Opposition, Correction and Registration

In one line

Anybody may oppose within three months extendable by one, the applicant must reply within two months or lose the application, and on registration the layout-design is dated back to the application and a sealed certificate issues.

Section 11: opposition

Section 11 is section 14 of the Geographical Indications Act carried across almost unaltered, so chapter 520 has the machinery and this chapter does not repeat it. The shape, in six steps: anybody may oppose within three months, extendable by not more than one month in the aggregate; the applicant has two months to counter-state or lose the application; the counter-statement is served back; evidence goes in and either side may ask to be heard; the Registrar decides, and may act on a ground nobody pleaded; and an opponent or applicant with no residence or business in India may be made to give security for costs.

Two departures from the sibling are worth marking.

The first is a drafting slip. Sub-section (5) tells the Registrar to "decide" and never says what he is deciding. Its sibling supplies the missing object, directing him to decide whether, and on what conditions or limitations, the registration is to be permitted. Read the object in; nobody has suggested otherwise.

The second is the counter-statement deadline in context. Two months, no extension, and abandonment written into the sub-section itself. That is severe in any statute, and it is more severe here, because section 77, chapter 880, gives an applicant in default of prosecution a notice, a period to cure and a hearing. Sub-section (2) gives none of the three.

What grounds may be raised

The Act does not list them, and that is deliberate. The obvious grounds are those in section 7: that the layout-design is not original within section 7(2); that it was commercially exploited in India or a convention country more than two years before the application; that it is not inherently distinctive; or that it is not inherently capable of being distinguished from another registered layout-design.

And two more that section 7 does not name. That the applicant is not the creator, or has no right of registration under section 7(3); and that the layout-design is not a layout-design at all within section 2(h).

Section 12: correction and amendment

The provision. The Registrar may, on such terms as he thinks just,

• (a) at any time, whether before or after acceptance of an application under section 8, permit the correction of any error in or in connection with the application, or permit an amendment of the application; or
• (b) permit correction of any error in, or an amendment of, a notice of opposition or a counter-statement under section 11.