Design Oppostion and Procedure  in India

Design opposition is different from trademark opposition, as Trademark can be opposed by any person after its publication in Journal but before registration, however there is no such concept of opposition in design, it is straight forward cancellation application. In design cancellation one must remember that design can only be cancelled after it is registered basically a person can file a petition for the cancellation of the design only when design is officially registered.

### Section 19 of the Designs Act, 2000 talks about cancellation of registration of designs.

After a design is been registered it is published in the Patent Office Journal in the last part. After the publication, the design is open to the public inspection. So, section 19 provides that any person can present the petition to the controller for the cancellation of the registration of a design in FORM 8 on the grounds that:

i. the design is already registered in India;
ii. design has already been published in India or in any other country prior to the date of registration;
iii. design is not new or original;
iv. design is not registerable under this Designs Act;
v. It is not a design according to the definition under Section 2(d).

PROCEDURE FOR CANCELLATION OF THE DESIGN REGISTRATION

a. The petition for cancellation of a design should be accompanied by a statement and evidence stating the facts setting upon which the petition is filed. The statement should also state the nature of applicant’s interest.

b. The fact of filing of a petition for cancellation of registration of a design is published in the Official Journal.

c. On receipt of a petition for cancellation, the Controller will send a copy of the petition along with statement and evidence to the applicant of the design owner (registered proprietor).

d. If the registered proprietor wishes to oppose the petition, he has to file reply at Patent Office, Kolkata, which is called counter statement and evidence, stating the grounds upon which he intends to challenge the cancellation petition, within one month from the date of notice given by the Controller, or actual delivery of a copy to the Petition. This period of one month is extendable by a maximum of three months, by filing a petition for extension with the required fee.

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e. After receiving the counter statement and evidence, from the registered proprietor, the Petitioner may file his reply statement and evidence, by way of affidavits, within one month from the date of delivery of the registered proprietor‘s counter statement and evidence. Reply evidence of the petitioner shall be strictly confined to matters in the evidence of the registered proprietor. This period of one month is extendable by a maximum of three months, by filing a petition for extension with the required fee. The petitioner should deliver a copy of his reply statement and evidence to the registered proprietor, simultaneously.

f. No further evidence can be produced by either party, except with the permission of Controller.

g. After completion of the filing of statement and evidence by the Petitioner and Registered Proprietor, the Controller will give at least ten days notice for hearing.

h. After receiving the notice of hearing, if either party desires to be heard, a notice of intention to attend the hearing can be filed by the party and the Controller may also refuse to hear any party who has not given notice and fee.

i. After hearing the parties, or without a hearing (if no party gave a notice of intention to attend the hearing), the Controller will decide the petition and issue a speaking order. The decision of Controller will be notified to the parties and will be published in the Official Journal.

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Trademark Registration in India Private Limited Company Registration in India Trademark Objection in India
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