ABC Communications, a telecommunications company, is in the design phase of a new device that incorporates a cellphone, PDA, MP3 player, GPS chip and Internet capabilities. There is a concern that the new device may have

Under the Designs Act, 2000, a design is capable of being registered only if it is new or original. Let's analyze ABC Communication's situation based on these criteria: Novelty: A design is considered new if it has not been disclosed to the public, anywhere in India or in any other country, by publication or by use or in any other way, prior to the filing date or priority date. It must also be significantly distinguishable from known designs or combinations of known designs (Section 4 of the Designs Act, 2000). Originality: Originality, in relation to a design, means: Originating from the author of the design. Includes cases which, though old in themselves, are new in their application (Section 2(g)). Application for Registration: Section 5 of the Act states that the Controller may, on the application of any person claiming to be the proprietor of a new or original design not previously published in any country and which is not contrary to public order or morality, register the design. The application must be in the prescribed manner and accompanied by the prescribed fee. A registered design is registered as of the date of the application for registration. Section 7 mandates that the Controller shall publish the particulars of the registered design, making it open for public inspection. Upon registration, the Controller grants a certificate of registration to the proprietor (Section 9). The purpose of design registration is to ensure that the artisan or creator of an aesthetically pleasing design is not deprived of their rightful reward by others applying it to their goods. Analysis for ABC Communication: In the given scenario, ABC Communication is in the design phase, and their competitor has already submitted an application for a nearly identical design. The key issue is whether ABC Communication's design can be considered 'new' or 'original' if a similar design has already been submitted for registration by a competitor, especially with the suspicion of information leakage by a former intern. If the competitor's design application has been submitted but not yet registered or published , ABC Communication might still have a chance. The Act emphasizes 'not previously published'. If the competitor's design is merely an application and not yet public, ABC's design could potentially still be considered new, provided it genuinely originated from ABC and was not derived from the leaked information. However, the fact that the competitor's application has been submitted and is 'nearly the same' raises concerns about the novelty and originality of ABC's design. If the intern indeed leaked information, and the competitor's design is based on ABC's original work, then ABC would have a claim of prior creation and misappropriation. Conclusion and Course of Action: ABC Communication can apply for registration of the design of its new device under the Designs Act, 2000. However, they will likely face challenges during the examination process. Reasons: Prior Creation: ABC Communication can argue that their design was conceived and developed prior to the competitor's application, and the similarity is due to the alleged information leak. Originality and Novelty Claim: They can assert that their design is genuinely new and original to them. Evidence of Leakage: The suspicion of information leakage by a former intern is a critical point. If ABC can provide evidence that the competitor's design is a result of misappropriated information from ABC, it strengthens their case. Competitor's Application Status: The competitor has only 'submitted' an application, not necessarily obtained registration or publication. If ABC can prove prior creation and that the competitor's design is not original to them, ABC's application might proceed. During the examination process, when ABC Communication is asked to clarify the status of its design with reference to the competitor's application, it can submit proof that its own design is original and new, and that the competitor has potentially stolen its design while it was still in the stage of development. This would involve demonstrating the timeline of their design process and the alleged leak.