convention which aimed at protecting literary and artistic work includes design, although impliedly, under the category of ‘works of applied arts’, while defining the ambit of ‘literary and artistic works’.68

3.3.2 Specific Provisions Article 2 (7) of the convention is however more specific that gives freedom to the member countries “to determine the extent of the application of their laws to works of applied art and industrial designs’. It further provides that ‘Works protected in the country of origin solely as designs shall be entitled in other member countries to only that special protection which the concerned member countries grants under its own laws, failing which the design shall be protected as an artistic work”.69 However, the Berne convention under Article 7 (4) gives freedom to member countries to fix the period of protection, but such period should be for “term that shall last at least until the end of a period of twenty-five years from the making of such a work.”70

66 Article 11 (2), id. 67 Supra note 13 at 680. 68 Article 2 (1) of Berne Convention for the Protection of Literary and Artistic Works, 1886. 69 Article 2 (7), ibid. 70 Article 7(4), ibid. 27

3.4 Hague Agreement concerning International deposit of Industrial design, 1925 3.4.1 Introduction Hague Agreement concerning the International Deposit of Industrial Designs, “henceforth renamed as The Hague Agreement Concerning the International Registration of Industrial Designs”71 is one of the international agreements governed by WIPO. It needs to be expressed at the very beginning that this agreement is a procedural system that seeks international registration for protection of industrial design which does not determine the context for protecting a design and the rights that emanates from the protection except the minimum duration of protection.72 This agreement offers international registration system that makes possible for acquiring industrial design protection in number of states and intergovernmental organization (both are referred as contracting states) by filing a single international application in International Bureau of the World Intellectual Property Organization (WIPO) that may comprise more than one design and at most, one hundred designs,73 provided the design belong to the same class of international classification. Any natural or legal person from contracting state or one having his domicile or real and effective industrial or commercial establishment in one of those states may become an applicant for the purpose of international deposit (filing) of industrial designs.74 Such deposit must be either in any one language i.e. English, French or Spanish75 upon payment of prescribed fees either directly in WIPO through electronic filing interface or through national office of the contracting states and must be in single currency.76 “The international Bureau maintains an international register and publishes the international Designs Bulletin77 which is one of the official publications of the Hague Convention” that contains registration of new international designs, its renewals and

71 Article 1 (i) of the Geneva Act, 1999. 72 Silvia Vincenti, “The Hague Agreement Concerning the International Registration of Industrial Designs and recent developments, including the accession of the EC to the 1999 Act of the Hague Agreement”, http://www.ecta.org/IMG/pdf/vincenti_1_.pdf (May 16, 2018). 73 WIPO Intellectual property handbook, p. 232. 74 Supra note 4 at 183. 75 Rule 6 of Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement (as in force on January 1, 2017). 76 Article 5 of The Hague Agreement Concerning the International Registration of Industrial Designs (Geneva Act of July 2, 1999). 77 Rule 1 (ix) of Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement (as in force on January 1, 2017) defines Bulletin as, “the periodical bulletin in which the International Bureau effects the publications provided for in the 1999 Act, the 1960 Act or these Regulations, whatever the medium used.” 28 any modification concern to international registration of design.78 Once the industrial design is registered internationally, it obtains the same protection in each of the contracting states concerned as provided by the national laws to its own state until and unless under certain circumstances rejected by national office expressly.79 However, this agreement does not define the term what industrial design is, rather it is the contracting states who are free to define what industrial design is that will be indicated in their respective domestic legislations.80 Thus, this agreement stipulates a medium for acquiring, enabling and managing rights of design in the countries that are member to the Hague union by filing for a single international registration with individual effects in the contracting states that makes easier for the users to save time and money by allowing them to obtain design protection in multiple number of markets.81 Currently there are 68 contracting states that are party to the Hague union that concerns protection of international industrial designs.82

3.4.2 Historical background of Hague Agreement Hague Agreement is an international agreement that was concluded in 1925 which was amended in 1999, regulates international designs. In the year 1934 it was amended at London with Articles 1 stating: “Nationals of any of the contracting countries, as well as persons who, upon the territory of the restricted Union, have satisfied the conditions of Articles 3 of the General Convention, may, in all the other contracting countries, secure protection for their industrial designs by means of an international deposit made at the International Bureau of Industrial Property at Berne”83 and in the year 1960 at Hague this article was revised as “(1) The contracting States constitute a Special Union for the international deposit of industrial designs”

78 See WIPO document, “International Designs Bulletin”, http://www.wipo.int/haguebulletin/?locale=en (accessed on May 20, 2018 at 1:31 PM) 79 https://www.peacepalacelibrary.nl/ebooks/files/WIPO_wipo_pub_429.pdf (accessed on May 13, 2018 at 1:32 AM). 80 Supra note 72. 81See WIPO document, “The Hague System for the International Registration of Industrial Designs”, http://www.wipo.int/edocs/pubdocs/en/designs/911/wipo_pub_911.pdf (accessed on May 17, 2018 at 12:26 AM). 82 See WIPO document, “Members of the Hague Union”, http://www.wipo.int/hague/en/members/ (accessed on May 17, 2018 at 12:41 AM). 83 Article 1 of The Hague Agreement Concerning the International Registration of Industrial Designs (London Act, 1934). 29

(2) “Only States members of the International Union for the Protection of Industrial Property may become party to this Agreement.”84 Though it is termed as Hague Agreement, it consists of three treaties that are independent of each other which are concisely called the Hague Agreement that has enabled the making of single application for registration of an industrial design in the member countries who are parties to the separate treaties. These three treaties are- The London Act of June 2, 1934, The Hague Act of November 28, 1960, and ‘The Geneva Act of July 2, 1999.85 The London Act, 1934- The London Act, 1934 of the Hague Agreement relating to registration of International industrial design was adopted in 2nd June 1934 but came into force on June 1939. The application for registration of industrial design under this Act has been frozen as of 1st January, 2010. The freezing of Act of 1934 means that as from 1st January, 2010, it is not probable to file international deposits under this Act or to make any designation governed by the Act i.e. no new registration or designation could be entertained in the international Register from the mentioned date.86 However, under this Act any renewal of the designation made before 1st January, 2010 and the recording of any of any alterations or modification affecting such designations remains to be continue in the international register up to maximum period of protection under the said Act which is 15 years i.e. up to 31st December, 2024.87 The deposits extend automatically to all the states party unless protection in any of those states is explicitly rejected.88 As of from 18th October, 2016 the London Act, 1934 of the Hague Agreement is terminated as of decided by the 15 contracting parties to the Act.89 The Hague Act, 1960- under this Act any “nationals of contracting States and persons who, without being nationals of any contracting State, are domiciled or have a real and effective industrial or commercial establishment in the

84 Article 1 The Hague Agreement Concerning the International Registration of Industrial Designs (Hague Act, 1960). 85 T. Ramappa, INTELLECTUAL PROPERTY RIGHTS LAW IN INDIA, 1st ed. 2010, pp. 445. 86 Supra note 12 at 170. 87 As a result of the freeze, all the activities under the 1934 Act will gradually diminish and finally terminate at the latest on December 31, 2024, i.e. 15 years after the last possible deposits or designations under 1934 Act were made. 88 Supra note 13 at 682. 89See WIPO document, “Termination of the London Act of the Hague Agreement”, http://www.wipo.int/hague/en/news/2016/news_0010.html (accessed on May 22, 2018 at 10:22 PM). 30 territory of a contracting State may deposit designs at the International Bureau.”90 This Act requires that “International deposit may be made at the International Bureau of WIPO must be either directly or through the intermediary of the national Office of a contracting State if the law of that State so permits.”91 This Act held’s that the “international deposit shall consist of an application and one or more photographs or other graphic representations of the design, and shall involve payment of the fees prescribed by the Regulations. The application shall contain a list of the contracting States in which the applicant requests that the international deposit shall have effect and the designation of the article or articles in which it is intended to incorporate the design”92 Article 7 of the Act states that, “A deposit registered at the International Bureau shall have the same effect in each of the contracting States designated by the applicant in his application as if all the formalities required by the domestic law for the grant of protection had been complied with by the applicant and as if all administrative acts required to that end had been accomplished by the Office of such State.”93 However, if the “national office of the contracting states refuses to grant protection within six months period from the date of the receipt of the publication of the international deposit, such refusal must be communicated to International Bureau within the stipulated time. Such refusal can only be based on the requirements of the domestic law other than the formalities and administrative acts.”94 “The term for protection is for 5 years and such can be renewed for another term of 5 years by payment of renewal prescribes fees.”95 The Geneva Act, 1999- This Geneva Act is the latest of the three Acts that was negotiated under WIPO, established by convention of WIPO in 1967 currently consisting of 191 member states.96 The said Act was signed on 2nd July, 1999 and came into effect on 1st April, 2004. The European Community (EC) acceded to the Geneva Act in 2007, and the Act entered into force with respect to EC on 1st January, 2008 that directs all the members of the EU to provide protection to the registered design under the Hague system. This Act is one of the forms of Hague

90 Article 1 of The Hague Agreement Concerning the International Registration of Industrial Designs (The Hague Act, 1960). 91 Article 4, ibid. 92 Article 5, ibid. 93 Article 7, ibid. 94 Article 8, ibid. 95 Article 10, ibid. 96 See WIPO document, “Member states”, http://www.wipo.int/members/en/ (accessed on May 23, 2018 at 9:14 PM). 31

Agreement, 1925 relating to International deposit of Industrial design which has been revised number of times. The purpose of this Act is to make easier for the creator of industrial design who is a party to the Hague Agreement by filing a single application with WIPO or in United States Patent and Trademark Office (USPTO) indirectly. The Agreement thereby, reduces the cost of the creator who seeks to protect their rights worldwide.97 Currently there are 54 contracting parties under this Act.98 The Geneva Act, 1999 provides that “any person that is a national of a State that is a Contracting Party or of a State member of an intergovernmental organization that is a Contracting Party, or that has a domicile, a habitual residence or a real and effective industrial or commercial establishment in the territory of a Contracting Party, shall be entitled to file an international application.”99 “The international application may be filed, at the option of the applicant, either directly with the International Bureau or through the Office of the applicant’s Contracting Party”100 and the “filing date shall be the date on which the International Bureau receives the international application”101 Article 27(1) (ii) of the Geneva Act, 1999 Act provides that, “in order to become party to that Act, an intergovernmental organization has to maintain an Office in which protection of industrial designs may be obtained with effect in the territory to which its constituting treaty applies. Moreover, at least one of the member States of the intergovernmental organization has to be a member of WIPO.”102 However, this Act of 1999 is accessible to any of the member states of WIPO and few intergovernmental organizations. Director General of WIPO plays the role of depository of the Act103 where any instrument of ratification or accession by the states must be deposited with him. This Act builds a link between the international and regional registration system of designs in future, since it provides for certain inter-governmental organization to become the party of the Act.104

97 110th Congress 1st session Report, Geneva Act of the Hague Agreement concerning the international registration of Industrial designs (2007), https://www.congress.gov/congressional-report/110th- congress/executive-report/7 (accessed on May 24, 2018 at 1:22 AM). 98See WIPO document, “WIPO-Administered Treaties”, http://www.wipo.int/treaties/en/ActResults.jsp?act_id=7 (accessed on May 24, 2018 at 2:48 PM). 99 Article 3 of Geneva Act, 1999. 100 Article 4 (1) (a), ibid. 101 Article 9, ibid. 102 Article 27 (1) (ii), ibid. 103 Article 34, ibid. 104 Supra note 13 at 682. 32

Objectives of the Geneva Act, 1999 a) To extend the Hague system to new members, particularly those whose office carries out a novelty examination of industrial designs. b) To carry out such novelty examination, the Geneva Act introduced in the Hague system, a number of features aimed at facilitating accession by new contracting parties, such as the possibility of extending the refusal period to 12 months or fixing a higher designation fee. c) To protect or to maintain the simple fundamental Hague system and to provide with more attractiveness to the users. Thus, the protection will be extended only by countries which are parties to applicable treaty of the Hague Agreement under which the application is made. If the international application filed with the office of WIPO is not rejected, it is to be taken as having been accepted by the countries party to the treaty governing the application. Inevitably, if an applicant does not qualify under any of the three treaties, he will have to make the normal application in the country where he seeks protection. The same is the position in respect of any country, like India, which is not a party to any of these three treaties.105

3.4.3 Objective of the Hague Agreement 1. To acquire protection of industrial design by filing a single international application with the WIPO in one language by paying the prescribed fees in single currency. 2. To save time and money of the user by allowing them to acquire protection of design in multiple markets. 3. To provide a means to acquire, manage and maintain protection of design rights in the contracting states of the Hague Union. 4. To provide a way for protecting a design through single application in several countries while protecting the rights of those countries to prohibit from protection any design that are not eligible to protect under their own national laws.

3.4.4 Features of the Hague System 1. Under this convention, international design protection can be sought by any person who is a national, a domicile of the contracting state or through a

105 Supra note 85 at 445. 33 commercial establishment in the territory of a Contracting Party, shall be entitled to file an international application106 in International Bureau of the World Intellectual Property Organization. 2. It appears to be cost effective protection of design as application is required to be accompanied by prescribed fees which need to be in single currency. 3. It makes easy for the owners of design to protect and preserve their design with least procedure in diverse regions or countries. 4. The owners of the designs were surrounded by much opportunity to aim various markets globally i.e. national, regional and international which in turn ensures its flexibility.

3.4.5 Purpose of the Agreement 1. The main purpose of The Hague convention is to provide international filing for protection of design by filing single application by the nationals, domicile of the contracting parties of Hague Agreement. 2. To provide easier, quicker and more cost-effective procedure of filing and registration of design. 3. To save money and time of the design owners by enabling them to access multiple markets through filing a single application. 4. To simplify the management of the industrial design, since it is possible to record ensuing modification or to renew the registration through a simple procedural system with WIPO.

3.4.6 Advantages of the Hague System Hague system has provided various benefits concerning International deposit of Industrial design and few of them are stated below. 1. Design owners are relieved from the need to make a separate national application in each of the ‘contracting parties’, in which they seek protections thereby avoiding the complications that may arise from the procedures which differ from state to state. 2. The design owner neither requires drafting and filing of documentation in various languages nor requires to keep a watch on the deadlines for renewal of national registration varying from one state to the other.

106 Article 3 of The Hague Agreement Concerning the International Registration of Industrial Designs (Geneva Act of July 2, 1999). 34

3. They need not require paying fees in different currencies which varies from state to state. 4. Single international registration enhances in managing the obtained protection as that of any changes in the ownership, name or address of the design holder can be recorded in ‘international register’ and can have its effect in the ‘contracting parties’ by means of one simple procedural step.107 5. This system helps the holders to save money and time. Thus, the Hague Agreement had made registration process easier and simpler for the design holders without much complication. Adoption of Hague Act, 1960 has made this agreement more irresistible and consistent with other laws of national states.

3.5 Locarno Agreement Establishing an International Classification for Industrial Designs, 1968 3.5.1 Introduction Locarno agreement establishes an International Classification for Industrial Designs which is referred as the ‘Locarno Classification’. This agreement is one between the countries that constitutes a special union that has adopted “a single classification for industrial designs (hereinafter designated as the international classification).”108 It is based on multilateral treaty administered by WIPO. This agreement clarifies the manner industrial design is protected and classified around the globe. It requires that if there is more than one design to be included in international application, all designs must belong to same class of Locarno classification. The Locarno Classification is “solely of an administrative character and does not bind the contracting countries as regards the nature and protection afforded to the industrial design in those countries”.109 However, this Agreement requires the competent offices i.e. the Trademark offices of the contracting states must “indicate in the official documents reflecting the deposit or registration of designs, and, if they are officially published, in the publications in question, the numbers of the classes and subclasses of the international classification into which the goods incorporating the designs

107 Supra note 12 at 170. 108 Article 1 of the Locarno Agreement Establishing an International Classification for Industrial Designs, 1968. 109 Article 2(1), ibid. 35 belong.”110 It requires that language of such international classification must either be in English or French.111 Other than the competent offices of the contracting countries, the African Intellectual Property Organization (OAPI), the African Regional Intellectual Property Organization (ARIPO), the Benelux Office for Intellectual Property (BOIP), the European Union Intellectual Property Office (EUIPO) and the International Bureau of WIPO also use the Locarno Classification in their registers and in the publications they issue.112 However, this agreement consists of a special union as stated above and such union has an Assembly and every contracting state is a member of such Assembly.113 “The Government of each country of the Special Union shall be represented by one delegate, who may be assisted by alternate delegates, advisors and experts.”114 One of the significant tasks of the Assembly is to adopt the biennial budget of the Special Union.115 The Agreement constituted a committee of experts under Article 3 in which special union of the countries are represented by simple majority. “Any amendments or additions to the international classification must be made by WIPO or offices of the states and in concern to it the decisions made by the committee of experts shall be by simple majority of the union and each expert has the right to vote by mail.”116 The Locarno Agreement is open to States party to the Paris Convention for the Protection of Industrial Property (1883). Instruments of ratification or accession must be deposited with the Director General of WIPO.117 Hence, the “Agreement shall have the same force and duration as the Paris Convention for the Protection of Industrial Property.”118 Article 12 of the Agreement states that “any country may denounce this Agreement by notification addressed to the Director General and such denunciation shall affect only the country making it shall take effect one year after the day on which the Director General has received the notification and such right shall

110 Article 2(3), id. 111 Article 1 (7), ibid. 112 WIPO publication No. 501E/10, International classification for industrial designs (Locarno Classification), 10th ed., 2013. 113 Article 5 (1) (a), ibid. 114 Article 5 (1) (b), ibid. 115 Article 2 (a) (iv), ibid. 116 Article 3, ibid. 117 Article 9, ibid. 118 Article 10, ibid. 36 not be exercised by any country before the expiration of five years from the date upon which it becomes a member of the Special Union.”119

3.5.2 Historical Background of Locarno classification Locarno classification for industrial design was an international classification concluded in October 8, 1968 at a conference in Locarno (Switzerland) where all the member countries of the Paris convention for the protection of Industrial property were present and created an agreement named as Locarno Agreement Establishing an International Classification for Industrial Designs (also referred as ‘Locarno Agreement’ and ‘Locarno classification’). It came into force on April 27, 1971 and was revised in September 28, 1979. Such revision is carried out by committee of experts that are constituted under this Agreement. On January 1, 2009 49 states were party to the Locarno Agreement. India too adopted the international classification, the classification based on articles. Locarno classification has been amended various number of times by Experts committee constituted under this Agreement. The prevailing eleventh edition includes all the amendment that was made in and before 2015, that was issued in June 2016 but came into force on January 1, 2017. This edition replaced all the previous editions.120 Thus, in order to keep the Locarno classification up-to-date with pace of time, such classification is amended from time to time by experts committee and new edition is published in every five years.121 However, the genuine edition of the Locarno classification is either published in English or French by WIPO online.122

3.5.3 Structure of the classification Under Locarno classification designs are assigned in a largely constant manner to different classes of goods i.e. 32 classes and 219 sub-classes along with the explanatory notes and an alphabetical list of goods in which industrial designs are included. This list contains 5,167 indications of different kinds of goods.123 It is revised at regular intervals to reflect the latest technological developments.

119 Article 12, id. 120See WIPO document, “About the Locarno Classification”, http://www.wipo.int/classifications/locarno/en/preface.html (accessed on May 30, 2018). 121 ibid. 122 Supra note 112. 123 ibid. 37

However, the Locarno designation124 consists of two pairs of numbers. The first pair of numbers designates a design class; the second pair of numbers indicates a particular sub-class within the design class. It delineates the individual classes and sub-class and includes: 1. A general list of classes of industrial designs divided into broad sub- classes. 2. An alphabetical list of specific industrial designs with an indication of the classes and sub-classes into which they should be classified. There is no provision for cross-reference designations within the Locarno system. The committees of experts were authorized by the Locarno agreement to make ‘amendments and additions’ to the list of classes and subclasses. It also assigned the committee to adopt the alphabetical list and explanatory notes; to amend and supplement the international classification i.e. list of classes and subclasses, alphabetical list of goods and explanatory goods.125

3.5.4 Purpose of the Locarno classification 1. To make easy for an applicant to search industrial design priory whether be it for novelty, validity or infringement by organizing the registered designs. 2. The contracting counties to the Agreement no longer required to stop their own national classification or to retain their prevailing one up to date. 3. Designs more than one, if required to be included in international application, it must belong to the same class under Locarno classification. 4. To make easier and possible to classify goods for registration of industrial designs. 5. As Locarno classification is an administrative tool, it authorizes to collect the fees and does not bind the member countries in regard to design protection so classified.

3.5.5 Advantages of Locarno classification 1. National offices had the benefit of filing application for registration of industrial design by use of Locarno classification for single classification system

124 Means how the article is described in Locarno- it is 2 pairs of numbers and so on. 125 Article 1 of the Locarno Agreement Establishing an International Classification for Industrial Designs, 1968. 38 which arranges information regarding industrial manageable structures for easy retrieval. 2. It can also deny the required re-classifications of related industrial design when filed in more than one member country. 3. It makes industrial design searches easier and removes basic reclassification work when documents are exchanged at international level. 4. Such procedure helps to circumvent third party rights from being infringed and such classification is much easier to enlarge it by adding new classes and sub-classes of products. 5. This classification system is regularly updated from time-to-time to include changes and advances in technology and commercial practices. 6. This system is voluntarily used by many countries including India which are not the members of the related agreements. 7. Though duration of industrial design protection is for limited period of time, so any commercial dispute can be easily identified or tracked as old designs will no longer be in existence.

3.5.6 List of classes of goods of Locarno classification The lists of classes of goods are as under- Class 1 Foodstuffs Class 2 Articles of clothing and haberdashery Class 3 Travel goods, cases, parasols and personal belongings, not elsewhere specified. Class 4 Brush ware Class 5 Textile piece goods, artificial and natural sheet material Class 6 Furnishing Class 7 Household goods, not elsewhere specified Class 8 Tools and Hardware Class 9 Packages and containers for the transport or handling of goods. Class 10 Clocks and Watches and other measuring instruments, Checking and signaling instruments. 39

Class 11 Articles of Adornment Class 12 Means of Transport or hoisting Class13 Equipment for production, distribution or transformation of electricity Class 14 Recording, communication or information retrieval equipment Class 15 Machines, not elsewhere specified Class 16 Photographic, cinematographic and optical apparatus Class 17 Musical instruments Class 18 Printing and office Machinery Class 19 Stationery and office Equipment, artists’ and teaching Materials Class 20 Sales and advertising equipment, signs Class 21 Games, Toys, Tents and sports goods Class 22 Arms, pyrotechnic Articles, and Articles for hunting, fishing and pest killing. Class 23 Fluid distribution equipment, sanitary, heating, ventilation and air- conditioning equipment, solid fuel. Class 24 Medical and Laboratory equipment Class 25 Building units and construction elements Class 26 Lighting apparatus Class 27 Tobacco and smokers’ supplies Class28 Pharmaceutical and cosmetic products, toilet Articles and apparatus. Class 29 Devices and equipment against fire hazards, for accident prevention and for rescue. Class 30 Articles for the care and handling of animals Class 31 Machines and appliances preparing food or drink, not elsewhere specified. Class 32 Graphic symbols and logos, surface patterns, ornamentation.

40

Therefore, almost all jurisdictions including India follow Locarno classification for registration of design comprising above-mentioned 32 classes. Most of the classes are further divided into sub-classes. Thus, designs application must be filed in a particular class depending upon the predominant material with which the article is made or is capable of being made.

3.5.7 Limitations of Locarno classification 1. Locarno classification does not categorize the appearance of design and so it becomes impossible to search for a design which looks similar or alike to another design. It is only easy to search design by product.126 2. Due to unstable purview of the classes and sub-classes that sometimes results in overloading of classes and sub-classes, insufficient explanatory notes of products and of inadequate tools relating to search of designs for retrieving pertinent designs.127

3.6 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 1994 3.6.1 Introduction TRIPs Agreement is one of the most comprehensive multilateral agreements on intellectual property that came into effect on January 1, 1995 with India as its original member. It sets out to provide appropriate protection and to secure measures and procedures to administer intellectual property so that they do not themselves become any obstacle to the legal trade.128 It introduced few concrete international rules apart from the minimum period protection. However, the provisions of Paris convention concerning industrial design must be comply with by members of TRIPs Agreement.129 The provisions of the Paris convention are of two types- one which apply to all kinds of industrial property such as national treatment and grace period for the payment of fees, thereby

126 European Communities Trade Mark Association, “Position Paper on Proposed Changes to the Locarno Classification System for Industrial Designs”, http://www.wipo.int/edocs/mdocs/classifications/en/lo_pg_1/lo_pg_1_ref_10.pdf (accessed on June 1, 2018 at 12:50 AM). 127 ibid. 128 Agreement on Trade-Related Aspects of Intellectual Property Rights, https://www.wto.org>legal_e>27-trips (accessed on June 1, 2018). 129 Article 2 (1), ibid. 41 applicable to industrial designs. It also contains provisions impliedly dealing with industrial designs, particularly on- i. The obligation to protect industrial design.130 ii. The right of priority.131 iii. Failure to work an industrial design.132 iv. The importation of articles constituting or containing an industrial design.133 v. The indications upon the goods enjoying industrial design protection or of the fact that an industrial design has been deposited.134 vi. Temporary protection at certain international exhibitions.135 vii. Establishment of a special industry property service.136

3.6.2 Specific provisions Section 4 of Part II of the TRIPs Agreement incorporates Article 25 and 26 which relates to Industrial designs. Article 25 deals with requirement of protection and Article 26 deals with protection sector. Article 25 (1) of the TRIPs Agreement obliges “Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.”137 Special provisions relating to textile design: Article 25 (2) of the TRIPs Agreement states that, “Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.”

130 Article 5 quinquies reads industrial design shall be protected in all the countries of the Union, paris convention. 131 Article 4, ibid. 132 Article 5 B, ibid. 133 ibid. 134 Article 5 D, ibid. 135 Article 11, ibid. 136 Article 12, ibid. 137 Article 25 (1) of the TRIPs Agreement, 1994. 42

The protection of industrial design under TRIPs Agreement is provided under Article 26. Article 26 (1) of the TRIPs Agreement provides, “The owner of a protected industrial design shall have the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.”138 Article 26(2) provides limited exception to the protection that allows “Members to provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.”139 The Agreement also provides for the protection of industrial designs that shall be available for a period of 10 years.140

3.7 Conclusion The international treaties on Intellectual property rights related to industrial designs deals with various laws either in national or international aspects. Each of the conventions has its own procedure for filing and registering a novel design. As a result the rights of the design holder are protected through various ways. These international conventions govern the basic standards of intellectual property protection in Industrial design. Among all, these conventions also attempts to save money and time of the design owner by making the registration process easier and simpler without any much complications to the design holders. These conventions main purpose is protect industrial designs internationally as well as nationally and of smooth functioning of registration process without much difficulty. As a result, it aims to protect the works of a creator equally in the respective member countries who are party to these conventions.

138 Article 26 (1), id. 139 Article 26 (2), ibid. 140 Article 26 (3), ibid. 43

CHAPTER-IV

DESIGN UNDER INDIAN LAW

4.1 Introduction Industrial design is a branch of intellectual property rights that refers to the creative activity of attaining a formal or ornamental looks for mass produced items. Simply speaking, designs are drawings and when such drawing as a design is applied to commercial goods by the concerned enterprise; it is termed as an industrial design. These designs make an article captivating and visually appealing, thus adding to its commercial value. Additionally, it helps to promote more innovative and aesthetically attractive products, thus providing consumers with a broad choice as visual attraction enhances the marketability of the articles. Products which are artistically or graciously designed immediately draw the attention of the customers as such design provides aesthetic sense and appearance to the product. The appearance of an article certainly counts in marking a first impression on a customer, and often plays a determined role in the final decision whether to buy or not as bad appearance of a product may result in dreadful impact in its marketing.141 This means visually attractive products attracts the customers soon. When a person goes to buy any product whether be it textile, electronic items, utensils, cosmetics, Jewellery etc. they usually gets attracted by the shapes and design of the product, so the manufactures gives much attention towards the design of the product in order to attract the customers.142 The creative design requires legal protection against copying; therefore Design Act 2000 provides for registration of original design and prohibits its copy by others. Industrial design as an intellectual property refers only to the aesthetic sense of the finished product and is distinct from any technical or functional aspects. The designs may consist of three-dimensional features such as the shape or surface of an article, or of two-dimensional features such as patterns, lines or color, as they can be expressed in two-dimensional (drawing) or three-dimensional (model) formats. Example of two dimensional designs are- textile, wallpaper and carpet designs and that of three dimensional designs are- shape of a toy, package, car, electric appliance, mobile phone, piece of furniture or the shape and ornamentation of

141 Supra note 9 at 188. 142 Supra note 15 at 212. 44 kitchenware. In certain circumstances, the features constituting a design may be the color, texture or material of an article.143 So, such a unique creativity of a person tends to be registered and protected under design law. However, copyright is a legal protection that automatically undertakes artistic work whereas industrial design Act protects the design of an artist/creator. Design Act provides for registration so that the design holder can have monopoly rights over his creation and to prevent other from infringing his right by selling, using or copying similar design. In India design is protected under two rights: Registered design and artistic copyright.144 Currently, Indian design law is governed by Design Act, 2000 and Design Rules 2001. Under these regulations, it provides proprietor of design who has created any novel design to file an application for registration of such design and grants him with certain rights of preventing third party from selling, importing and applying the design to any article. For example if the novelty factor is emphasized, a design may get protection under patent law; if the focus is being on its artistic creation, it may get protection under copyright law; and if the characteristic of design is to distinguish goods or services of one enterprise from those of others, it may get registered under trademark law. Also a design may be simply registered as an industrial design under Design Act, 2000.145 Therefore a design in order to be protected as an intellectual property must be commercially exploited; otherwise it will just remain as a piece of art without any commercial value.

4.2 Overview of Design law in India 4.2.1 Definition of design An industrial design is a combination of applied art and applied science, whereby the aesthetics sense of people concerning the design of the product, so that they can use them efficiently and effectively and usability of mass produced products may be improved for marketability and production. The role of an industrial designer is to bring into existence and at the same time to execute design solutions

143 Supra note 6 at 189. 144All Answers ltd, 'Industrial Designs And Intellectual Property Rights, “Law Teacher”, https://www.lawteacher.net/free-law-essays/commercial-law/industrial-designs-and-intellectual- property-rights-commercial-law-essay.php (accessed on June 4, 2018 at 1:57 PM). 145 Supra note 4 at 179. 45 towards problems of form, usability, engineering, marketing, brand development and sales.146 Design law not only extends to all designs, but only to such designs as can be applied to some article of manufacture and which gives appealing look to the product. The Design Act, 2000 has been confined to designs applicable to manufactured articles and to the application of such designs to such articles. The Act does not apply to things or articles or goods to which a design is applied, but the Act only applies to the design applied to the article. However, Design Act, 2000 has defined ‘design’ under section 2 (d) as: “Design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957” In Bharat Glass tube ltd. v. Gopal Glass works ltd.147 the Supreme Court held that ‘Design’ means that a feature or a pattern which is registered with the registering authority for being produced on a particular article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye.148 The above stated definition makes it clear that design means the features of shape, configuration, pattern, ornament or composition of lines or colors applied to an article and not the article itself. The definition of ‘design’ is applicable to an article in two dimensional or three dimensional forms or in both forms. Thus, as a general rule, a design involves: 1. Three dimensional features, such as shape of the product. 2. Two dimensional features, such as ornamentation, patterns,

146 Raman Mittal, LICENSING INTELLECTUAL PROPERTY LAW & MANAGEMENT, 1st ed. 2011, pp. 365. 147 (2008) (37) PTC 1(SC); 2008 (5) Mad LJ 939 (SC). 148 B.L. wadhera, LAW RELATING TO INTELLECTUAL PROPERTY, 5th ed., 2014, pp. 413. 46 lines or color of a product; or 3. A combination of one or more such features. In case of Amp inc. v. utilux pty ltd149 shapes and configuration are synonymous and three- dimensional, e.g. the shape of a bottle, vase and so on. On the other hand a pattern or ornament is two dimensional as in the case of patterns for textiles, wall paper etc., it serves the purpose of decoration.150 In Parle products private limited v. Surya food & Agro limited151 the design must be such that in the finished article of it ‘appeal to and are judged solely by the eye.’ A good subject of design must be visually appealing, though it need not be an artistic work or possess artistic merit. The above definition itself indicates that the design has to be applied to an article by any industrial process or means, whether manual, mechanical or chemical, separate or combined. He design in order to be appealing must be noticeable and must have some visible appearance of an individual character in relation to the article as held in case Lord Avonside in Harvey & co. v. secure fittings.152 However, the under mentioned followings are excluded from the definition of design: 1. Any mode or principle of construction: Any mode or principle of construction or operation or anything which is in substance a mere mechanical device, would not be registered as design. For example- a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock associated with cannot be registered as design under the Act. However, when any design suggests any mode or principle of construction or mechanical or other action of a mechanism, a suitable denial in respect thereof is required to be inserted on its representation, provided there are other registrable features in the design. In Haji Sikandar Shah v. Mian Rahim Baksh153 the suit was related to design registration of a cap known as Charpariza Paltedar. The court held that since the shape and configuration of the cap which has been registered by the respondent is the same as was in existence before a stronger foundation was given to the embroidery, it appears

149 (1972) R.P.C. 103 H.L. 150 Supra note 31 at 288. 151 2009 (40) PTC 638 (Mad) (DB). 152 1966 RPC 515. 153 AIR 1940 pesh 38. 47 that what the respondent had done was to invent a new principle of construction. To the eye, which is to be the sole judges in these cases, there is no difference in shape, configuration, pattern or ornament, although there is a different mode or principle of construction. 2. Anything which is in substance a mere mechanical device: Anything which is in substance a mere mechanical device cannot be registered as design. To put it differently, features of shape or configuration which are dictated solely by the function, which the article to be made in that shape or configuration has to perform, cannot be registered as design under Design law. To be registerable as designs the features of shape or configuration must be features beyond those necessary to enable the ‘article’ serve its functions. 3. Any trademark as defined under the Trademarks Act: Trademark indicates the source or identity of the producer/manufacturer of the article. A producer or manufacturer may put his trademark also on a designed product so that it is conveyed to the consumer that he has produced it. On the other hand, design is merely ‘features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article’ to make it attractive and appealing to the eye of the consumer. A trademark may also be attractive and appealing to the eye but it should be directly relatable to the producer/manufacture of the goods. In case of Two-rib glass lenses,154 the two ribs on the edge of the lenses were held to be ‘trademark’ and not ‘design’ as they did not appeal to the eye, were not capable of attracting a purchaser in any way and were adopted only for connecting them with the source of their producer in view of the mutual agreement between the leading lenses producers that they would use different numbers of each ribs. 4. Any property mark as defined in Indian Penal Code: A mark put up on movable property, to show that the marked movable property belongs to a particular person is called a property mark. It means marking any movable property or goods, or any case, package or receptacle containing goods, or using any case, package or receptacle with any mark thereon. For example mark used by the Indian railways on their goods may be termed as a property mark for the purpose of easy identification of the owner.

154 2004 (28) PTC 257 (265) (Del). 48

5. Any artistic work as defined in Section 2 (c) of the Copyright Act, 1957: Section 2 (c) the Copyright Act, 1957 defines artistic work as, i. “a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; ii. An work of architecture, and iii. Any other work of artistic craftsmanship.”155

4.2.2 Nature and Scope of Industrial design law The Design Act, 2000 mainly protects the element of design. The Act protects the industrial design and such designs are judged solely by the eye. It is the eye that attracts the customer to buy a product that is unique, appealing that justifies the proverb, “Beauty lies in the eyes of the beholder”. Industrial Designs primarily deals with aesthetic or ornamental aspects of the product which are produced industrially. The two dimensional and three dimensional features applied in an article attract a customer towards the article and cause them to buy the particular product. A product with an unattractive design have a less chance to attract a design so manufacturers mainly focuses on design of the product whether be it shape, pattern, configuration, colors applied to the article etc. Design is what compels a buyer to buy, since it appeals to our finer senses and the eye. Designs do not include artistic work, as artistic works are protected under copyright. But any product that is eligible for protection under industrial design law might equally be protected under copyright law. It must be remembered that there exist an overlap between designs and copyright.156 Assuming a particular design incorporates elements or features which are eligible to be protected by both the copyright law and industrial design law, the creator of an industrial design law can simultaneously claim protection under both the laws. It is upon the creator to invoke protection either or both the laws as he desires. This means if the term of protection of design expires under industrial law, then creator’s protection still exist under copyright law. But if he failed to register his design to obtain protection under industrial design law i.e. under Design Act, 2000; then he can claim protection under copyright law i.e. under Copyright Act, 1957 which is available to him without any formal agreement. But if he has chosen to be

155 Section 2 (c) of Copyright Act, 1957. 156 Supra note 1. 49 protected either by the one i.e. industrial design law or copyright law, he can no longer invoke the other.157 The scope of the definition of ‘design’ in section 2 (d) of the Design Act, 2000 came up for consideration before the Delhi High Court in Micro fibres Inc. v. Girdhar & co.158 the plaintiff was a company incorporated in the USA, engaged in the business of manufacture , sale and export of upholstery fabrics. Plaintiff has obtained registration of copyright over several drawings applied by it to the upholstery fabrics, which it contended were unique and original artistic works. It had found that the defendants were engaged in the manufacture and sale of goods, which it contended, violated its copyright. It therefore brought an action for infringement of copyright and for passing off. On the other hand, the defendant contended that the textile designs were aesthetic, ornamental and visual in nature with an appeal to the eye. Therefore they could not be the subject matter of copyright as they did not constitute an ‘artistic work’ but could only claim protection, if any under Design Act, 2000.159 It was also contended that in view of provision of Section 15 (2) of the Copyright Act, 1957, “Copyright in any design, which is capable of being registered but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his license, by any other person.”160 The court contended that the definition of design had been amplified to incorporate therein the composition of line and colors so as to avoid overlapping with the copyright Act regarding definition of ‘design’ in respect of artistic work. In appeal to a Division Bench of the same court, it upheld the order of the single judge and explained the scope of design as follows: “When the copyright holder of an original artistic work reproduces the same in another material form, he may or may not do so by employing an industrial process or means, whether manual, mechanical or chemical, separate or combined on an article. If reproduction of the original artistic work is done by employing an industrial process, as aforesaid on an article and the same results in a

157Vidita p. khutkar, “Nature and subject matter of industrial design”, http://www.grkarelawlibrary.yolasite.com/resources/LLMSY-IPR-2-Vidita.pdf (June 4, 2018). 158 2006 (32) PTC 157, 128 (2006) DLT 238. 159Ananth Padmanabhan, INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND REMEDIES, 1st ed., 2012, pp. 600. 160 Section 15 (2) of copyright Act, 1957. 50 finished article appeal to and are judged solely by the eye, then the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article by any industrial process constitutes a ‘design’ within the meaning of the expression as defined under the Design Act.”161 Thus, according to the court there exist a clear distinction between ‘Design’ under the design Act and ‘artistic work’. Court noted that the use of the word ‘only’ in the definition of design in section 2 (d) of the design Act, 2000 would differentiate the artistic work since such work “which may have inspired the creation of a design, is not merely the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article by any industrial process”. The Division Bench agreed with the contention of the respondent that parliamentary intent was to integrate copyright and design protection by virtue of section 15 of the copyright Act, the effect of such integration being that in cases where the ‘original artistic work’ was applied onto a product/article, the scope of protection for the same would be limited to the provisions of the Design Act.162

4.2.3 Objective and purpose of Design Act, 2000 1. To ensure effective protection to registered designs. 2. To protect original design applied in any article by means of industrial process. 3. Promotion of design activity in order to promote design element in industrial production of articles. 4. To reward the creator as a fruit of his labor in creating a design. 5. To establish that law does not unnecessarily extend protection beyond what is necessary to generate the required incentive for design activity while removing the hindrances to the free use of available designs. 6. To strike a balance of interests between the need for extending statutory protection to the registered industrial designs. 7. To foster innovation and protect the novel creativity of design formulated to be applied to particular materials produced and marketed commercially.

161 Supra note 159 at 601. 162 ibid. 51

8. To protect the IPR of the original design for a period of 10 years or whatever further period extendable. 9. To protect the rights of the owner against unauthorized copying or imitation by third parties. 10. To protect the designs that serves the purpose of the visual appeal of an article. 11. In the Bharat Glass tube ltd. v. Gopal Glass works163 clearly depicts that the object and purpose of design Act is to protect the IPR of the original design for a period of 10 years or whatever further period extendable and to reward the creator as a fruit of his labor in creating a original design.

4.2.4 Salient Features of Design Act, 2000 1. The Act enlarges the scope of prior publication. 2. It contains the provisions for identification of non- registerable designs. 3. It Introduces internationally followed system of classification in the place of Indian classification. 4. It contains provisions for maintaining the register of designs on computer and restoration of lapsed designs. 5. It provides for compulsory registration of any document for transfer of right in the registered design. 6. It enhances the quantum of penalty imposed for infringement of registered design.

4.2.5 Functions of Industrial design 1. To justify the need for granting legal protection to industrial design in the commercial world. 2. The design attach economic value to the product, increases the commercial value of the article on which the design is applied. 3. The design persuades the consumers to purchase the products among the various other products based solely on its attractive visual appearance without paying second thought on the quality of the concerned product.

163 (2008) (37) PTC 1(SC); 2008 (5) Mad LJ 939 (SC). 52

4. The design favors the proprietor to prevent unauthorized application to the article.164

4.2.6 Advantages of Industrial Design Rights 1. Industrial designs help in making any product or item more beautiful and appealing that help in increasing the commercial value of the product and increases the potentiality of the market. 2. The registration of industrial design helps in protecting the ornamental or aesthetic elements of the article. 3. The registered industrial design provides exclusive rights to the design holder to prevent third party from using, copying or imitating his design without his consent which benefits in fair flow of investment. 4. An effective design system helps in benefiting the public by encouraging fair and effective competition and trading practices which at large strengthen the creativity and the final result appears in form of attractive and beautiful products. 5. Protection of industrial design helps in overall economic development that promotes creativity in the industrial arena.165

4.2.7 Significance of protection of Industrial design Designs contribute significantly to the marketability of goods and are crucial assets in several industries such as textile, fashion, automobiles, furnishing and decoration. Quality is no longer enough to make ones company different from that of others. Every class of consumer wants products that are nicely designed. Movies, TV and other media make consumer aware of the design too. In today’s highly competitive era, a visual attractive design alone may enable to attract demanding and diversified collective of clients. Through creative designs, enterprises could reach out to and appeal to customers from different age groups, regions, cultures etc. companies therefore invests large sums of money and expertise in developing winning designs that appeal to changing customer tastes. We get to see around that many companies have successfully redefined their brand image through strong focus on product design. They have started recognizing that design excellence brings stronger brand recognition and better profitability. Thus, attractive designs help

164 Jayanta Lahiri, LECTURES ON INTELLECTUAL PROPERTY LAWS, 1st ed., 2009, pp.213. 165 Supra note 1 at 129. 53 in differentiating between competing products and also in customizing and segmenting the market for a particular product ranging from ordinary items such as watches, jewellery and cars. Creating high perceived values through aesthetically pleasing industrial design helps to build trust and long lasts customer relationship that translate into higher market share, better prices and bigger profits.166

4.2.8 Subject-matter of Industrial Design An article is distinguished not only by its utility but also by its visual appeal which too usually plays an important role in shaping the buyers preference for the article. Therefore, the design of an article and even design of its packaging is important from the commercial view point. A design which are not new or original or has been disclosed to public anywhere in India or in any other country by publication, or not significantly distinguishable from known designs or comprise or contain scandalous or obscene matter are not registerable under the Design Act.167 The Design Act, 2000 aims at protecting the designs which serve the purpose of visual appeal. A design to registerable under this Act must be some ‘shape, configuration, pattern or ornamentation or composition of lines or colors applied to such article 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 mechanical device but does not include any trade or property mark or artistic work’. Only particular class of articles can be registered under the Act. The design must be capable of being applied to an article in such a way that the article to which it is applied will appeal to and judged solely by the eye. The particular shape, configuration, pattern or ornamentation must have only an appeal. In Interlego v. Tyco Industries168, in reference of industrial design in United Kingdom (UK) Lord Oliver speaking for the judicial committee of the privy council, said that that the technique of choosing the part of shape or configuration with eye-appeal and discarding the portion having purely functional feature would make very ‘little sense’. According to him, the right approach necessarily involves ‘taking the design and article as a whole’.

166 Supra note 9 at 190-191. 167 Supra note 148 at 414. 168 (1988) R.P.C. 343 (J.C.). 54

4.3 Registration of Design under Design Act, 2000 4.3.1 Introduction Most countries require registration of an industrial design as a condition for protection in one’s own novel creation. Registration gives an absolute right that prohibits others from using the design for making, importing for trade or business or selling any article in respect of which the design is registered, and to which the design or a design not differing substantially from it has been applied. Its protection is territorial. Apart from providing protection to the Industrial design, law aims to promote inventive activities in the industrial field. Under the Design Act, 2000 the main purpose of having a registered design, law sees that the creator or originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods. Thus, Registration of industrial design is necessary to protect one’s creation from misappropriation as there is no right in design without registration.

4.3.2 Essential conditions for registration of designs Design rights protect new and original visual aspects of a product or its packaging. The design eligible for protection must display aesthetic features and must not be anticipated by a known overall identical or similar design. A design in order to be eligible for registration should fulfill the following conditions: 1. Novelty and originality: A design can be registered only when it is new and original with respect to class of article to which it has been applied. The expression ‘new or original’ means that it had been invented for the first time or it has not been reproduced by anyone. Section 4 of the Act, imposes the conditions for registration that the design must be ‘new or original’. Section 2 (g) of the Design Act, 2000 defines ‘original’ as, “originating from the author of such design and includes the cases which though old in themselves yet are new in their application.”169 The word ‘original’ implies that the person who originated something that by the exercise of intellectual activity has started an idea that has not occurred to anyone before.” The words ‘new or original’ involve the ideas of novelty either in the pattern, shape or ornament itself or in the way in which an old pattern shape or ornament is to be applied to some special subject- matter. The novelty of the designs constitutes the fundamental reason for the grant of a reward to the originator through

169 Section 2 (g) of the Design Act, 2000. 55 protection by registration of the industrial designs. In prospect of trade, where the design is original, the designer conceives something new; but where the design is a mere trade variation of a previous design, then the designer could have merely kept an existing design in view and made some changes in that. In order to determine whether a design is new or original, there must be substantial difference from the design which was known or had been published prior to the date of registration of the earlier design. In Rotela Auto components (p) Ltd. v. Jaspal Singh170it has been held that there should be some original mental application involved when conceiving new design. It means that there must be mental conception expressed in a physical form which has not existed before, but has originated in the constructive brain of its proprietor and must not be in an insignificant or in tiny degree, but in some considerable degree. A design may not be new; it may be an existing or known design but has been applied to a particular article for the first time i.e. comes to public existence for the first time. Such a design may be original in the sense that its application to the article is new. The shape of the design is available to public domain but there is newness or originality in the in applying the existing design to a particular article which was not created before by anyone amounts to newness in creation as in Reckitt Benckiser (India) Ltd. v. Wyeth Limited.171 In Gammeter v. controller of Patents172 the Calcutta High Court held that a design in order to be new or original within the meaning of the Act need not be one that was never seen before as applied to any article. Novelty could well arise by applying an old design to a new use, provided it was not merely analogous. Where the design of a metal band called the ‘novelty band’, intended to attach a watch to the wrist, was similar in shape and configuration to a bracelet previously manufactured for ornamental purpose, the court still found it to be new and original as the application of this design to a wrist watch was for a purpose so different from, and for a use so dissimilar to, the purpose and use of the bracelet. Therefore, a design will not be treated as new if it is the same or substantially the same as a design which forms part of the state of the art, or in other words a known design. In order that a design qualifies as an original one, it must be

170 2002 (24) PTC 449 (Del). 171 2010 (44) PTC 589 (Del). 172 AIR 1919 Cal 887. 56 certain creation of the author of the design and not merely a slightly amended version of an existing design. In Dart Industries Inc and another v. Techno Plast and others173 the Court observed that inducing minor variations to a well recognized shape of an article of common use would not make it new or original. Thus, novelty or originality occupies a strong position in protection of industrial design. Absence of novelty or originality will result in cancellation of protection of such Design. 2. No Prior Publication: Section 5 of the Design Act, 2000 prevents registration of the designs which are already published in any country including India in any tangible form or in any other way prior to the filing of application. According to Oxford Dictionary, ‘Publication’ means making publicly known, issuing of book, engraving, music etc. to the public.174 Display of designs in fashion show would amount to publication. Section 4 (b) of the Design Act, 2000 prohibits the registration of a design that “has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration.”175 In National Trading co. v. Monica Chawla176 it was observed that publication of a design, if disclosed to any individual member of the public who is not under an obligation to keep it secret, would constitute publication of the design. In addition section 19 (1) (b) provides that a registered design may be cancelled when it has been published in India or in any other country prior to the date of registration. In Khadim Shoe pvt. Ltd v. Bata India Ltd.177 the meaning of Prior publication in Section 19 (1) (b) was determined by Calcutta High Court as, a publication by which the members of the public at large are made known the design prior to its registration either by the registered designer himself or by any other party. Such publication might be an unintentional act on the part of the publisher. The intention of the publisher is not relevant fact for considering a prior publication. The

173 2007 (35) PTC 129 (Del.). 174 Supra note 12 at 70. 175 Section 4 (b) of the Design Act, 2000. 176 AIR 1994 Del 309. 177 2005 (1) CHN 346, 2005 1 Cal LT 602 (HC). 57 idea is whether the people knew of the design or not prior to the date of registration.178 However, publication can occur in two types- a) Publication in Prior document b) Publication by prior user. Publication in Prior document: It would result when the design has already been published in a document which is easily available. For example- two dress designers working in different boutiques develop a similar floral print for ladies suit. The design made in piece of paper by one of the designer in a boutique and it forms part of the inventory of designs in boutique. If the second designer applies for registration of the design, her application will not be considered since the design has already been published in a document. Publication by prior user: It would result, for instance, when a fashion designer before putting down the design in paper exhibits the design in a fashion show where the clothes with the design in question have been put to sale. There would be prior use of the design which would disentitle the design from registration on the ground of publication by prior use. The private or the secret use or an experimental use of a design will not constitute publication by prior use. In Wimco Ltd. Bombay v. Meena Match Industries, Sivakasi179 the court held that publication means the opposite of being kept secret. It is considered published if a design is no longer a secret. There is publication if the design has been disclosed to the public or the public is put in possession of the design. The disclosure even to one person is sufficient to constitute publication. Thus, in order to be eligible for registration of industrial design, prior publication or prior disclosure of the design will fail in obtaining protection.

3. Distinctiveness: Section 4 of the Design Act, 2000 undertakes a design which is not significantly distinctive from known designs or combination of known designs is not registerable. The design could significantly be distinguishable from the other, is to be judged solely by the eye. It is to be seen whether the appearance of a design is substantially similar to the appearance of

178 Supra note 159 at 607. 179 AIR 1983 Del 537. 58 another design. A design in order to be registered under the Act must be distinguishable from the design already in existence or from combination of existing design. In Britannia Industries v. Sara Lee Bakery180 the Madras High Court held that the applicants’ registered design of its biscuits ‘Milk Wala’ is not similar to ‘Milk Cream Biscuits’ as the main features in both the biscuits are not substantially same in the eye of the customer, namely children. In Western Engineering co. v. Paul Engineering Co.181 it was held that the features of shape, configuration, pattern, etc. of the two designs must be same. For determining whether there was infringement or not, the sameness of feature is to be determined by the eye. The designs need not be identical on all points and differ on no point. Thus, for a design to be significantly distinguishable from known design or combination of known designs there should be significant variations in it and not merely small or superficial variations. 4. Design not containing scandalous or obscene matter: Section 4 of the Design Act, 2000 prohibits the registration of a design that contains or comprises of scandalous or obscene matter. If the design of article contains the scandalous or obscene matter, the controller may refuse such design to register it. Whether such design is scandalous or obscene be decided from the perspectives of Indian society, as the meaning of scandalous or obscene may differ from society to society. As Dictionaries have defined ‘Scandalous’ as shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation. It also includes matter that is ‘vulgar’, lacking in taste, insensitive, disrespectful towards race, religion or gender. Obscene is such indecency as is calculated to promote the violation of the law of the general corruptions of morals. If the matter portrays or narrates sexual conduct in a clear offensive ways, it is an obscene matter and such is not eligible to be registered under the Design Act, 2000. 4.3.3 Procedure for registrations of Designs The registration of designs is one of the most important aspects of design law as there being no rights in design without registration.

180 2001 PTC (Mad.). 181 AIR 1968 Cal 109. 59

1. Application for registration: Under section 5 of the Design Act, 2000, “an application for registration of design may be filed by any person claiming to be the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality, register the design under this Act.”182 The application shall be filed in patent office and to be accompanied by the prescribed fees and in prescribed format. However, the expression ‘proprietor of any new or original design’ has been defined in section 2 (j) of the Act as: (i) “Where the author of the design, for good consideration, executes the work for some other person means the person for whom the design is so executed; (ii) Where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (iii) In any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person.”183 In Md. Abdul Karim v. Md. Yasmin184 it has been held that the entry of a person’s name as the proprietor of the design is only prima facie evidence that he is the proprietor. The presumption is rebuttal by letting in evidence that he is not the actual proprietor of the design. The expression ‘registered proprietor’ means the person who is in fact the proprietor of the design and who has been registered as such. 2. Contents of application: The application should be accompanied by four copies of the ‘design’ to be protected, duly signed by the applicant. It should state the class in which the design is to be registered and also the articles to which it is to be applied. The Design Act, 2000 lays down 32 classes for the registration of designs. Under section 5 (3) of the Act, “A design may be registered in

182 Section 5 (1) of the Design Act, 2000. 183 Section 2 (j) of the Design Act, 2000. 184 AIR 1934 All 798 (800). 60 not more than one class, and, in case of doubt as to the class in which a design ought to be registered; the Controller may decide the question.”185 3. Statement of Novelty: section 4 and section 19 (1) (c) read together make it a condition precedent for registration of any design that the design should be new or original. The applicant has to file a brief statement of the novelty claimed by the applicant for design. The words, letters or numerals which are not part of the designs are to be removed from the specimens; however they are the essence of the design, the controller may require disclaimer of any right to their exclusive use. If the names or representation of living persons appear on a design, the controller should be furnished with consents from such persons or their legal representatives before proceeding to register the design. 4. Examination: Upon receipt of an application for registration of design, the controller shall refer the application for examination by an examiner. The examiner shall submit the report as to whether the design is capable of registration in accordance with Design Act, 2000 and Design Rules 2001 as amended in 2008. 5. Acceptance/objections: If on consideration of applications the controller finds that the applicant fulfills all the prescribed requirements and no objections raised, he shall register the design. In any case objections appear to the controller, a statement of these objections should be sent to the applicant or his agent in writing. The applicant or his agent within three months is required to remove the objections or apply for hearing, the applications will be deemed to have withdrawn. 6. Decision of the controller: If a hearing is held, the controller must communicate his decision in writing to the applicant or his agent.186 The controller is required to state the grounds of his decision and the materials on which he arrived at it, as such which are required for the purpose of the appeal. When the controller refuses the application after hearing, he may directly appeal to the central government whose decision is final. 7. Registration and publication of particulars of design: On acceptance of design filed in respect of the application, the controller shall direct the registration and publication of the particulars of the application in the official Gazette.

185 Section 5 (3) of the Design Act, 2000. 186 Rule 19 of 2001 Rules. 61

When the design is registered, the controller should grant a certificate of registration to the proprietor of design187 or may refuse it if he so thinks fit.188 It shall be entered in Register of Designs, in addition to the other particulars like the number of designs the class in which it is registered the date of filing of application and other matters that would affect the validity of design. 7. Effect of Registration: When the design is registered, the proprietor of the design will be entitled to the following rights: i. The Right to exclusive use of the design. ii. The Right to protect the design from Piracy. The registration of design excludes all persons from using the design including the Government. It can however use the design or acquire the design in certain circumstances, e.g., when the article is not made available to the public at a reasonable price.189

4.4 Copyright in registered Design The registration of a design confers upon the registered proprietor of the design ‘copyright’ in the design for the period of registration. There are some specific provisions that deal with copyright in registered design which are described below: Under Section 11 of the Act, deals with ‘copyright on registration’ which states that “when a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration. If, before the expiration of the said ten years, application for the extension of the period of copyright is made to the Controller in the prescribed manner, the Controller shall, on payment of the prescribed fee, extend the period of copy-right for a second period of five years from the expiration of the original period of ten years.”190 Under Section 12 of the Act, deals with ‘Restoration of lapsed designs’ which states that, “Where a design has ceased to have effect by reason of failure to pay the fee for the extension of copyright, the proprietor of such design or his legal representative and where the design was held by two or more persons

187 Section 9 of Design Act, 2000. 188 Section 5 (4), ibid. 189 Supra note 15 at 221-222. 190 Section 11 of Design Act, 2000. 62 jointly, then, with the leave of the Controller one or more of them without jointing the others, may, within one year from the date on which the design ceased to have effect, make an application for the restoration of the design in the prescribed manner on payment of such fee. An application shall contain a statement, verified in the prescribed manner, fully setting out the circumstances which led to the failure to pay the prescribed fee, and the Controller may require from the applicant such further evidence as he may think necessary”191 Under Section 13 of the Act, deals with Procedure for disposal of applications for restoration of lapsed designs which states that, “if the Controller is satisfied that the failure to pay the fee for extension of the period of copyright was unintentional and that there has been no undue delay in the making of the application, the Controller shall upon payment of any unpaid fee for extension of the period of copyright together with prescribed additional fee restore the registration of design. However, the Controller may, if he thinks fit as a condition of restoring the design, require that any entry shall be made in the register of any document or matter which under the provision of this Act, has to be entered in the register but which has not been so entered.”192 Section 14 of the Act, deals with Rights of proprietor of lapsed design which have been restored which states that, “Where the registration of a design is restored, the rights of the registered proprietor shall be eligible fit the benefit of protection on compensation between the date when the registration of the design ceased to have effect and the date of restoration of the registration of the design. No suit or other proceeding shall be commenced in respect of piracy of a registered design or infringement of the copyright in such design committed between those two days of expiration and restoration.”193 Section 15 of the Act, deals with Requirements before delivery on sales which states that, “before delivery on sale of any articles to which a registered design has been applied, the proprietor shall furnish to the Controller the prescribed number of exact representations or specimens of the design and if he fails to do so, the Controller may, after giving notice thereof to the proprietor, erase his name from the register and thereupon the copyright in the design shall cease. The

191 Section 12, ibid. 192 Section 13, ibid. 193 Section 14, ibid. 63

Central Government may dispense with or modify such requirements as regards any such class or description of articles to such extent and subject to such conditions as it thinks fit.” Section 16 of the Design Act, 2000 deals with ‘effect of disclosure on copyright’ which states that, “the disclosure of a design by the proprietor to any other person in breach of good faith, and the acceptance of articles bearing a new or original textile design intended for registration, shall not be deemed to be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.”194 Section 17 of the Act deals with ‘Inspection of registered designs’ which states that, “during the existence of copyright in a design, any person on payment of the prescribed fee may inspect the design and may obtain a certified copy of any registered design on payment of the such fee as may be prescribed.”195 Section 18 of the Act deals with ‘Information as to existence of copyright’ which states that, “the Controller shall inform to any person, on payment of the prescribed fee, whether the registration still exists in respect of the design, and, if so, in respect of what classes of articles, and shall state the date of registration, and the name and address of the registered proprietor.”196 Section 19 of the Act deals with Cancellation of registration which states that “any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds namely: (a) That the design has been previously registered in India; or (b) That it has been published in India or in any other country prior to the date of registration; or (c) That the design is not a new or original design; or (d) That the design is not registrable under this Act; or (e) It is not a design as defined in this Act. And the controller shall cancel the registration on verification and an appeal shall lie to the High Court from any order of the Controller.”197

194 Section 16, id. 195 Section 17, ibid. 196 Section 18, ibid. 197 Section 19, ibid. 64

“A registered design shall have to all intents the like effect as against the Government as it has against any person.”198

4.5. Overlap of Design Rights with Copyright Overlapping of design with copyright can be availed with craftsmanship in applying to goods or articles. Copyright in a work is protected from the moment it comes into existence, there is no formality to be complied with, such as registration or deposit as a condition for copyright protection. Whereas in context of Designs to seek for protections, there requires registration for the design. Both Design law and copyright law are interconnected to each other by section 15 of Copyright Act, 1957 and Section 2 (d) of Design Act, 2000. Section 15 of Copyright Act, 1957, is related to Special provision regarding Copyright in designs registered or capable of being registered under the Designs Act, 2000. Section 15 (1) of the Act forbids protection of copyright in a design id such design is registered under Design Act, 2000. Section 15 (2) of the Act states that “Copyright in any design, which is capable of being registered under the Designs Act but the same has not been registered, such design will cease to have copyright protection as soon as an article to which such design is applied is reproduced more than 50 times by an industrial process.”199 Section 2 (d) of Design Act, 2000, “Design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957”200 From the above, it is clear that if an article is eligible to be registered under Design Act and same has not been registered under the Design Act

198 Section 20, id. 199 Section 15 (2) of the copyright Act, 1957. 200 Section 2 (d) of Design Act, 2000. 65 then such design will cease to have copyright protection as soon as an article to which such design is applied is reproduced more than 50 times by an industrial process. This means once a design is registered under Design Act; it prevents a person from having both the copyright as well as design protection simultaneously and to prohibit a person from having copyright protection of an article where a design has been applied to that article more than 50 times through industrial process. Many textile designers innocently exhibit their creations in fashion shows, in boutiques, showrooms etc. This creates showcasing their creation to general public and hence not eligible for design protection. The problem seen in this context is that when the design is copied by others, the designer filed a suit of infringement of copyright. As held in Samsonite Corp vs Vijay Sales201 Delhi High Court stated that ‘once an object has been sold in over 50 units, the only protection is under the Designs Act.’ In Aga Medical Corporation v. Mr. Faisal Kapadi and Anr202 Delhi High Court ruled that, “if a material is capable of being registered under the designs Act but has not been registered than that material cannot have copyright protection.” Thus, it is clear that a design will be entitle to copyright protection but it will cease as soon as such design is applied to an article and produced more than 50 times by industrial process.

4.6 Cancellation of Registration of Design Section 19 of the Design Act, 2000 confers to Cancellation of Registration of Design. This provision states that “any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:- (a) that the design has been previously registered in India; or (b) that it has been published in India or in any other country prior to the date of registration; or (c) that the design is not a new or original design; or (d) that the design is not registrable under this Act; or (e) It is not a design as defined under clause (d) of section 2.”203

201 73 (1988) PTC DLT 732. 202 2003 (26) PTC 349 Del. 203 Section 19 of the Design Act, 2000. 66

In Design Act, 1911 the power of cancellation was conferred upon High Court, but under Design Act, 2000 the power of cancellation has been given to controller. However, any appeal against the order of the Controller to the High Court. In Joginder Singh v. Tabu Enterprises204 the High Court of Delhi directed controller to cancel the registration of design on the ground that the design was not original and has been published prior to registration. Similarly, in National Trading Company v. Monica Chawla205 the defendant accepted that the design BABY BOUNCER was being used since the year 1987. The court was of the opinion that use of design prior to registration was sufficient for cancellation of registration. In Gopal Glass works Ltd. v. Assistant Controller of Patents and Designs206 the appellant was the manufacturer of figured and wired glass sheets. A design was created by the appellant by purchasing an embossing roller and using it over glass sheets. The controller cancelled the registration as the design having been already published and a similar design had been registered in U.K. in 1992 and its protection over in 2002. Thus, the ‘person interested’ would probably include any person adversely affected by the registration and having an interest in getting it cancelled.

4.7 Infringement of copyright in a design- Piracy of Registered Design Infringement of Copyright in registered design is known as piracy of Design. Piracy of Design means application of design or its imitations to any article belonging to the particular class of goods in which the design has been registered for the purpose of sale or importation of such articles without the consent of the registered proprietor. In this case a registered proprietor may bring a suit for the recovery of the damages for any such contravention and for injunction against repetition of the same. Section 22 of the Design Act, 2000 relates to ‘Piracy of registered design’ in which rights are granted in favor of right holder. This provision enacts rights forming part of copyright in relation to registered design. In lag co. ltd v.

204 AIR 1989 Del 81. 205 AIR 1994 Del 309. 206 2006 (33) PTC 434 (cal.). 67

Triveni Glass Ltd.207 the legislature combined both the substantive and procedural laws in section 22 as: i. Actions that shall not be lawful with respect to an existing copyright have been described- necessarily a field of substantive law. ii. Liability i.e. the end product of the administration of justice towards protection of the copyright in the design has been specified- again as a matter of substantive law. iii. Forum has been identified for enforcing the right- being the means to enforce the right, a matter of procedural law. iv. A right regarding defence of the person sued has been declared- being an express statutory right of defence to challenge the existence of the copyright which is sought to be enforced, it cannot be a matter of substantive law.208 However, Section 22 of the Design Act, 2000 reads as: 1. “During the existence of copyright in any design it shall not be lawful for any person- (a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or (b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof, or (c) Knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.”209 If any person acts piracy of design, he shall be liable; (a) “to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or

207 (2004) 3 cal LT 71 HC : 2004 (29) PTC 665 (Cal). 208 Supra note 12 at 107. 209 Section 22 of the Design Act, 2000. 68

(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sums recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees. Provided that no further suit or any other proceedings for relief under this sub section shall be instituted in any court below the court of District Judge. When the court makes a decree in a suit, it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs”210

4.8 Legal Remedies available against infringement of Registered Design Under the Design Act, 2000 the legal protection to designs is confined to registered design and the limit on monetary compensations has also been fixed up to fifty thousand only. Following legal remedies are available to plaintiff on registered design being infringed. a) Damages and/or b) Injunction It has been held under section 22 (2) (b) of the design Act, 2000 “any person found guilty of piracy of design may be liable to pay a sum of twenty five thousand recoverable as contract debt for every infringement. But the total sum recoverable in respect of any one design shall not exceed fifty thousand rupees provided that a suit for recovery of damages and/or injunction shall be instituted in the District Court.”211 However, in suit for infringement, defendant may raise following defenses: i. The design of Plaintiff is not registered. ii. The period of registration has expired.

210 id. 211 Section 22 (2) (b) of the Design Act, 2000. 69

iii. The defendant may also set up defence for cancellation of registration on the ground of lack of originality and prior publication as held in Daniel v. A.R. Safiullah.212 iv. The plaintiff has not come with clean hands. In Prem Singh v. Ceeam Industries213 the court found that the plaintiff himself imitated the design of another person and therefore was not entitled to remedy of injunction. v. The design of defendant is also registered. In Indo Ashahi Glass Co. Ltd v. Jai Mata Rolled Glass Ltd214 the defendant pleaded that plaintiff himself had registration of similar design. The court held that till cancellation of the design, the defendant cannot be held guilty of infringement.

4.9 Conclusion A design having an aesthetic value and visually appealable to eye is important in prospect of commercial purpose. In order to protect creation of attractive design, Design Act, 2000 was enacted. This law not only applied to creative designs, but to the designs which visualize an attractive looks when applied to any manufactured article. More uniqueness in design, more probability of design been registered and demand in market increases as the Act, justify the need of granting legal protection to industrial design. Infringement of registered design is entitled to judicial remedy in appropriate court and entitles the proprietor with exclusive rights to prevent others from misappropriating his rights.

212 2004 (29) PTC 62 (Mad). 213 AIR 1990 Del 233. 214 1996 PTC (16) 220 Del. 70

CHAPTER-V

TEXTILE INDUSTRY OF ASSAM: AN OVERVIEW

5.1 Introduction Assam- the land of mighty Brahmaputra has renowned tradition and remarkable importance in context of textile industry, next to agriculture. Woven textile is one of the richest traditions of the state considered to be as proud symbol inevitably associated with the traditions and cultures of Assam. Weaving sector of Assam has been emphasized as old as the Assamese Society self as it has always played the role of a vision into the life of people. Almost each and every home in rural areas of Assam is bustle with the sound of weaving of handloom with reverence and it is an age old affair. The traditional skill of the people of Assam in silk and cotton weaving is of high order. Such traditional skill in handloom weaving has been more like that of traditional knowledge, passed down from generation to generation and continuity of such unbroken weaving at home had made the weavers more skilled ever.215 Such traditional knowledge is considered to be the backbone of cultural heritage of Assam. Such knowledge is developed over time has been transmitted orally from generation to generation within the Assamese community. Though, the Traditional knowledge is not protected under law, exploitation of such knowledge for industrial or commercial benefits possess the risk of harmful misappropriation of the same from its rightful holders.216 The textile industry of Assam is famous for silk textiles i.e. Mulberry silk (pat), Golden silk (Muga) and Endi silk (Eri). These silks are one of the most prominent and reputable silk of the state. The attire made out of these silk are part and parcel of rituals and traditions of Assamese society. So, the production of these silk is one of the vital household activities in rural areas of the state. But out of these silks, Assam is specialized only in producing Muga silk as nowhere in other states of India Muga silk is produced. These textile silk plays a notable role in identifying the Assamese culture. However, the textile sector of Assam had more or less improved

215 Labanya Mazumdar, TEXTILE TRADITION OF ASSAM, 1st ed. 2013, pp. 146. 216Ishita chatterjee, “Intellectual Property Rights and Traditional Knowledge”, http://www.manupatra.com/roundup/363/Articles/IPR%20and%20Traditional%20Knowledge.pdf, (June 19, 2018). 71 the economic conditions of unemployed rural folks of the state. Profoundly it has upgraded the status of women to a large extent.217 The textiles produced in Assam are mostly of uniform yarn woven in plain weave producing smooth textures. In adornment of textiles, the term ‘design’ refers to the composition, produced by the regular arrangement of motifs or units. In case of hand-woven textile of the state, various indigenous designs with their distinct symbolic meaning play a principal part. Not only design, but colour patterns too had played an important role in textile production of the state. A harmony of beautiful traditional designs and colours is regarded as the unique characteristic of traditional textiles of Assam. Hence, the traditional designs of the state such as Kaziranga design, Kingkhap design, Jonbiri design, Japi design, Gach pat design etc. are tremendously used in textile applying variety of colour textures and pattern that makes the appearance of the textile uniquely attractive and such are the part and parcel of Assam’s textile sector.

5.2 Historical perspectives of Assamese textile Industry Assam consists of eminent traditional textile since the time immemorial as handloom weaving is an ancient craft of the state. Women folks of rural areas are more highly engaged in weaving and are widely known for its simplicity. The culture and tradition of Assamese weaving is best illustrated by the remark Passed on Assamese women by Mahatma Gandhi when he visited the exhibition held in Sualkuchi, also known as ‘Manchester of Assam’ of the Kamrup district of Assam on 9th January, 1946. He remarked, “Every women of Assam is a born weaver and Assamese girl who does not know weaving, cannot expect to become wife. She weaves fairy tales in cloth. Some of the old patterns showed to me were of match-less beauty; and as I saw these beautiful patterns, I could not help shedding a silent tear over India’s past glory and her lost art” as he was highly amazed about the art and culture of weaving of the Assamese women.218 Though, the origin of handloom weaving in Assam is hard to ascertain, its extensive practice among the Assamese people point to its very early adoption as a part and parcel of the regional culture. However, the history of weaving

217 Jitendra Nath Saikia, “A Study of the Working of the Handloom and Textile Sector of Assam”, http://www.fibre2fashion.com/industry-article/5620/a-study-of-the-working-of-the-handloom-and- textile-sector-of-assam (June 19, 2018). 218 Dipendra kumar sarmah, STATUS OF WOMEN ENGAGED IN THE HANDLOOM INDUSTRY IN ASSAM, 1st ed., 2012, pp. 47. 72 in Assam can be traced back to the fourth century B.C where Kautilya in his famous book “Arthasastra” written in first quarter of fourth century B.C. refers to a place “Sauvarnakudya” where he noted down that among all the silk produced i.e. Karpasik (cotton), Dukula (muga silk), Khauma (Eri or endi silk) and Patrorna (mulberry or pat silk) - the Dukula was considered to be the best product from that place which is nothing but the Muga silk itself. In past, every family of the state possesses at least one handloom to meet the basic domestic needs. The ancient literature and archaeological sources gave magnificent evidence of the Assam’s textile, when Assam was better known as Kamrupa. In the Mahabharata, the Kirata army of king Bhagadatha of Kamrupa was described as attired in bark cloth. The mention of cotton in the Kalika purana and Harsacharita gives evidence of the availability of cotton in ancient Assam. Though substantial amount of cotton is produced in Assam, the regions specialization was in varieties of silk.219 Status of Textiles during Ahom rules: During Ahom rule, Assam excelled in the art of handloom weaving, as it was in peak of its fame during their reign. Handloom weaving as a household craft began to flourish and develop during the reign of Ahom Kings (1228- 1826 A.D.) as weavers were made skillful and rapid development of handloom took place. The Ahom ruler ‘Pratap Singha’ also known as ‘Burha Roja’ (old king) witnessed an era of state ruling for textile industry. During his reign spinning and weaving were made mandatory activity to be practiced in every household of the state under the close supervision Momai Tamuli Barbarua, the commander-in-chief of Ahom Kingdom. Rule was enacted that everyday every able- bodied household women before sunset must spin two bundle of silk yarn and defaulters had to bear punishments. It was said that this was carefully and honestly followed by the people then to avoid punishment. Moreover, every year every household had to provide the king one Powa (approximately 250 Grams) of silk yarn as a revenue to the king220 as a result it uplifted the textile production in the Kingdom. Later, the other ruler such as ‘Queen of Siva singha’, ‘Rudra Singha’ also took effective measures for the development of textile industry of the state, after ‘Pratap Singha’. But such compulsion disappeared post Ahom period, though still spinning

219 Sanjita chetia, THE ASSAMESE HANDLOOM AND TEXTILE TRADITION, 1st ed., 2006, pp. 28-29. 220 Supra note 215 at 24. 73 and weaving is in continuity by rural folks of Assam especially in village of Sualkuchi of Kamrup district of Assam where both men and women together carry out the handloom weaving and this place gathered much fame during the Ahom kingdom. However, it was Queen Sarbeswari who invented artistic designs in weaving process of Assam.

5.3 Nature and significance of handloom weaving in Assam Handloom industry of Assam is a rural based cottage industry, which carries out processes such as spinning, weaving and other works associated with it by hand. It not only provides basic amenities to the lives of people but also played an indispensable role in the economic growth of the state. This industry has tremendously contributed towards employment of the unemployed rural folks of the state. As a result weavers play a important role in financial growth of state by exploring the potentiality of increased production of Assamese weavers to cover the export market.221 There are varieties of looms available to carry out the smooth functioning of weaving for domestic as well as commercial purpose. The looms endow a significant relevance in the existing scenario of the state. Handloom weaving in commercial aspect is creating direct profitable employment particularly to the rural poor masses as well as enlarging the base of trade and commerce in the economy of the state. With the moderate commercialization, the textile industry is influencing the socio-economic life of particularly of the rural population by adding to their family income as well as providing self employment and wage employment to the large number of poor people of the backward areas of the state. The important aspect of the textile industry of Assam is that women folk plays the vital role in developing the rural economy of the state. In turn it also helps in maintaining against environmental degradation as silks used in the textile are dependent on plant varieties and silk worms.

5.4 Traditional textile of Assam The traditional textile of Assam has opened out the creativity of the local weavers of the state. The three textile silk mainly mulberry (pat), Muga and Eri is produced in the state apart from cotton textile. The traditional attire woven out of these silk are known for its excellent quality, colour brightness and longevity.

221 Kajal Sharma, “weaving in Assam”, http://www.assams.info/assam/weaving-in-assam (June 20, 2018). 74

Various apparels were made out of this silk, where weavers of Assam beautifully design the borders of the traditional attire such as mekhela, chadar, Riha, Gamosa. In the process the designs used by them are mainly patterns of animal, flowers, birds, diamonds etc that represents the natural beauty having symbolic meaning. Basically, women folks are experts in the area and their works is known for its beauty, comprising traditional design excellence and durability.

5.4.1 Mekhela Mekhela is the most typical traditional item of Assamese women’s dress for lower part of the body. It is worn by women around waist covering till ankle joints having 2-3 pleats in the front side. Its standard size is 250 cm in length and 90 cm in width. The traditional fabric made either of cotton, muga or pat. It is a rectangular piece of woven fabric sewn in lateral sides leaving both the ends (top and bottom) opens. The top end is pleated at the waist in front. It is worn combination with chadar and sometimes occasionally with riha. Even in present society, it is Fig: 1 Decorated Mekhela customary that on day of marriage, a bridegroom must wear it as traditional attire along with chadar and riha. Muga and pat silks are cherished materials for mekhela but now-a-days, such mekhelas produced much by Assamese women’s in their domestic looms and are produced commercially within Assam.222 Floral designs, kalka design and various other geometrical design such as golpata (a type of Assamese necklace), Gamkharu (a type of Assamese bracelet), pakhila- phul (Butterfly design) etc. are used as border placed at bottom with or without butas in the body of the cloth that reflects the elements of natural surroundings. In every aspect, mekhela in its yarn, colour, design, over-all get up shows a visible difference depending on the occasion of its use as well as on the age and marital status of women wearing it. For example- for daily use, a woman wears a simple cotton mekhela, but while visiting namgarh (religious prayer house of Assamese community) women choose to wear simple silk mekhela having flower or

222 Supra note 215 at 83. 75

plant design. Similarly while attending a marriage ceremony, women preferred to use muga or pat mekhela having decorative designs. On the other hand a widow is supposed to wear simple white coloured piece with a simple border or with buta having light green, blue or pink shade. Her way of wearing it is different from that of married women i.e. in much simpler way.223

5.4.2 Chadar Chadar is an unsown item of Assamese women’s wore along with mekhela. Its usual size is 270 cm in length and 90 cm in width. A chadar can be of cotton, muga, pat and eri silk. Wearing of chadar along with mekhela and riha has distinct feelings of decency and modesty in plain Assamese culture. It is worn in such a fashion that one part wraps the upper part of the body and is hung in the left shoulder for covering the chest while the other part is draped at the waist over mekhela224 (fig: 2). Married women use the free end of the upper part as a veil over the head whereas brides on her day were given several plaits vertically in the front side over the chest. The design woven in mekhela is very often woven in chadar in order to make a complete set of the traditional attire.

Fig: 3 Chadar Fig: 2 Chadar wrapped the upper part of the body while the other part is draped at the waist over mekhela

223 Supra note 219 at 71-72. 224 ibid. 76

But sometimes, chadar is also woven as separate pieces to go with any mekhela or to wear the attire in contrast combination. As discussed above the design of chadar is by and large the same that of the mekhela.225 Like silk mekhela, productions of silk chadar are also largely a commercial affair at production centers.

5.4.3 Riha Riha is a typical assamese women attire valued in marriage ceremony and worn by married women in state of Assam. It’s a important part of bridal attire. In Assamese wedding, riha were worn by mother’s of both bride and bridegroom too as a part of tradition. Its usual size is 350 cm in length and 65 cm in width. Rihas are woven in muga, pat

and cotton. It is worn under the chadar but above the mekhela, covering the chest. A part of Riha is passed tightly over the loin region of the body and tied around the waist. The borders of Riha is of lines and bars with different ribbed colour patterns (called Kech) are used as a traditional design in riha. Coloured cotton yarn or gold thread are also used for purpose of designing. Red pattern embroidered at the ends of riha is graceful and symbolic.226 Fig: 4 Riha In ancient days, Assamese women did not wore blouse, so riha was designed in a formal way to cover the portion of the breast. But now-a-days it not a daily wear of women as blouse is day-to day attire. However, riha makes the appearance of Assamese women more graceful with the distinctive style of wearing it. Riha has another name in lower Assam known as Augron but the latter is made out of cotton. 5.4.4 Gamocha Gamocha is basically a textile item used as a assamese traditional towel to wipe body and face and for various other miltipurpose use. It is a piece of cloth bearing multiple meanings that represents the symbol of Assamese life and culture. Its size is of 1.50 metres in length and 0.70 metres in width. It plays a integral part in socio-religious

225 id at 73. 226 ibid. 77

ceremony of Assamese society. It has been used by assamese people since ancient days in religious purpose as well as in day-to day life. It is woven only with white thread with red colour border lines at the ends decorated with different types of design such as japi, flowers, plants in middle part of gamocha. Normally gamosa are weaved through cotton, but when used in some special occasion, gamocha made of silk is used.227 Gamocha is also used as turban by men folk in Bohag-Bihu, national festival of Assam with flap displaying at sides. It is also used in falicitating purpose by neatly folding it and make it wore around the neck to distinguished guests Fig: 5 Gamocha invited in any social function as a symbol of love, affection and respect towards the other person. On the occasion of Bohag- Bihu, it is customary in Assamese society for women to offer Bihuan to her beloved, elders as a symbol of respect. It is a custom that in order to show formal respect towards the superior person, one should offer hand woven Gamocha. A bihuan’s position is the highest among the traditional fabrics of Assam having a sacred dimension. It is used in many purposes such as using it as Gosain-kapoor (God’s cloth), as a thapona (altar) in namgarh (religious prayer house of assamese community) and such type of Gamocha is designed mainly with Sorai (bell metal plate with stand), names of Hari, krishna and Ram weaved in it. It is a traditional custom to offer god and goddess a new Gamocha on the first day of Assamese New year i.e. on Bohag-Bihu. Gamocha has always played a variety of significant role in many occassions of Assam whether be it in Bihu, marriage, in any victory, in any religious purpose, mean to protect itself from sunlight, t etc. it is also used as a assamese flag during bihu in bihutolis(place where bihu functions are held and celebrated among masses of people). Thus, it is used as a cultural identity of

227 id at 69-70. 78

Assamese people which is a indispensable part and parcel of Assamese society and the designs used it in are traditional..228

5.5 Mode of production of textile in Assam 5.5.1 Raw materials For production of textile, yarn is the essential raw material. Yarn includes Pat, muga, eri and cotton. People from Assamese society collect fibres from various trees such as Mora paat (jute), Mest paat, Riha, Kukurshuta (grewia sepiaria) etc. to produce yarn.229 So, such fibres plants is required to be preserved as there exist possibilities to apply it in textile industry. Traditionally when utilisation of the items were by and large family oriented, there did not exist any practical and useful specialization on production of textile. But gradually with time and expansion of market within and beyond the state, a section of people has engaged itself in supplying raw materials to the weaving centres and as in context of the present study, researcher found that weaving units obtains yarns from local markets.230 However, a brief description of the yarns are discussed below: a) Muga silk: Muga silk is the pride of Assam which is a golden yellow coloured silk. It is produced by a semi- domesticated silkworm known as muga (scientific name- ‘Antheraea Assama’). This silk worm feeds mainly on plants of Som (‘machilus bombychina’) and Saalu (‘Litsaea salicifolia’) which is

Fig: 6 Muga silk worms Fig: 7 Muga Silk

228 Supra note 215 at 86-88. 229Shodhganga, “Chapter- III- Traditional Textile” http://shodhganga.inflibnet.ac.in/bitstream/10603/50294/9/09_chapter%203.pdf (accessed on June 21, 2018, at 10:07 AM). 230 Supra note 219 at 54. 79 considered as prime plants for hosting muga silkworm and carries out the life cycle of “50 days in summer and 150 days in winter”.231 The worm is native of Brahamputra valley and with great care and preservence reared in districts of upper Assam i.e. Lakhimpur, Jorhat, Sibsagar and Golaghat. Assam is producer of muga silk which is geographically labeled to the state. The muga silk worms are wild and cannot be alive in any climate other than the climate of Assam and it is reared outdoors. Textile made out of muga silk identifies the tradition and culture of the state. In fact, it is one of the most expensive silk among other indigenous silk of the state and known for its durability. As a result it is no longer within the common weavers. However mekhela chadar or other dresses made out of this silk contains rich traditional design embroidery as that of flower, Bihu structural elements, trees, plants etc. that makes its appearance more graceful and the attire is considered as one of the most precious, durable and elegant for women of Assamese society. The natural golden colour and glowing shine of the fabric together makes the muga silk more unique and distinguished from other silks. In order to make the textile more attractive made out of these silk, embroidered designs along with zari work and varieties of colour combination is used to make its features unique.232 Traditional designs such as japi, Gach buta, magar etc is created in it with combination of red, black, pink, green fabric that makes the appearance of the textile much more beautiful. It is up to the designer, the design that they would like to carry out while designing muga textile with various colours, patterns and textures in the existing traditional design. b) Pat silk: Pat (mulberry) silk, as a raw material for Assamese textile has been used since ancient era and is produced from a silkworm known as “Bombyx mori” (Fig 8) that feeds only on mulberry leaf (“morus indica”) and the term ‘mulberry silk’ has derived its name from this plant. This silk is reared indoor and is completely carried out domestically, where few peoples chooses rearing of silkworm as their main occupation. In Assam, the culture of mulberry silk is carried out on basis of large-scale. Although every district of Assam produces mulberry silk but Sualkuchi

231 Supra note 229 at 114. 232Craftsvilla, “Muga silk : The History of the golden treasure of Assam”, https://www.craftsvilla.com/blog/muga-silk-history-weaving-facts/ (accessed on June 21, 2018 at 1:33 PM). 80 is the main weaving centre of the state. The climatic condition of Assam is very much favorable for mulberry silk. The silk worm carries out a life cycle of 60 days.233 The worm produces white creamy coloured silk. The mulberry yarn is generally reeled by many families in the rural areas of Assam through manually operated and reeling machines.

Fig: 8 ‘ Bombyx mori ’ - Silkworm used fo r Fig: 9 Pat silk pat The yarn that is locally reeled at domestic level is too insufficient in quantity to meet the required demand for commercial purpose. For all these difficulties, now-a-days it is seen that mulberry yarn produced and twisted in Bangalore, Karnataka. c) Eri silk: Eri (endi) silk worm is reared all over the state of Assam and has been used as a raw material since ancient times for making Assamese

Fig: 10 Eri silk worm Fig: 11 Eri silk textile. Endi silk worm (Philosamis ricini) has derived its name from the castor oil plant (‘Ricinus communis’), called Eri in Assamese on which it usually feeds. Endi cocoons are not continuous one but open at one end for which the silk does not form a

233 Supra note 229 at 114. 81 continuous fibre. Hence, cacoon is spunned by hand by using ‘charkha’ or ‘takuri’ appliances and not reeled. The life cycle of eri silk worm is of “minimum 44 days in summer and maximum 85 days in winter”. The fabrics made out from yarns of eri are generally rough than that of other silks but is known for its nature of durability and warmth. Spinning of eri silk in spindles is marked as a interesting and unique features by rural women folks of Assam while they are on the move. This silk is mainly used for the purpose to weave shawls in winter along with other occasional dresses. In course of use and wash of textile made up of eri silk, it is observed that the colour and fibres becomes brighter and improved.234 d) Cotton silk: Cotton is the major raw material used in the indigenous handloom weaving for production of different textile items. In ancient days, cotton was produced as a household crop and spun into yarn by tribal populations in Assam. But, now-a- days, easy availability of mill made yarns of different varieties even in rural shops and bazaars has reduced down. The importance of cotton growing and spinning. Spinning of cotton into yarns from cotton balls brought from the shop or occasionally from the cotton Fig: 12 Cotton silk cultivated at home is to some extend Use the old indigenous tools. It has always played a significant role in socio-economic life of the people, mainly on specialized weavers’ of villages. Cotton plant is generally a crop that grows annually whereas there is also existence of everlasting plants which require about six months bearing the fibers. Sufficient amount of sunshine, warm weather, moisture for growth are very much favorable for cotton and post period of three months flowers in the plants grows, and plant have the cotton balls and inside it, seeds of cotton are available. And from seeds, it is extracted to produce cotton silk undergoing through various indigenous processes.235

234 id. 235 Supra note 215 at 96. 82

5.5.2 Looms and Accessories Handloom is a simple machine that can be adjusted to weave from a simple plain piece of fabric to a diverse and complicated artistic design, but the charm of its production largely depends upon the manual skill of the weaver. In comparison to power looms, a handloom always proves to be better and successful in weaving the finest quality of the cloth and the most delicate patterns with extra weft.

Fig: 13 Handloom Fig: 14 Power loom In Assam, the traditional looms that were mostly in use are loin loom and the throw-shuttle loom. Each of these looms possesses certain special features that make one distinct from that of another. Loin loom: Loin loom is the common loom used in hilly areas of Assam. This loom is very simple, transportable and convenient to erect and disassemble. The dense texture of the cloth woven in this loom and its complicated designs in it are the most important factors for which it has been in popularity. This loom is mainly used by peoples of hill tribes but not totally non-existent among

Fig: 15 Loin loom the plain people of Assam. . In fact, this loom is part and parcel 83 of the textile tradition.236 This loom is not made of any particular frame or pleasant structure but consists of two vertical bamboo poles between which another bamboo pole is made horizontally. Few pieces of robust bamboo and wooden rods of diversified thickness are used as accessories of this loom. This loom is compatible for weaving plain cloth but for design, it requires number of heald sticks and with every complex design heald sticks gets increase. Throw-shuttle loom: The throw-shuttle loom is a variety of loom in which a simple shuttle and a sley is used without having a race board and shuttle box. The shuttle box is thrown by hand through the shed of warp from one side and received by the other hand on the other side. It is most common and traditional loom used by the Assamese communities including those Fig: 16 Throw - shuttle loom from Sualkuchi. This traditional loom still holds an immense cultural significance among weavers all over the state. The accessories required for the existing throw-shuttle loom are very simple and can easily be made out of indigenous materials like bamboo and woods. As such it is easily accessible to the rural folks of Assam.237

5.5.3 Dyes and dyeing practices Use of myriad colours in handloom products is a unique feature of the textile tradition of Assam. Under weaving, dyeing is another important secondary craft. Since ancient times, Assam had a great wealth of indigenous dyes, yielding all the colours that the weavers required. These were found in very large quantity in or near every village and dyeing was a common craft and art-form of rural Assam. It’s been indispensable part of traditional textiles of Assam. The yarns for

236 id. 237 ibid. 84

using in textile were dyed by the weavers either with natural or synthetic dye. Natural dye resources can be extracted from vegetables, animals and minerals.238 But at present natural dye is at edge of disappearance as dye- stuffs and the process of dyeing are often guarded as secrets and are not disclosed to outsiders. This could be one of the factors that present generations are not much aware of indigenous natural dye and easy availability of synthetic

Fig: 17 Dyeing of Silk dyes in the market could be another factor. It’s been seem that in present days art of dyeing with local native dyes is an important facet of traditional handloom which is in fashion. Yet, some of the local native dye materials are still found around the surroundings of villages. However, demand of eco-friendly dyes, should be systematized and geared up in right direction.239

5.6 Traditional designs used in Assamese textile Textile designing has been a very ancient art in state of Assam. The traditional attire of the state such as Mekhela Sadar, Japi, Riha, Gamocha etc., Assamese traditional design is used in large amount for fabric designing. The variety of design and colour used in textile sector is extensive and colourful yet carries a flawless simplicity and never-ending charm. Although intricate weaving techniques and thick figurative ornamentation are not generally related with Assamese textiles, major design components are derived from natures such as floral designs, animal designs, geometrical design like pakhila phul, golpata, gamkharu etc. Generally geometric and floral designs are small and sometimes it exquisitely twisted with other fibers producing wide range of design all over the traditional Assamese costume.240 A textile designer has always shown a deep love for nature in conformity with the general requirement of designing a textile. The designer mediates

238 Supra note 229 at 116. 239 Supra note 215 at 100. 240Naveen v. Padaki, et al., “Traditional Textile designs and costumes of Assam”, http://www.fibre2fashion.com/industry-article/6865/traditional-textile-designs-and-costumes-of-assam (June 22, 2018). 85 and studies the forms of natural objects, landscapes, hues of men, animals and birds; and collects all the materials for his designs, forms and colours from the nature. Then the designer translates these forms into decorative designs and subsequently ends up into innumerable varieties of patterns. Thus, the textile sector of Assam displays various designs with the distinct symbolic meanings.

5.6.1 Types of Designs used in Traditional textile of Assam 1. Kingkhap Design: In 14th century, during the reign of Ahom kingdom, designs of lions and peacocks were used as a royal emblem for designing the dress items of the aristocrats. This design is known as Kingkhap design as it symbolizes the royalty and generosity of the former Ahom kingdom. This design consists of ‘two lions facing each other’. Formerly the traditional design consisted of rhinos, but in order to signify the royalty of Ahom kingdom, they replaced them with lions.241 This design is one of the interesting as well as most commonly used traditional Assamese design having a symbolic meaning. This design is much valued since ancient days and has been Fig: 18 Kingkhap Design continuing through generations. However, at present days, this design is depicted in a slightly form or in combination with other various designs along with the two lions. As this design was earlier used in Ahom king’s and Queen dress woven with gold and silk but now-a-days it is used for bride’s mekhela-chadar and riha.242

241 Ravi Mokashi, “Silk weaving Tradition of Sualkuchi, Assam”, http://dsource.in/resource/silk- weaving-tradition-sualkuchi-assam/motiffs (June 22, 2018). 242 Supra note 219 at 89. 86

2. Kaziranga Design: Kaziranga design is one of the commonly used designs in Assamese textile and has been derived from the ‘Kaziranga National Park’, the most remarkable wildlife sanctuary of Assam. This design consists of Rhino, deer, Birds, Flowers and creeper that abound in Kaziranga. This design is

Fig: 19: Kaziranga Design

Fig: 19 Kaziranga Design mostly woven in pat silk and pat-muga mekhela- sadar, shawl.243 This design is inspired by the national park of the state and this design represents the pride the state in unique way by applying in on Assam’s textile.

3. Gamkharu Design: Gamkharu design has been derived from an Assamese bracelet called ‘Gamkharu’ which is a traditional part of Assamese costume. This design is used for the lower border in the Pat or Muga mekhela and in aasol of the chadar, while the side borders a chadar consists of half of the gamkharu design. In bihu festival, a women generally wear set of muga mekhela chadar having thereon gamkharu design. Fig: 20 Gamkharu design Because during Assamese new

243 id. 87 year eve, the Assamese girls wears ‘Gamkharu’ for purpose of dancing Bihu. So, the origin of this design can be traced to that bracelet Gamkharu.244 4. Japi Design: Japi design is derived from the cultural traditional of Assamese society which represents the traditional cap/headgear of the state which farmers use to wear to protect itself from sun and rain. This design is used on borders of Gamocha and also in mekhela-chadar. The japi design is decorated with circle, temple shape, design with a half star. It is inherently associated with Assamese culture.245 This design is used in Assamese garments to represent the assamese culture with symbolic Fig: 21 Japi Design meaning. 5. Junbiri Design: Junbiri design has a structural form and the design has been derived from the traditional necklace of the Assamese culture ‘Junbiri’. It is basically an ornament of women. It is like a sickle shape which can be compared to a crescent moon shape. It is decorated with butterfly and beads and also known as ornamental design.246 This design is mainly woven in Assamese textile engraved with lots of designs.

Fig: 22 Junbiri Design

244 Id. 245 Supra note 240 at 6. 246 Supra note 219 at 90. 88

6. Gach pat design: Gach pat (plant) designs along with design of creeper are abundantly used in Assamese textile. It can be used as textile design either singly or with other variety of designs. Variety of gach design, from simplest configurations to the most complex suitably used as ‘Butas’ in different items producers by the weavers through weaving it. This design is one of the most

Fig: 23 Gach Pat Design Fig: 24 Gach Buta Design commonly found designs in Assamese traditional attires. However, the shapes and design, colour texture varies according to the weavers. This design offers unlimited scope of adornment of textiles.247 However, the power of observation and immense capability of the indigenous weavers to render objects of nature into designing of textile has contributed towards the enrichment of the Assam’s traditional textile sector.

5.7 Mode of preservation of design The designs are worked by the weavers in Assam from the old scrap of designs or from a separate design catalogue. Most Assamese weavers bear good collection of designs of their own. But variation in mode of preservation of designs varies from weavers to weavers. And preservation of designs in Assamese society is itself an art that evolved through different stages. In ancient days, simple designs were worked out in banana leaf (in Assamese- kalpat) for learning the technique of incorporating the design in weaving. Since, the banana leaves were not durable, so the designs were subsequently worked out on areca palm trees (in Assamese dhakua). In this method, indigenous weavers weave the design on a bend

247 Supra note 215 at 121. 89 rough yarn with fine bamboo sticks. These designs are usually woven in a measurement that varies according to the availability of design and material. This sort of design can be preserved comparatively for longer period. The indigenous weavers consider this method as valuable articles and never part with them. They also collect the designs on net like cloth where designs are created with needle.248 However, in present days, in order to preserve a design weavers use graph paper to draw a design. And designers and weavers evolved new designs from that of traditional design without disturbing its identity and these designs may suitably be used in a range of products for different end uses. From view of legal aspects, researcher observed that as in ancient times designs were preserved in various methods and used them as catalogue, it is eligible to be protected under Design Act, 2000 as such catalogue is the evidence of their intellectual creation. As such creation includes the novelty as well as other requirements incorporated under the Act.

5.8 Law and policy framework in Assam’s textile sector 5.8.1 Ancient Period Textile industry of Assam holds its reputation since from the early time of Ahom’s reign. It began to flourish and reached the height of perfection during the Ahom era. During Ahom days, every woman i.e. from queen to ordinary women knew art of weaving as it was a part of their household work and during that period every people wore clothes woven at their own looms. During that period weavers among Hindus were called as ‘Tantis’ and that among Muslims were called as ‘Jolas’. But, these Tantis and Jolas never supplied clothes to ordinary people except the members of the royal families. For these services, they were rented free lands, exempted them from physical labour and provided other requirements as rewards. As incentives, a special separate department was established by the Ahom rulers to motivate the silk industry of Assam and to stick up the royal wardrobes. The duty of this department was to check the quality production of the clothes in order to entice the attraction of outside territory. The Ahom rulers solve the problems of constant supply and remittance of revenue by the artisans towards the state by taking bold measures as Ahom ruler’s often engage in warfare

248 id. 90 against Mughals and require huge amount of sums for supply of clothes i.e. uniform to the soldiers. Absolute dominance of Ahom rulers improved the silk industry of the state by leaps and bounds. Initiatives were taken up by rulers to supply arrangements for producing best quality of silk and forbidding importation of ‘royal tailored robes’ from outside region. This motivated the weaver families to supply royal robes as it was a profitable work.249 Though regulations existed in ancient period in order to popularize silk industry in commercial aspects, but such laws were not enacted in any statutes. Researcher observed that at that period too, intellectual property rights were practiced but in an unaware manner. Rulers motivated the weavers to create materials through their intellectual creativity and to use them in commercial aspects. For such creations they were provided with incentives rewards too as that intellectual property rights perform. But due to failure of enacting such laws, objective of intellectual property rights failed to connect in that period.

5.8.2 Current scenario The state of Assam has a strong base in textile sector that has improved the commercialization of the state profusely. Many schemes and policies were enacted by government of Assam to further empower the livelihood of weavers as well the textile industry of the states. For promotion of handloom and textile sectors “The Directorate of Handloom and textiles”, under the government of Assam has taken active role in International and national events. Recently, the directorate has engaged as a partner state in the “Textiles India 2017” in an international mega event held at Gujarat. Assam, as a partner state had obtained the opportunity of displaying the legacy of textile available in the state. However, in order to promote the Raw materials of the state i.e. Pat, Eri and Muga, Government of Assam has initiated a central sponsored scheme “Catalytic Development Programme (CDP)” through ‘central silk Board’ in alliance with the ‘State sericulture Directorate of Assam’. Under this scheme, through the ‘State sericulture Directorate of Assam’, financial aid is provided to the ‘stakeholders of silk industry.’ The elements under CDP contemplated development and growth of production of seeds, infrastructure of farm and cacoon, improvement of technologies of reeling and processing of the silk,

249Shodhganga, “Industries of Assam during the Ahom reign”, http://shodhganga.inflibnet.ac.in/bitstream/10603/145015/12/12_chapter%203.pdf (accessed on June 23, 2018 at 1:01 AM). 91 and encouragement for growth and publicity. To increase Muga production in the state, Rs. 100 crore was allocated by the government in the state budget of 2017-18. Moreover to safeguard the interest of the consumers, ‘central Silk Board by Ministry of textile’ has formulated a “Silk Mark Scheme” to popularize the production made of pure silk through ‘Silk mark organization of India”. This scheme was formulated as silk mark provides the assurance of quality of pure silk covering all variations of silk including Pat, Muga and Eri silk. Further Muga silk has been registered under “Geographical Indication of goods (Registration & protection) Act, 1999.”250 Recently in 2017, under the ministry of Sarbananda Sonowal, the Government of Assam has announced to prepare a “Textile policy” for providing a serious twist to the “handloom and textile sector of the state”. This policy aims to combine the production and marketing sector of handloom and textile sector, for “economically empowering the weavers and making a niche for handicrafts of the state in world market.”251

5.9 Conclusion Assam is a state, rich in cultural heritage. It is a producer state of silk and Muga silk is considered to be its pride, as this silk is found nowhere in any parts of the state. Woven textile is a part of tradition and culture of the state. The traditional costume of the state made up of Pat, muga and Eri silk are considered to be part and parcel of Assamese society. This textile silk has always played a remarkable and significant role in identifying the Assamese culture. Weaving of textile is usually found in rural areas of the state and every traditional design used in the textiles represents symbolic meaning. Not only design, but colour patterns too had played a significant role in production of textile of the state as traditional designs and colours is regarded as the distinctive features of Assam’s traditional textiles. Designs are the integral element of weaving. Thus, the traditional design when applied to the traditional textile sector of Assam with modern touch, adds a flawless simplicity and

250Refer Government of Assam, “Handloom and Textile- Advantage Assam”, https://advantageassam.com/assets/front/pdf/Textile.pdf (accessed on June 23, 2018 at 2:40 Am). 251 Bikash Singh, “Assam to formulate textile policy for giving a major fillip to handloom & textile sector in the state”, https://economictimes.indiatimes.com/industry/cons-products/garments-/- textiles/assam-to-formulate-textile-policy-for-giving-a-major-fillip-to-handloom-textile-sector-in-the- state/articleshow/59074601.cms (June 23, 2018). 92 endless charm to it. Hence, it can be said that though IP laws were related to textile sector of Assam since time immeasurable but such was not enforced. In fact in current scenario it is been noticed that common laws, schemes and policies were enforced by the government of Assam but absence of efficient design laws in action.

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CHAPTER-VI

ANALYSIS OF EMPERICAL STUDY IN RELATION TO DESIGN ACT, 2000 IN CONTEXT OF ASSAM’S TEXTILE SECTOR

6.1 Introduction Textile is part and parcel of human being, right from birth-to-death. It can be made from many substances i.e. plant, mineral, animal and other synthetic materials. The process and materials used to make textile has enlarged extremely covering way for industrialization and innovations. Textile industry of Assam is one of the most popular industries, as it is a home producer of silk and Sualkuchi had played its eminent role for its contribution towards the upliftment of the textile industry of Assam. The designs applicable to the textile sector of the state are basically traditional designs derived from nature, traditional Jewelleries, traditional cap etc. However, in current scenario, there undergoes revolution of designing through use of various techniques like that of using brocade designs, blending various materials to give a new creative touch in designs, use of block prints etc. in the traditional attire of the state. Recent times, it has been observed that many designs in textile were designed by using technology of computer-Aided Design (CAD) making the appearance of the garments more appealable to the eye. So, it can be said that tremendous remarkable changes has undergone in context of design and such designs requires to be protected under design Act, 2000 as this Act under section 2 (d) protects those designs which are novel, distinctive, having a visual appeal in the “shape configuration, pattern or ornamentation or composition of lines or colors applied to such article in any form by any industrial process”.252

6.2 Significance of the study In this work, researcher conducted an empirical research study to find out some relevant information’s about designs applied to traditional textile sector of Assam. Researcher motive behind this study is to find out whether people of Assam engaged in business of textile sector are aware of Intellectual property law and to find out if they are aware of their rights granted under Design Act, 2000. As intellectual property rights protects the rights of a creator, so at the same time researcher attempted to the best its capability to spread awareness of the existing laws

252 Section 2 (d) of the Design Act, 2000. 94 available and also attempted to find out the problems of the respondents faced by them in their day-to-day life engaging in textile study through this study. Through this study, researcher expected to provide information’s to people to have knowledge about this law, so that proper precautions could be taken up against misappropriation. The researcher also tried to understand through the people in the field, role of government in their journey, any aid or vice-versa. The researcher aimed to find out whether traditional designs of textile sector of Assam are protected. But through the entire study researcher reached at a point that traditional designs used in designing the textile has been in use from generations to generations and such designs are traditional knowledge’s of Assamese community which are derived from the natures, tradition and cultures of Assam. So, as Intellectual property rights does not protect traditional knowledge, as it’s a collective right and such contain prior publication and it is a known design. IP only protects monopoly right of a creator. So when these traditional designs are modified with variety of new textures, pattern resulting in a unique creative design, then such design can be protected under Industrial Design Act, 2000.

6.3 Data Sources Data has been collected from the four top-most Designers of Assam, boutiques, government offices, and entrepreneurs from Sualkuchi under the Kamrup district engaged in textile sector of Assam. It is worth mentioning that researcher has come across various peoples, from designers to that of weavers who are conversant in the field of textile sector. They are not only knowledgeable and ingenious but also good interpreters which help the researcher in conducting the study in an organized way. The study was however conducted with doctrinal method as well as empirical method with the aid of interview schedule and set of framed questionnaires.253 The interview sessions were conducted as per convenient schedule of the designers and government officers254 and questions for the purpose were framed in such a way to acquire vast relatable information related to the study such as realization of Design law under IPR, precautions against misappropriation of designs, sources of textile, types of process used in designing a traditional attire, requirement

253 Enclosed in Appendix. 254 Enclosed acknowledgement certificate in Appendix. 95 of time in creation of a unique design, possession of number of factories and looms which indicates the employment of people in the field, dimension of commercial trading, technique adopted for branding of designs and also to know the opinions regarding the protection of textile designs of the state and to ascertain the experience of the respondents in the respective field. On the other hand, the questionnaire was framed with set of questions to obtain knowledge about facts known to the informant. The questionnaire was prepared to collect data from resource boutiques, institutes, entrepreneurs etc. During the conduction of the study, researcher itself engaged in discussions related to the study and that of tools that requires in producing attire were taken up. However, due to shortage of time, researcher had to limit the empirical study to few respondents.

6.4 Questions forwarded during Questionnaire and Interview Survey The Questions forwarded in questionnaire and interviews are almost same that are stated below:

1. Are you aware of Intellectual Property Rights? 2. Are you aware of the Industrial Design Act, 2000? 3. Whether you have registered your textile design? 4. Whether the designs are handmade or machine made? 5. What type of textile/silk you mainly use? 6. What type of thread you use in your design in the traditional costumes? 7. What type of traditional costumes you use to apply your designs? 8. What type of traditional design process you mainly use in designing a costume? 9. What kind of dyeing is used in your work? 10. Is it a part of your family tradition? 11. Are you an exclusive designer, supplier or distributor? 12. What are the types of market you mainly deal with? 13. Has your design been copied by other person? If yes, what steps was taken by you? 14. What Precautions/steps do you take to protect your designs? 15. What type of designs are used in your work? 16. What is the specific technique you are using in your design? 17. What is your main specialization in design? 18. How much days is required to create a unique design? 96

19. How long you been engaged in the business? 20. How many people are engaged in your business? 21. What procedure you follow for branding your design? 22. What are your sources of textile? 23. Do you face any kind of problem in your profession? If yes, elaborate. 24. Have you ever got any support from government? If yes, elaborate? If no, then state what kind of support you would like to seek from them. 25. According to you what steps should be taken to protect the textile design of Assam? Any suggestion/measures in context of textile sector of Assam?

6.5 Responses from the respondents On the paper “Expounding Design Act, 2000 in context of Assam’s textile sector” researcher conducted an empirical study and data collected were through interview and questionnaire method to receive relevant information in the subject-matter. The survey was conducted through interview method on four well- known designers and a government officer of textile sector. While out of ten questionnaires, seven questionnaires were responded that consist of four well known boutiques, one entrepreneur, one private institute of textile and one government officer of weaving centre. Among the interview survey, four were female designer’s respondent and one male respondent. While in questionnaire survey, out of the four boutiques, questionnaires were filled up by three boutiques that were handled by male while other remaining boutique was handled by an age old female, female entrepreneur, the private institute of textile was headed by a female, and a male government officer of weaving centre. 6.5.1 Questionnaire survey 1. Bibhusaa Boutique Name of the respondent: Dhiraj Deka (Designer) Age : 37 years Sex : Male Occupation : Business (owner of Bibhusaa Boutique) Place of survey : Respondents Boutique Date of survey : 2nd June, 2018 Dhiraj Deka, aged 37 years, inhabitant of Church complex, Kamarpatty, Panbazar, Guwahati, has been engaged in this business since 12 years and had specify that this 97 business is not a part of his family traditions. Through the survey he responded that he is not aware of Intellectual property rights and Design Act, 2000. He never did register his designs as he was unaware of the mentioned law. He too responded that while designing his textile he use the techniques of hand-made designs and he mainly use Muga, Pat and Eri type of textile/silk. While designing the traditional costume of Assam i.e. Mekhela chadar, he prefer to use Muga, Pat and Eri thread engaging 50-60 people in his business. He mainly prefers to use traditional designs in the costumes by applying Gos buta design, Miri design, Kingkhap designs etc. which nearly takes about 20-25 days with modern touch to the designs to make it more attractive and appealable to eye. His business mainly deals in local and national markets; branding his designs through Magazines, shows and social media in an official Facebook page and his sources of textile are from local markets of the state. From his responds, it came into light that his designs been never copied by others and he design his material in a typical way as a precautions to protect his designs beforehand. He never faced any problem in his occupation as he received subsidy from Government of Assam and lastly at his opinion he shared he will be pleased if government of Assam takes some steps to skill up the weavers and promote Assam’s textile sector in national and international field. 2. Von’s Boutique Name of the respondent: Deepti Goswami (Supplier) Age : 69 years Sex : Female Occupation : Business (owner of Von’s Boutique) Place of survey : Respondents Boutique Date of survey : 2nd June, 2018 Deepti Goswami, aged 69 years is inhabitant of Kamarpatty, Fancy Bazar, Guwahati, has been engaged in this business since 30 years and had specify that this business is not a part of her family traditions. Through the survey she responded that she is not aware of Intellectual property rights and Design Act, 2000. She never did register her designs as she was unaware of the mentioned law. She too responded that while designing her textile she use the techniques of both hand-made and machine made designs and she mainly use cotton type of textile/silk. While designing the traditional costume of Assam i.e. Mekhela chadar, she prefer to use Jari cotton thread engaging 20 people in her business. She mainly prefers to use small print designs in the 98 costumes by applying the technique/tools of block print designs, hand print designs which nearly takes about 15-20 days. Her business mainly deals with local markets; branding her design through exhibitions in von’s boutique itself and her sources of textile are mainly from city of Kolkata, west Bengal. From her responds, it came into light that her designs been copied by others and she never took any steps, neither she took any precautions to protect her designs beforehand as she was unaware of the existing laws. The problems she faced in her occupations is of duplications of her designs, Assam’s climate does not suit her block print designs for which she bears difficulty as she requires to import such design from Kolkata. Lastly, at her opinion she shared that she will be pleased if government of Assam supports young people interested in this field with proper training and guidance by providing them financial help and also suggested to introduce block printing design tools in context of textile sector in Assam. 3. Saikia’s Fashion Boutique Name of the respondent: Chandan Saikia (Designer) Age : 31 years Sex : Male Occupation : Business (owner of Saikia’s Fashion Boutique) Place of survey : Respondents Boutique Date of survey : 27 April, 2018 Chandan Saikia, aged 31 years, inhabitant of Lamb Road, Ambari, Guwahati, has been engaged in this business since 30 years and had specify that this business is a part of his family traditions. Through the survey he responded that he is not aware of Intellectual property rights and Design Act, 2000. He never did register his designs as he was unaware of the mentioned law. He too responded that while designing his textile he use the techniques of hand-made designs and he mainly use Muga, Pat and Eri type of textile/silk. While designing the traditional costume of Assam i.e. Mekhela chadar, Riha he prefer to use Muga, and other thread engaging 80 people in his business. He mainly prefers to use traditional designs in the costumes by applying Gos buta design, Mayur design, Kingkhap designs, Magar design, Japi design, Golap phul design etc. which nearly takes about 30 days giving modern touch to the designs to make it more attractive and appealable to eye. His business mainly deals in local and national markets; branding his designs through Magazines and social media in an official Facebook page and his sources of textile is from Sualkuchi, kamrup district, 99

Assam. From his responds, it came into light that his designs been copied by others and he never allows anyone visiting his boutique to click photographs of his design as a precautions to protect his designs beforehand. He never faced any problem in his occupation. Lastly at his opinion he shared that he will be pleased if government of Assam provides them subsidy to conduct their business in a more efficient way and suggested to improve the textile sector of Assam in a better way by trending the textile sector of Assam. 4. Konyak Marketing Boutique Name of the respondent: Om Sahani (Retailer) Age : 36 years Sex : Male Occupation : Business (owner of Konyak Marketing Boutique) Place of survey : Respondents Boutique Date of survey : 2nd June, 2018 Om Sahani, aged 36 years, inhabitants of Uzanbazar, Guwahati, has been engaged in this business since 10 years and had specify that this business is a part of his family traditions. Through the survey he responded that he had heard about Intellectual property rights but not at all aware of Design Act, 2000. He never did register his designs as he was unaware of the mentioned law. He too responded that while designing his textile he use the techniques of hand-made designs and he mainly use Muga, Pat and Eri type of textile/silk. While designing the all the traditional costumes of Assam, he prefer to use Muga Pat and Eri thread engaging 29 people in his business. He mainly prefers to use traditional designs in the costumes by applying mainly Kingkhap and Buta designs through technique of natural dye and blending silk with cotton and such preparation of design nearly takes about 20 days, making appearance of such design more attractive and appealable to eye. His business mainly deals national markets; branding his designs by displaying it in store and his sources of textile is from his self-owned loom. From his responds, it came into light that he has no idea whether his design been copied and under common parlance; and whatever best is possible undertakes precautions to protect his designs beforehand. He never faced any problem in his occupation. Lastly at his opinion he shared that he will be pleased if government of Assam takes strict action in preventing duplications of designs in context of Assam’s textile sector. 100

5. Entrepreneur Name of the respondent: Dr. Nandini Sarma (Distributor) Age : 49 years Sex : Female Occupation : Associate professor of History Place of survey : Respondents house Date of survey : 27 April, 2018 Dr. Nandini Sarma, aged 49 years is inhabitant of Silphukhuri, Guwahati, has been engaged in this business since 15 years and had specify that this business is a part of her family traditions. Through the survey she responded that she had heard about Intellectual property rights but not at all aware of Design Act, 2000. She never did register her designs as she was unaware of the mentioned law. She too responded that while designing her textile she use the techniques of both hand-made and machine made designs and she mainly use pat and other type of textile/silk. While designing the traditional costume of Assam i.e. Mekhela chadar, Riha she prefer to use Pat and Eri thread engaging 25-30 people in her business. She mainly prefers to use Kingkhap, gos buta, lata, Miri and dimasa designs in the costumes by applying the technique of blending, natural and artificial dyeing which nearly takes about 25 days. Her business mainly deals with local markets; not following any procedures for branding her designs and her sources of textile are secondary sources i.e. from whole sellers. From her responds, it came into light that her designs been never copied by others and she takes necessary precautions beforehand to protect her design under common knowledge. She never faced any problem in her field. Lastly at her opinion she shared that she will be pleased if government of Assam takes conducts frequent workshops for spreading awareness of textile sector of Assam. 6. JD Institute of Fashion Technology Name of the respondent: Monalisha Goswami Age : 30 years Sex : Female Occupation : Admin of the institute Place of survey : Respondents institute Date of Survey : 30th April, 2018 Monalisha Goswami, aged 30 years is inhabitant of Rajgarh Guwahati, has been engaged in this business since more than 15 years and had specify that this business is 101 not a part of her family traditions. Through the survey she responded that she had heard about Intellectual property rights but not at all aware of Design Act, 2000. Her institute never did register the designs created as are unaware of the mentioned law. She too responded that while designing textile her institute use the techniques of both hand-made and machine made designs and she mainly use other type of textile/silk other than traditional silk of Assam. While designing the traditional costume of Assam her institute prefers to use other type of thread apart from Muga, Pat and Eri engaging 50-60 people in her business. She mainly prefers to use embroidery designs in the costumes by applying different types of technique like that of CAD which nearly takes about 10-15 days. Her business mainly deals with international markets; branding institute designs through social media, print media, posters, hoardings etc. and sources of textile of the institute is from different textile laboratories through time to time visit to the laboratories. From her responds, it came into light that designs of the institute been never copied by others and have patented few innovative designs of the students of the institute. The institute never faced any problem in the field and many of their students are engaged in government projects, having professionals from handloom industry for conducting seminars. Lastly at her opinion she shared that she will be pleased if government of Assam avails new advance machinery. 7. Weaving service centre of Indian Institute of Handloom Technology, Guwahati, Assam Name of the respondent: Bhupen Khangia phookan (Designer) Age : 55 years Sex : Male Occupation : Government service (Textile designer) Place of survey : Respondents institute Date of Survey : 5th June, 2018 Bhupen Khangia phookan, aged 55 years is inhabitant of Jawaharnagar, Khanapara, Guwahati, has been engaged in this service since more than 40 years and had specify that this business is not a part of her family traditions. Through the survey he responded that he is aware of Intellectual property Rights and that of Design Act, 2000. His institute did register the designs created under the said Act. He too responded that while designing textile his institute use the techniques of both hand- made and machine made designs and they mainly use Muga, Pat, Eri and other type of textile/silk. While designing the traditional costume of Assam his institute prefers to 102 use Muga, Pat, Eri and other type of thread engaging 30 people in the business. He mainly prefers to use traditional designs in the costumes by applying colour and brush technique in manually designs which nearly takes about 1-2 days. Her business mainly deals with local, national and international markets; branding institute designs through different type of government field activities. From his responds, it came into light that designs of the institute been never copied by others and basically use CAD through CAD key as a precautions to protect the designs beforehand. The institute never faced any problem in the field and had obtained complete support from its own government departmental administrator. Lastly at his opinion he shared that as a government employee in the field of textile sector of the state, his institute will hard work for peoples related to the textile industry by providing them knowledge to deal with textile technology in textile field of Assam. 6.5.2 Interview survey 1. Fashion Designer Name of the respondent: Sanjukta Dutta Age : 44 years Sex : Female Occupation : Fashion designer Place of interview : Respondent’s studio Date of interview : 7th May, 2018 Sanjukta Dutta, aged 44 years is inhabitant of Basisthpur, Guwahati. She is a renowned fashion designer of Assam, in fact one of the top-most designer of Assam dealing with traditional attire of the state, has been recently conferred with “Dada Saheb Phalke Excellence Awards”. She has been engaged in this business since 6 years after leaving her secured Government job as an Assistant Engineer at Public works Department (PWD) to fulfill her passionate love for Assamese traditional Mekela chadar. She had specified that this business is not a part of her family traditions. Through the survey she responded that she is not aware of Intellectual property rights and Design Act, 2000. She never did register her designs as she was unaware of the mentioned law. She too responded that while designing the traditional costume of Assam i.e. Mekhela chadar, Riha etc. she prefers Traditional designs and colour patterns as her design specialization engaging 150 people in her business. She uses the technique of CAD in her designs by giving modern touch to the traditional designs to make it more attractive and appealable to eye accordingly which nearly 103 takes about 22-25 days. She mainly uses Pat silk (mulberry) and Muga Silk (Golden silk) by using natural dyeing in her work. Currently she possesses 113 looms and 8 factories. Her business deals in local, national and international markets; branding her designs through fashion shows and social media in an official Facebook page, instagram page. Her sources of textile are from trades of Sualkuchi, kamrup district, Assam. From her responds, it came into light that her designs been copied by others and neither she took any actions against it nor she takes any precautions beforehand to protect her designs as she were unaware of any legal action in this field. But she is of view that duplication in the field had kept the textile sector of Assam alive as her competitor had replicate her designs which provides employment to weavers that motivates them work more hard and as a result upliftment of Assam’s textile sector raised with leaps and bounds. So, she doesn’t have any objection if there is any duplication of her work, in fact she is pleased with such duplication. Lastly at her opinion she shared that she never seeked for government support and will be pleased if government of Assam promotes about Assam silk and the textile sector of Assam in various other states and countries. She too shared her experience that when she entered in this field, as she was not from a design background she analyzed why people never prefer Assam Silk in compared to other silk. After completion of her research she found that use of same traditional designs, lacked people’s interest on it. So she changed them by modifying those designs by applying her own designs in it, started her business with a factory and 3 looms. The problems she faced in her business were related to weavers who were not interested to work dedicatedly. She analyzed these problems and reached to a conclusion that weavers are not paid according to their labour and for these purposes commercialization of Assam silk was lacking behind. So, in order to uplift the textile sector of Assam she increased the wages of weavers, provided incentives to them with free fooding and lodging. To motivate the weavers was her biggest struggle point for upliftment of Assam’s textile sector. 2. Fashion Designer Name of the respondent: Kalpana Tamuli Age : 43 years Sex : Female Occupation : Fashion designer Place of interview : Respondent’s house 104

Date of interview : 27th April, 2018 Kalpana Tamuli, renowned fashion designer of Assam, aged 43 years is inhabitant of Nizarapar, Chandmari, Guwahati, has been engaged in this business since 15 years and had specified that this business is not a part of her family traditions. Through the survey she responded that she is not aware of Intellectual property rights and Design Act, 2000. She never did register her designs as she was unaware of the mentioned law. She too responded that while designing the traditional costume of Assam she prefers traditional designs by providing a modern touch to age old designs. She mainly uses Pat silk (mulberry) and Muga Silk (Golden silk) by using natural and artificial dyeing in her work engaging 46 people in the business. Currently she possesses 40 looms and 3 factories. Her business deals in international, national and local markets; branding her designs through websites, photo shoots, fashion shows and social media. Her textiles are from local sources. From her responds, it came into light that her designs been copied by others and neither she took any actions against it nor she takes any precautions beforehand to protect her designs as she were unaware of any legal action in this field. Just a verbal threatening of not to repeat it again but at the same time her view point is same that of Sanjukta Dutta that duplication in the field had kept the textile sector of Assam alive. If there would be absence of duplication, then alone she won’t be able to rise the textile sector of Assam. Lastly at her opinion she shared that she seeked help for government support and displayed her designs in “North Eastern Development Finance Corporation Ltd. (NEDFI)”, a public limited company and will be pleased if government of Assam takes steps to protect the designs of Textile sector in Assam from replication by another state. She suggests Assam silk and its traditional designs are pride of the state and it should be misappropriate by outsiders of another state. She too shared her experience that she love and enjoy her work, and considers her work as her “third child” and at the same time receiving good complements from her customers motivates her more to work hard in this sector. 3. Fashion Designer Name of respondents: Pallavi choudhury Baishya Age : 39 years Sex : Female Occupation : Fashion designer Place of interview : Respondent’s house 105

Date of interview : 21st May, 2018 Pallavi choudhury Baishya, renowned fashion designer of Assam, aged 39 years is inhabitant of Janakpur, Kahilipara, Guwahati, has been engaged in this business since 7 years and had specified that this business is not a part of her family traditions. Through the survey she responded that she is not aware of Intellectual property rights and Design Act, 2000. She never did register her designs as she was unaware of the mentioned law. She too responded that while designing the traditional costume of Assam she prefers traditional designs mainly Kingkhap design, Kalka design, Miri Buta by providing a modern touch to age old designs through her own creativity that makes the appearance of the design more attractive and appealable to eye. She mainly uses Pat silk (mulberry) Muga Silk (Golden silk) by using both natural and artificial dyeing in her work by engaging 20 people in her work. Currently she possesses 18 looms and 1 factory. Her business deals in international, national and local markets; branding her designs through magazines and social media. Her textiles are from local sources. From her responds, it came into light that her designs been copied by others and neither she took any actions against it nor she takes any precautions beforehand to protect her designs as she were unaware of any legal action in this field. Lastly at her opinion she shared that she never seeked help for government support and will be pleased if government of Assam takes steps in providing adequate subsidy in uplifting the conditions of the weavers which in turn will help her as well other people engaged in the field in smooth functioning of the work that will popularize Assam silk even more in future. 4. Fashion Designer Name of the respondent: Meghna Rai Choudhury Age : 50 years Sex : Female Occupation : Fashion designer Place of interview : Respondent’s studio Date of interview : 27th April, 2018 Meghna Rai Choudhury, renowned fashion designer of Assam, aged 50 years is inhabitant of Uzanbazar, Guwahati, has been engaged in this business since 26 years. She had specified that this business is not a part of her family traditions. Through the survey she responded that she has heard about Intellectual property rights but not fully aware of this law and been completely unaware of Design Act, 2000. She never did 106 register her designs as she was unaware of the mentioned law. She too responded that while designing the traditional costume of Assam she prefers traditional designs inspired by other design; accumulate the age-old designs and ends up in creating her own designs having fusion of age-old design and modern designs. She mainly uses Pat silk (mulberry) and Muga Silk (Golden silk) by using natural and artificial dyeing in her work engaging 20 people in the business. Currently she possesses 5 looms and 3 factories. Her business deals in local and international markets; branding her designs through websites, shows and social media. Her textiles are from contemporary local sources. From her responds, it came into light that her designs been copied by others and neither she took any actions against it nor she takes any precautions beforehand to protect her designs as she were unaware of any legal action in this field. Lastly at her opinion she shared that she never seeked help for government support and will be pleased if government of Assam takes steps to promote the designs and designers in national arena, there should be a designer hub where designers of the state can showcase their designs which will not only help them to grow individually but as a whole it will promote designs of the designers to grow more. Regarding duplication, she personally feels that designs should not be protected because such protection might deteriorate the conditions of weavers as duplications motivates the interests of the weavers in textile sectors to create designs in masses as the main aim of every human being is to earn money. As weavers are generally of poverty line so government should provide them training in the field, better incentives to encourage the weavers under government schemes. So according to her if any duplication arises of her work, it motivates her to work more hard because she feels duplication of her works is the answer of her hard labour. 5. Government employee of Textile sector, Indian Institute of Handloom Technology, Guwahati. Name of the respondent: Pankaj Sarmah Age : 50 years Sex : Male Occupation : Government service Place of interview : Respondent’s institute Date of interview : 3rd May, 2018 Pankaj Sarmah, aged about 50 years is inhabitant of Jawaharnagar, Khanapara, Guwahati has been engaged in this service since 30 years and had specify that this 107 business is not a part of her family traditions. Through the survey he responded that he had heard about intellectual property rights, but not fully aware of this law and been completely unaware of Design Act, 2000. His department never did register their designs as they were unaware of the law. He too responded that while designing textile his institute use the modern process that of jacquard machine, multiple devices, twin cloth slay and other multi traded processes. His institute mainly deals with Muga, Pat, Eri and other type of textile/silk. His institute creates minimum design sample pieces either one or two sample pieces or that for teaching purpose and not for commercialization. They use natural dyeing and pay more attention towards the earning conditions of the weavers by giving modern touch to the traditional designs. Designing of the textile mainly depends upon the thickness count of the fiber which nearly takes about 1-2 days. From his conversation, it came into light that designs of the institute been never copied by others as they do not deal in commercial sector and basically use CAD through CAD key as a precautions to protect the designs beforehand. The institute never faced any problem in the field and had obtained complete support from its own government departmental administrator, provides schemes in marketing sector to those who exhibit their work in any Expos, Exhibitions by certifying or recommend them to be genuine, if so. Lastly he shared that as a government employee in the field of textile sector of the state, his institute tried their best to support peoples engaged in the sector by providing them various opportunities like conducting national contest with national reward where different state participates, which in turn help textile sector of Assam to showcase their work and promote Assam silk all over the country. 6. Entrepreneur Name of the respondent: Nagen Chandra Baishya Age : 47 years Sex : Male Occupation : Business (owner of loom factory) Place of interview : Respondent’s factory Date of interview : 7th June, 2018 Nagen Chandra Baishya, aged about 47 years, inhabitant of Bangshar, Sualkuchi, Kamrup district, has been engaged in this business since 25 years and had specified that it is part of his family traditions. Through the survey he responded that he is not aware of Intellectual property rights and Design Act, 2000. He never did register her 108 designs as he was unaware of the mentioned law. He too responded that while designing the traditional costume of Assam he prefers traditional designs of the state by presenting it in an uncommon design. He mainly uses Pat silk (mulberry) and Muga Silk (Golden silk) by using artificial dyeing in his work engaging 40 people in the business. Currently he possesses 30 looms and 4 factories. His business deals in national and local markets; branding his designs by displaying it own shops. His textiles are from local sources. From his responds, it came into light that his designs been copied by others and he never allows any customers or other person to click photographs of his design as a precautions to protect his designs beforehand. Lastly at his opinion he shared that he never got any help from government like that of subsidy and he will be pleased if government of the state removes power loom as user of power loom caused setback to his business by exporting fake silk as mulberry silk from Banaras. He requires government to make awareness of the real silk belonging from Assam. 7. Entrepreneur Name of the respondent: Rameshwar Baishya Age : 47 years Sex : Male Occupation : Business (owner of loom factory) Place of interview : Respondent’s factory Date of interview : 7th June, 2018 Rameswar Baishya, aged about 47 years, inhabitant of Rowmari, Sualkuchi of Kamrup district, has been engaged in this business since 10 years and had specified that it is not a part of his family traditions. Through the survey he responded that he is not aware of Intellectual property rights and Design Act, 2000. He never did register her designs as he was unaware of the law. He too responded that while designing the traditional costume of Assam he prefers traditional designs of the state through various colour patterns, textures. He mainly uses Pat silk (mulberry), Muga Silk (Golden silk) and Eri (endi) by using natural dyeing in his work engaging 30 people in the business. Currently he possesses 30 looms and 4 factories. His business deals in local markets; branding his designs by displaying it own shops. His textiles are from local sources. From his responds, it came into light that his designs been copied by others but never took any casual precautions to protect his designs beforehand as he considers duplication makes a business grow. Lastly at his opinion he shared that he 109 never got any help from government like that of subsidy and he will be pleased if government of the state provide incentives to the weavers to bring back their interests in weaving which will in turn help the state to grow as well as an individual.

6.6 Analysis of the study From the study, researcher would like to state that Design is a part and parcel of textile as it gives aesthetic value to the material. With pace of time, man has undergone various changes in the clothing material as well as in style. Through the study, researcher came across few people’s to know their views which were mentioned above related to the Assam’s textile sector. In Assam, designs that are applicable to the traditional attire are much of traditional designs. The characteristics features that make the Assamese textile unique are its delicacy and simplicity and soothing colour combination. This reflects the high aesthetic sense of the weavers as well as the quality of taste of the consumers. As a whole, designs in the Assamese textiles are characterized by their dynamic manifestation. It has been observed that designers, boutiques and other people engaged in textile sector mainly prefer traditional designs which are fused with modern designs resulting in a novel creativity. It might be due to growth of adaptation of western culture in our state and so people might be more attracted towards designs of those cultures. And traditional designs are limited in nature and repetition of those designs might lack people interest on it. So in order to continue the Assamese culture of wearing traditional attire whether be it in marriage ceremony or other religious purpose, designers and other people related to it might have started given modern creative touch to the traditional designs in order to keep the textile sector alive. Moreover, everyday people search for new features on garments that itself distinctive in nature. But researcher is of view that, fusion of modern designs with that of traditional designs due to the improvement of weaving techniques, the contemporary designs in Assamese textiles seems to be non-symbolic and vivid in nature which needed to be taken care of by the people engaged therein. These are becoming more or less innovative or a mixture of tradition and innovation. Perceptible changes have been taking place, practically in all spheres of activities of Assamese textiles. Many of the respondents are of view that their Designs been copied by others. As traditional designs of the state are known to all, it is been available in public domain, so there doesn’t arises any mere duplication of the work because every traditional attire designs will be one and the same, colour may 110 vary. From legal point of view, researcher observed that if there existed duplication in their work, then they could have taken legal action against it but they remain silent. From here it indicates two points: Firstly, people engaged in it, might be unaware of the existing law that protects their creativity. Lack of awareness about the Design law is hampering them to some extent. Secondly, It might also occur that rights when violated, they wanted to have legal actions but they might have remained in dark about the path they wanted to choose like that of whom to approach and vice-versa. So, for these purpose they might have remain silent on the matter on their violations of the rights. It is true that peoples engaged therein when came across the study, are completely unaware of the Design law, but to the observance of researcher, opines that before operating any work legal background of such work should be confirmed beforehand. As we know social media has brought drastic revolution into people’s life and as no one possesses any control over digital media so branding a design through social media is not safe as at these platform designs could be copied from any corner of the world with much ease and it will be very difficult to traced out the real culprit. But if it is observed from different perspective, social media too plays an easier role for design holders as it helps them to attract customers in masses which helps them to touch success in their work by leaps and bounds. As from the survey, researcher came across many opinions of the design holders, that Government must take active initiative to promote Assam’s textile and must provide skilful training to the weavers. At this point researcher would like to state that by implementing such schemes and policies, will help the weaving sector to rise at its peak. Government must provide subsidy to raise Assamese culture and spread awareness of the enacted schemes and policies available for which people engaged in the sector. In fact lots of works are required to be done towards the upliftment of textile sector of Assam, which are needed to be taken due care. Thus, Textile sector has undergone various changes and it is difficult to identify the specific factor responsible for specific changes, as very often number of factors varying operates to bring about changes in different spheres of textile activities.

6.7 Conclusions From the study, researcher arrived at a conclusion that there seems inter-change and inter-mingling of ideas among the people engaged with textile sector of Assam. But with these changes, it seems that design holders were unaware of their 111 rights available to them under Industrial Design Act, 2000. This may be due to lack of effective enforcement of the law. Government must take initiative in spreading awareness of such existing laws by conducting workshops, seminars from time to time so that these laws can be tuned with in violations of any legal rights. Effective enforcement must be carried out to protect the pride of Assam. Protection of such pride will raise the economic value of the state by attracting tourism towards it. So, handloom and textile sector of the state must be given due importance as a factor in progress of the state.

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CHAPTER-VII

CONCLUSION AND SUGGESTION

Industrial Design Act, 2000 is a form of Intellectual property rights that grant exclusive rights to the design holder to exploit his novel designs commercially having aesthetic value. A design on an article is influenced by its artistic merit as well of its efficiency, practical utility and appearance. A design may include shape, colour, composition of lines, finished surface article which ends in results of forming a different structure and such can be protected as an industrial Design as a form of intellectual property. It is something that catches the eye of a beholder. An appealing and attractive article increases the commercial value in market. And protection of such design ensures economic development and inspires more creativity in commercial sector and contributes in expansion of market export of products. An industrial design is protected under Design Act, 2000 as a rationale to reward the creator of the design for his labour and to provide him incentives for further contribution. Though designs in various articles were in use since ancient times, but no due importance economically existed at that era. Various legislations and amendments were enacted for to protect the design holder rights commercially and Design Act, 2000 played a vital role in it which ensures fair return on investment, honest trade practices promotes aesthetically attractive products and exclusive control over their creative designs for a period of 10 years which could be extended to 15 years by paying the prescribed fees. However, enactments of various international conventions and treaties played a vital role in design sector by simplifying the procedures of filing for registration of design in another country. These conventions protected the rights of design holder on equality basis without any discrimination on basis of nationality. Moreover, in today’s era protection of industrial Design is of utmost need as unique designs are most likely vulnerable to copying. So, through effective laws of Design Act, 2000, a unique design can be protected from unauthorized replication and reproduction of designs as the design holder obtain exclusive right to prohibit third party from using, selling, and making of his design without his consent as infringement of registered design is entitled to judicial remedy in appropriate court. 113

Though textile constitutes a basic need of human being, craving for aesthetic expression led to the development of various designs on textile. As Assam has one of the richest traditions of woven textiles made from different materials and use of various techniques, immense variations in the style of designing a garment not only possesses economic importance but represents sentiments too which manifested in the social customs of the people. As Assamese textile design involves symbolic meaning, it is been observed, tremendous changes in designs has undergone from traditional geometric to recently adopted innovative and vivid patterns. Due to its innovative category of designs, the traditional designs of the state are losing its symbolic meaning day-to-day and have become non-symbolic in nature. In Assam, in conformity with general requirement of designing, a handloom designer of the state has always shown a deep love for nature as they mediates and studies the forms of natural objects, landscape, hues of men, birds, animals and gathers them together to form a design. From view of legal perspectives designers artistic designs need to be protected as it is their original creative work by investing labour, skill and time. But from the empirical study conducted by the researcher it came into light that those designers’ designs on textile are not been protected as they were not aware of the Industrial Design Act, 2000. Thus, researcher’s first hypothesis i.e. “People engaged with the textile sector of Assam are unaware of Design Act, 2000 under Intellectual Property law” stands to be proof. The Grounds are as under: 1. On being asked to the respondents about the awareness of Intellectual Property Rights there answer is in negative. 2. On being asked about the awareness of Industrial Design Act, 2000 they answered in negative. 3. On being asked if their creative designs were registered, their answers were in negative. The researcher observed that respondent’s answers were negative on this aspect as they were unaware of Design Act, 2000 totally. Respondents were unaware of their rights available under the Act. However, researcher’s second hypothesis “duplication of artistic design work is a major setback in Assam’s textile sector” stands disprove due to following grounds: 114

1. While having conversation with the topmost designers during interview survey they confirmed that they were unaware of the Design law. 2. On being question raised relating to duplication of their work they were of opinion that due to duplication of their works, it has kept the Assam’s textile sector alive. Otherwise Assam’s textile sector would be in vanishing point without duplication of the work. 3. As Assam textile sector’s contains mostly traditional designs, so no one can have a claim on such designs. Creators provide their unique and modern touch in the designs of the garments to make the appearance more attractive and appealing to the eye. So, duplication or modification of such works in view of the designers motivates them more to work more hard and create more unique designs. 4. Although few entrepreneurs or boutique are against duplication, but overall everyone is of view that duplication has kept their business as well as Assam’s textile Sector growing in smooth phase. From the whole study, researcher reached at a conclusion that Industrial Design Act, 2000 is applicable to textile sector of Assam, but due to lack of awareness of the law among the people, such law has failed to gain its popularity among the people of Assam. So, researcher would like to suggest that Government of Assam should take appropriate initiative to spread awareness among the people regarding Intellectual Property Rights and Industrial Design Act, 2000 by conducting Seminars, workshops, awareness programmes etc. for better improvement of textile sector of Assam.

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2. WIPO document, “Contracting Parties to the Paris convention”, http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=ANY &end_year=ANY&search_what=C&treaty_id=2 (accessed on May 2, 2018 at 1:40 AM). 3. WIPO document, “International Designs Bulletin”, http://www.wipo.int/haguebulletin/?locale=en (accessed on May 20, 2018 at 1:31 PM). 4. WIPO document, “The Hague System for the International Registration of Industrial Designs”, http://www.wipo.int/edocs/pubdocs/en/designs/911/wipo_pub_911.pdf (accessed on May 17, 2018 at 12:26 AM). 5. WIPO document, “Members of the Hague Union”, http://www.wipo.int/hague/en/members/ (accessed on May 17, 2018 at 12:41 AM). 6. WIPO document, “Termination of the London Act of the Hague Agreement”, http://www.wipo.int/hague/en/news/2016/news_0010.html (accessed on May 22, 2018 at 10:22 PM) 7. WIPO document, “Member states”, http://www.wipo.int/members/en/ (accessed on May 23, 2018 at 9:14 PM). 8. 110th Congress 1st session Report, Geneva Act of the Hague Agreement concerning the international registration of Industrial designs (2007), https://www.congress.gov/congressional-report/110th-congress/executive-report/7 (accessed on May 24, 2018 at 1:22 AM). 9. WIPO document, “WIPO-Administered Treaties”, http://www.wipo.int/treaties/en/ActResults.jsp?act_id=7 (accessed on May 24, 2018 at 2:48 PM). 10. WIPO publication No. 501E/10, International classification for industrial designs (Locarno Classification), 10th ed., 2013. 11. WIPO document, “About the Locarno Classification”, http://www.wipo.int/classifications/locarno/en/preface.html (accessed on May 30, 2018).

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APPENDIX