UNIT 4
INTELLECTUAL PROPERTY RIGHTS: (IPRs)
- WRITE A NOTE ON IPR
ANS
Intellectual property rights (IPR) are the rights given to men and ladies over the creations of their minds: inventions, literary and artistic works, and symbols, names and pictures utilized in commerce. They typically give the creator an unique right over the utilization of his/her creation for a particular period of your time.
These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which presents for the right to benefit from the protection of ethical and material interests resulting from authorship of scientific, literary or artistic productions.
The importance of intellectual property was first recognized within the Paris Convention for the Protection of commercial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the world intellectual property Organization (WIPO).
Intellectual property rights are customarily divided into two principal areas:
(i) Copyright and rights associated with copyright:
The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the demise of the author.
(ii) Industrial property: Industrial property can be divided into two main areas:
Protection of distinctive signs, especially trademarks and geographical indications
• Trademarks distinguish the goods or services of 1 undertaking from those of other undertakings.
• Geographical Indications (GIs) identify an honest as originating during a place where a given characteristic of the great is actually due to its geographical origin.
• The protection of such distinctive signs targets to stimulate and ensure fair competition and to protect consumers, by using enabling them to form informed choices between various goods and services.
• The protection may last indefinitely, provided the check in question continues to be distinctive.
Industrial designs and trade secrets: Other sorts of industrial property are protected primarily to stimulate innovation, plan and therefore the creation of technology. During this category fall inventions (protected by patents), industrial designs and change secrets.
THE NEED OF IPR
• The progress and well-being of humanity rest on its capacity to make and invent new works within the areas of technology and culture.
• Encourages innovation: The legal protection of latest creations encourages the commitment of additional sources for further innovation.
• Economic growth: The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the standard and delight of life.
• Safeguard the rights of creators: IPR is required to safeguard creators and other producers of their intellectual commodity, items and services by granting them certain time-limited rights to regulate the utilization made from the manufactured goods.
• It promotes innovation and creativity and ensures simple doing business.
• It enables the transfer of technology within the sort of foreign direct investment, joint ventures and licensing.
2. EXPLAIN THE NATIONAL IPR POLICY
ANS
• The National intellectual property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision file to guide future development of IPRs within the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to one platform all IPRs, taking under consideration all inter-linkages and thus targets to make and exploit synergies between all sorts of intellectual property (IP), concerned statutes and agencies.
• It sets in situ an institutional mechanism for implementation, monitoring and review. It aims to include and adapt global great practices to the Indian scenario.
• Department of commercial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed because the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
• The ‘Cell for IPR Promotion & Management (CIPAM)’, setup under the aegis of DIPP, is to be the only factor of reference for implementation of the objectives of the National IPR Policy.
• India’s IPR regime is in compliance with the WTO's agreement on Trade-Related Aspects of intellectual property Rights (TRIPS).
OBJECTIVES
• IPR Awareness: Outreach and Promotion - to make public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
• Generation of IPRs - To stimulate the generation of IPRs.
• Legal and Legislative Framework - to possess strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
• Administration and Management - To modernize and strengthen service-oriented IPR administration.
• Commercialization of IPRs - Get value for IPRs via commercialization.
• Enforcement and Adjudication - To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
• Human Capital Development - To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
• Achievements under new IPR policy
• Improvement in GII Ranking: India’s rank within the Global Innovation Index (GII) issued by WIPO has expanded from 81st in 2015 to 52nd place in 2019.
• Strengthening of institutional mechanism regarding IP protection and promotion.
• Clearing Backlog/ Reducing Pendency in IP applications: Augmentation of technical manpower by the govt, has resulted in drastic reduction in pendency in IP applications.
• Automatic issuance of electronically generated patent and trademark certificates has also been introduced.
3. WRITE A NOTE ON PATENTS
ANS
IPR relating to PATENTS
A patent is an intellectual property (IP) right for a technical invention. It permits you to stop others from using your invention for commercial purposes for up to twenty years. You opt who is allowed to produce, sell or import your invention in those countries during which you own a legitimate patent. You’ll also trade your patent, e.g. Sell it or license the utilization of your invention.
You can patent products (e.g. Heated ski boots) and processes (e.g. a way for freeze-drying coffee). However, the invention must solve a drag during a new, non-obvious and technical way. In the instance of the ski boots, the matter of timidity while skiing is solved by fitting self-regulating heating elements to the boots.
Once a patent expires, an invention becomes common property and may then be freely employed by anyone.
PATENTS
Law – Patents Act, 1970, amended in 2006 Ministry – DIPP, Ministry of Commerce and industry
The object of jurisprudence is to encourage research project, new technology and industrial progress. The worth of the grant of the monopoly is that the disclosure of the invention at the Patent and Trademark Office Database, which, after the expiry of the fixed period (20 years) of the monopoly, passes into the general public domain. The elemental principle of patent law is that a patent is granted just for an invention which must have novelty and utility. It’s essential for the validity of a patent that it got to be the inventor’s own discovery as against mere verification of what was, already known before the date of the patent. A patentable invention, aside from being a new manufacture, must even be useful.
Ever greening of patent isn't allowed: so as to be patentable, an improvement on something known before or a mixture of various things already known, should be something quite a mere workshop improvement, and must independently satisfy the test of invention or an ingenious step. It must produce a new result, or a replacement article or a far better or cheaper article than before. The new subject matter must involve “invention” over what's old.
It approves Compulsory Licensing: This strikes balance between two objectives – Rewarding patentees for innovation and to form sure that patented products, particularly Pharmaceutical ones, are accessible to public in developing and underdeveloped countries at affordable prices.
In March 2012, India granted its first compulsory license ever. The license won’t to be granted to Indian drug manufacturer NatcoPharma Ltd for Sorafenibtosylate, a cancer drug patented by Bayer. Non-governmental agencies reportedly welcomed the decision.
TRIPS also allows for compulsory licensing under sure circumstances. The principal requirement for the difficulty of a compulsory license is that attempts to achieve a license under reasonable commercial terms need to have failed over an inexpensive period of time. Specific situations during which compulsory licenses can also be issued are began within the legislation of every legal system and vary between systems. Some examples are – Unaffordable expenses of particular drug for masses or inability of patentee to satisfy demand in markets. Further, TRIPs also gives that the wants for a compulsory license could also be waived in certain situations, in unique cases of national emergency or extreme urgency or in cases of public non-commercial use.
It approves both Product and Process patent: before 2006 amendment, only process was allowed to be patented. It capability that if same product is manufactured using some process different than that was patented, there shall be no infringement.
System of pre-grant and post-grant oppositions: Introduced in 2005, ensures that only deserving patents are granted. It is now possible to boost objection both before and after the patent has been granted.
Data exclusivity: Indian Patent Act doesn’t specifically provide for data exclusivity. Companies spend significant time, power and money on research and clinical trials. During all this they gather massive amount of useful data. While obtaining permission for launch of product in markets or while making use of for patents, these companies have to provide data to authorities. By provision of data exclusivity, groups want authorities to not share such data with any third party surely period.
Article 39(3) of the TRIPS states that that “Members when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which make use of new chemical entities, the submission of undisclosed test or data, the origination of which involves a substantial effort, shall protect such facts against unfair commercial use. Additionally, Members shall protect such data towards disclosure, except where necessary to guard the general public or until steps are taken to make sure that data are protected against unfair commercial use“
But it should be remembered that Article 39(3) doesn't mention “Data Exclusivity” but solely about “unfair commercial use” and it's this phrase that's interpreted by Multi-national companies as containing “Data Exclusivity” provision and thus demanding data exclusivity law.
Data exclusivity however, is opposed on following grounds –
• If generic drugs manufacturers are denied access to such data then they're going to need to do separate clinical trials which can increase costs.
• Further, there are moral issues with clinical trials because it involves experimentation on animals or humans.
• TRIPS agreement not in the least mentions ‘data exclusivity’. It’s just creative interpretation of MNCs.
• It can become an alternate to patentability and may be used for evergreening. Data exclusivity idea is different from patent. If a corporation manages to guard data, then it's going to still maintain its monopoly by incremental improvement in products and era of latest data.
There is no need of a “further protection” to pharmaceuticals within the sort of “Data Exclusivity” because the protection underneath the Patents Act, 1970 isn't only sufficient but additionally in conformity with the TRIPS Agreement. The protection within the sort of “Data Exclusivity” may be a “TRIPS plus” provision to which Indian doesn't owe any obligation.
The Health Ministry has said that India already has vital legal provisions to guard data and hence there's no need for any longer protection, while Satwant Reddy committee was of the view that there's no legal provision to protect test data. It’s alleged by the Health and right activist that government is below pressure from Multi-National Companies and western countries to enact law on data exclusivity.
India has adopted a balanced approach towards patent law. It’s committed to guard innovation while promoting the larger goal of welfare of its citizens. Courts and tribunals have upheld key provisions of India’s patent law through their authoritative pronouncements. The system of pre-grant and post-grant oppositions introduced in 2005 ensures that only deserving patents are granted.
It is expected that there would be a constant evolution of patent jurisprudence in India. Patent filings too have gone up by 10.56% from 2008-2009 to 2013-2014. Over 75% of patent filings are by foreign entities then there's a requirement for concerted action to be taken to extend filings by Indians.
4. WHAT IS AN INVENTION AND DISCOVERY?
ANS
Patent is recognition to the form of IP manifested in invention. Patents are granted for patentable inventions, which satisfy the wants of novelty and utility under the stringent examination and opposition procedures prescribed within the Indian Patents Act, 1970, but there's not even a prima-facie presumption on the validity of the patent granted.
Most countries have established national regimes to supply protection to the IPR within its jurisdiction. Except within the case of copyrights, the protection granted to the inventor/creator during a country (such as India) or a region (such as European Union) is confined thereto territory where protection is sought and isn't valid in other countries or regions
For example, a patent granted in India is valid just for India and not within the USA. The first reason for patenting an invention is to form money through exclusivity, i.e., the inventor or his assignee would have a monopoly if,
• The inventor has made a crucial invention after taking under consideration the modifications that the customer, and
• if the patent agent has described and claimed the invention correctly within the patent specification drafted, then the resultant patent would give the patent owner an exclusive market.
The patentee can exercise his exclusivity either by marketing the patented invention himself or by licensing it to a 3rd party.
The following wouldn't qualify as patents:
• An invention, which is frivolous or which claims anything obvious or contrary to the properly established law. An invention, the first or intended use of which might be contrary to law or morality or injurious to public health
• A discovery, scientific theory, or mathematical method
• A mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus until such known process leads to a replacement product or employs a minimum of one new reactant
• A substance obtained via a mere admixture resulting only within the aggregation of the properties of the components thereof or a process for producing such substance
• A mere arrangement or re-arrangement or duplication of a known device each functioning independently of 1 another in its own way
• A method of agriculture or horticulture
• Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other remedy of human beings or any process for an identical treatment of animals to render them freed from disease or to expand their value or that of their products
• An invention concerning nuclear energy
• An invention, which is in effect, is lore
5. EXPLAIN THE INFRINGEMENT OF PATENT RIGHTS
ANS
The various types of patent infringement occur when an individual or enterprise uses parts of a patented idea, method, or device without permission. Violation is additionally referred to as patent violation or maybe stolen ideas. It could involve either using or selling the patented invention or idea. Before you'll sue someone for violation, you want to find out who is at fault. It's not always as obvious as you might think. Understanding the various kinds of violation helps to work out who is accountable.
Direct Infringement
Making, using, selling, trying to sell, or importing something without acquiring a license from the patent holder is taken into account direct patent infringement. The offender must complete this act willfully and inside the us.
Indirect Infringement
Indirect infringement includes contributory infringement and inducement to infringe a patent. Under these terms, albeit a corporation is not the one that originally infringed on the patent, that organization can still be held in charge of patent infringement.
Contributory Infringement
This type of infringement involves the buy or importation of a part that aids in creating a patented item. To prove contributory infringement, one must exhibit that the component's main use would be to make a patented item. A generic item that has other makes use of usually doesn't qualify in proving contributory infringement.
Induced Infringement
This occurs when an individual or enterprise aids in patent infringement by providing components or helping to form a patented product. It happens through offering instructions, preparing instructions, or licensing plans or processes.
Willful Infringement
Willful infringement exists when an individual demonstrates whole disregard for somebody else's patent. Willful infringement is especially damaging to defendants in a lawsuit. The penalties are tons higher, and typically defendants must pay all attorney and court prices if they're found guilty.
Literal Infringement
To prove literal infringement, there must be a direct correspondence between the infringing device or process and therefore the patented device or process.
Doctrine of Equivalents
Even if the device or method doesn't exactly infringe a patent, a judge might find in favor of the patent holder. If the device does basically an equivalent thing and produces equivalent results, it needs to be an infringement.
There are five ways to justify a case of patent infringement:
• Doctrine of Equivalents
• Doctrine of Complete Coverage
• Doctrine of Compromise
• Doctrine of Estoppel
• Doctrine of Superfluity
Sometimes the top user is not any longer even aware that he or she is employing a patented item unlawfully. Other times, there are too many of us the utilization of the item to sue all of them. Rather than suing end users, it'd be best to sue these who are knowingly trying to infringe on a patent.
6. EXPLAIN THE TYPES OF PATENTS
ANS
A person files a patent application after he or she has created a thought or invention. This prevents others from taking advantage of it..This will be an extended process, taking over to 5 years. Following are the kinds of patents available:
1) Utility Patent
Most common sort of patent
Related to technology like mechanics, chemistry, and software
May include drawings, charts, and software
A very detailed description of the patent is constantly necessary
2) Design Patent
Only exists within the us. In other countries, designs aren't patented.
Function doesn't matter for plan patents
Typically, only a drawing of the design is important when filing a graph patent application
3) Plant Patent
Only relevant for patents that involve plants like flowers
A florist may patent a sort of hybrid flower
Patents exist all over the world, but the laws vary through country. Forinstance, in India, a patent gives the owner power over everything that idea or object.
7. WRITE A NOTE ON TRADEMARKS
ANS
A trademark may be a recognizable insignia, phrase, word, or symbol that denotes a specific product and legally differentiates it from all other products of its kind. A trademark exclusively identifies a product as belonging to a specific company and acknowledges the company's ownership of the brand.
Similar to a trademark, a service mark identifies and distinguishes the source of a service instead of a product, and therefore the term “trademark” is usually used to refer to both trademarks and provider marks. Trademarks are generally considered a sort of intellectual property.
UNDERSTANDING TRADEMARKS
A trademark can be a corporate logo, a slogan, a brand, or simply the name of a product. For instance, few would think of bottling a beverage and naming it Coca Cola or of using the well-known wave from its logo. It’s clear by now that the name "Coca Cola and its logo belong to The Coca-Cola Company (KO).
Trademarking, however, does contain some fuzzy boundaries because it prohibits any marks that have a “likelihood of confusion” with an existing one. A business cannot thus use a image or name if it's similar, sounds similar, or has a similar which means to one that’s already on the books—especially if the products or services are related.
Trademarks, Patents, and Copyrights
A trademark protects words and design elements that identify the source, owner, or developer of a product or service. Different than a trademark, a patent safeguards an original invention for a certain period of time, and there are often many exceptional sorts of patents. Unlike patents, copyrights protect “works of authorship,” like writing, art, architecture, and music.
Trademarks
Law – Trademark Act 1999
A trademark is usually a name, word, phrase, logo, symbol, design, image, or a combination of those elements. There’s additionally a variety of non-conventional trademarks comprising marks which don't fall into these standard categories, like these based on color, smell, or sound (like jingles). A trademark can't be offensive
India joins Madrid Protocol, 2013
The Madrid System for the International Registration of Marks offers trademark owners a price effective, user friendly and streamlined means of protecting and managing their trademark portfolio internationally.
For a business, its trademark is among its most valuable assets. The company’s trademark protects its distinctive sign or indicator. This might be a logo, logo, word, phrase, name, sound, design or a picture that symbolizes the brand value or goodwill associated with the enterprise or its product and services.
In India, trademarks are registered under the federal registration system with the support of 5 regional offices: Ahmedabad, Chennai, Delhi, Kolkata, and Mumbai. The Trade Mark Act of 1999 provides trademark rules for the registration, regulation, and protection of trademarks in India. DIPP lately revamped old trademark rules for registering trademarks in India.
8. WHAT IS TRADEMARK REGISTRATION PROCEDURE?
ANS
• Conduct a trademark search. To identify a definitely original trademark you may refer to the national trademark database online.
• File the application for trademark registration alongside with the prescribed fees.
• Once the mark is registered, the Trade Marks Registry sends the “Official Examination Report” asking for clarifications, if any, in accordance with the Trade Marks Act.
• After the appliance is accepted, it's published within the ‘Trade Marks Journal’, a government publication to call upon opposition from the general public, if any.
• If the application isn't opposed inside four months, then the registration is granted. Just in case of opposition, registration is granted only after the case is resolved.
• After all due consideration is met, an official letter intimating the acceptance of the application alongside with the trademark certificate is issued by the Trade Marks Registry.
• The whole process takes about 15 to 18 months. The trademark is valid for ten years starting from the date of issuance of the certificate. It are often renewed for an additional 10 years on the payment of the prescribed fees.
PROCESS FOR REGISTRATION OF A TRADEMARK IN INDIA
The processes for registration of the trademark are often carried out by the business owner or his/her representative. Though entrepreneurs prefer to use an agent or a lawyer for submitting an application for registration, there's no reason why it can't be through with the help of the entrepreneur or his/her employees. The whole registration process is often described within the following steps.
Trademark Search:
The following tips are useful while selecting a trademark:
i. It should be easy to talk, spell, and remember.
Ii. Invented words or coined words are advisable.
Iii. Avoid selection of a geographical name.
Iv. Avoid adopting laudatory word or words that describe the standard of goods (such as best, perfect, super, etc.).
v. It's advisable to conduct a survey to ascertain if same/similar mark is used in market.
Application for Registration:
The request for the registration should be within the prescribed form. Three completed copies of the shape are submitted alongside ten additional representations of the trademark. The representation of the trademark must incorporate a clear reproduction of the sign.
Even though a bare representation may additionally be sufficient, it's advisable to include any colours, forms, or three-dimensional features. In addition to details of the applicant, the software must also indicate the class of goods/services to which it might apply. The subsequent statistics should be mentioned within the form:
(a) The category of goods that the mark is sought must be specified. Classes are often textiles, food and confectionery, machine tools, etc. Separate applications are required for applying in different classes.
(b) Definition of things that's sought to be registered should tend.
(c) Details of the applicant including name, age, occupation, address, and nationality should be given.
(d) Whether the trademark is in use or is proposed to be used. If it's in use, then applicant must specify through whom it's getting used and for what period.
Receipt and Examination:
Receipt of the application is acknowledged by returning a replica of the utility alongside a representation of the mark. a politician number is given to the application. The date of receipt of utility can become very important in possible infringement proceedings later.
The workplace considers all documents and evidences and searches among existing trademarks. After such searching, the registrar can respond within the following ways:
1. Absolute acceptance
2. Acceptance challenge to modifications within the mark
3. Refusal
In case modifications are asked for, the applicant must suit them inside the stipulated period of three months.
Acceptance, Advertisement, and Opposition:
After the application has been accepted, it'll be published within the Trademark journal. The advertisement will encompass all details of the acceptance including representation of the mark, date of filing, particulars of applicant, and conditions or limitations, if any. Opposition has got to be done within three months of the date of the advertisement. Opposition must be within the prescribed form, in triplicate, and with the prescribed fee.
In addition to trademarks, the following categories of marks also can be registered below the TM Act:
i. Certification marks, which are given for compliance with defined standards. These aren't confined to any restricted membership. Such marks are granted to any entity that can certify that its products meet certain established standards. The internationally accepted ‘ISO 9000’ quality general and therefore the Indian ISI mark are samples of widely recognized certification marks.
Ii. Collective marks are often owned by any association. The members of such an affiliation are going to be allowed to use the collective mark to spot themselves as members of the association. Examples of such associations would be those representing accountants, engineers, or architects or industry associations like CII.
Usually, the whole process of registration takes more than a year after application. Although after receipt of the official number of an application, the applicant can request an expedited (Tatkat) examination of the registration application, alongside a declaration stating the reason for the request and a payment of the fee five times the application fee.
If the Registrar of Trade Marks is comfy with the reason, the examination of the application is expedited and therefore the examination report is issued within three months of the date of the request. If such a request is rejected after the hearing, the fee paid is refunded.
The registration is legitimate for ten years and is renewable for subsequent consecutive periods of ten years. Non-renewal leads to a lapse of registration. However, lapsed registrations are often easily restored.
Reciprocity for the aim of claiming priority is now allowed from the needs originating from the Paris Convention countries if filed within six months of the date of priority.
The courts in India have recognized the international recognition of foreign trademarks and trade names and therefore the significance of their protection. Marks like these of Amway, Whirlpool, and Ferrari have received protection through judicial decisions in India.
Cancellation:
An application for cancellation or rectification of registration of a trademark can only be filed by aggrieved parties, for instance, those claiming to be prior users of the mark. An application for cancellation must be filed with the Registrar of Trade Marks or the Appellate Board.
The following are a number of the usual grounds on the basis of which the registration of a trademark are often removed or cancelled:
1. The applicant didn't shall use the trademark within the normal course or trade and there has been no genuine use of the trademark for the nonce up to the date three months before the date of the utility for removal.
2. There has been no real use of the trademark for endless period of 5 years from the date on which the trademark was without a doubt entered on the register or longer, during which the trademark was registered.
3. The trademark was wrongly registered. Before this trademark came into being, there won’t to be a longtime trademark that was identical or deceptively similar.
Rights Conferred by Registration:
The registration of a trademark offers the registered proprietor the exclusive right to use the trademark in relation to the goods or services that it's registered and to gain relief with reference to infringement of the same. Registration acts as a public notice to others, informing them that they should not use the trademarks that are registered or pending for registration.
Trademarks also can be assigned, licensed, or transferred with or without transmitting the goodwill of the company. There’s a process for registration of all agreements that contain transmitting a trademark without the goodwill of the company.
9. EXPLAIN THE INFRINGEMENT OF TRADEMARKS.
ANS
Registration of a trademark may be a prerequisite for initiating an infringement action. The registered proprietor, his/her heirs and users can sue for infringement. An assignee of a registered trademark also can sue for infringement. The following essential prerequisites must exist for initiation of an infringement action:
1. The allegedly infringing mark must be either identical or deceptively like the registered trademark.
2. The goods/services in reference to which the allegedly infringing mark is used must be specifically covered by the registration of the registered trademark.
3. The use of the allegedly infringing mark need to be within the course of trade.
4. The use must be in such a manner on render the utilization likely to be taken as being used as a trademark.
A registered trademark (RTM) is also infringed via use of a mark when due to.
i. Its identity with RTM and similarity with goods/services covered by registration;
Ii. Its similarity with RTM and identification with goods/services covered by registration; or
Iii. Its identity with RTM and identity with goods/services blanketed by registration
It is likely to cause confusion on the a part of the public (in case 3 above, confusion is presumed), or which is likely to have an association with the RTM.
If an identical or similar mark is employed with appreciate to goods or services that aren't almost like these that an RTM is registered, such use amounts to infringement if an RTM has reputation in India and therefore the use of the mark without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the RTM.
Under the TM Act, the subsequent acts would additionally amount to an infringement of the RTM:
1. Use of the RTM as a brand name or a part of the alternate name dealing in same goods or services that the RTM is registered.
2. Use of the trademark in advertising if such advertising takes unfair advantage of and is contrary to the honest practice in industrial or commercial matters, or is detrimental to its distinctive character; or is against the recognition of the trademark.
Under the TM Act, even verbal use of the mark can constitute infringement.
Passing Off:
The user of an unregistered trademark is barred from instituting an infringement action. However, if the mark in question has become well known in India, the user of such a trademark isn't without recourse and should also seek a remedy by means of a passing-off action. The aim of this tort is to protect commercial goodwill and to make sure that the user’s business reputation isn't exploited.
Since business goodwill is an asset and, therefore, a species of property, the law protects it against encroachment as such. During a passing-off action, the plaintiff got to establish that the mark, name, or get-up-the use of which by the defendant is subject of the action is exclusive of his/her goods within the eyes of the public or class of public which his/her goods are identified within the market by using a particular mark or symbol. A passing-off suit are often converted into a combined action of infringement and passing off, if the registration of the trademark is obtained before the ultimate hearing of the passing-off suit.
Orders in Infringement and Passing-Off Suits:
In an action for infringement of a registered trademark, or in an action for passing off for either a registered or an unregistered mark, the court may order an injunction. The court docket can also pass an order to award damages on account of profits lost alongside the delivery of the infringing marks, for destruction or erasure. In addition to the civil remedies, the TM Act contains stringent criminal provisions bearing on to offences and penalties.
Indian courts are proactive in granting orders against the utilization of infringing domain names. In the www.yahoo.com vs. Yahooindia.com case, it's been held that ‘the name serves an equivalent function as a trademark, and isn't a mere address or like finding number on the internet, and, therefore, it's entitled to equal protection as a trademark.’
Often, new ventures neglect to approach the difficulty of emblems in an organized way. It’s important for entrepreneurial firms to determine a trademark within the youth of the organization and to guard it once it gets established. The following path is recommended for firms in creating and handling their intellectual property within the sort of trademarks.
Select Trademark:
The trademark chosen should be distinctive. There shouldn't be any scope for confusion with existing trademarks. Not solely is it bad for business, it's unlikely to be registered by the Registry of Trademarks. Also, the trademark should be attractive to the consumers.
Search and Register:
A few selected trademarks should be submitted at the Registry of Trademarks for a paid search. Even the unlikeliest of trademarks could are visualized and registered by someone within the past. This search will virtually eliminate the possibility of a similar trademark having been registered earlier.
Establish Trademark:
The trademark are often established in the market by brand building exposure. A trademark is established by building recognition. Adequate investments need to be made in an appropriate marketing and marketing strategy.
Protecting Trademark:
The trademark is protected by regularly scanning the market for imitations and attempts of passing off. The market has got to be monitored by the sales team. The Journal of Trademarks has got to be scanned to make sure that similar or equal trademarks don't get registered.
10. WRITE A NOTE ON COPYRIGHT
ANS
Copyright refers to the right of the owner of property. In simpler terms, copyright is that the right to copy. This means that the first creators of products and anyone they provide authorization to are the sole ones with the exclusive right to reproduce the work.
Copyright law gives creators of original material the unique right to further use and duplicate that material for a given amount of time, at which point the copyrighted item becomes public domain.
When someone creates a product that's seen as original which required significant mental activity to make, this product will become intellectual property that has got to be protected from unauthorized duplication. Samples of unique creations contains computer software, art, poetry, graphic designs, musical lyrics and compositions, novels, film, original architectural designs, website content, etc. One safeguard which will be wont to protect an ingenious creation is copyright.
Under copyright law, a piece is taken into account authentic if the author created it from independent thinking barren of duplication. This sort of labor is acknowledged as Original Work of Authorship (OWA). Anyone with an ingenious work of authorship automatically has the copyright thereto work, preventing anyone else from the usage of or replicating it. The copyright are often registered voluntarily by the first owner if he or she would really like to urge a whip hand within the system if the necessity arises.
Not all kinds of work are often copyrighted. A copyright doesn't protect ideas, discoveries, concepts, and theories. Brand names, logos, slogans, domain names, and titles also can't be protected under copyright law. For an original work to fall into creation, it's to be in tangible form. This suggests that any speech, discoveries, musical scores, or ideas need to be written down in physical form so as to be protected by copyright.
Copyrights
Law – Copyrights Act 1957, amended in 2012
Copyright may be a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and therefore the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.
Copyrights of works of the countries noted within the International Copyright Order are protected in India, as if such works are Indian works. The term of copyright in a work shall not exceed that which is enjoyed by means of it in its country of origin.
Acquisition of copyright is automatic and it doesn't require any formality. Copyright comes into existence as soon as a piece is made and no formality is required to be carried out for acquiring copyright. However, certificate of registration of copyright and therefore the entries made therein serve as clear evidence during a court of law with regard to dispute relating to ownership of copyright. Application for copyright is often filed in Copyright office.
Computer Software or programme also can be registered as a ‘literary work’. As per Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied alongside the application for registration of copyright for software products.
The 2012 amendments make Indian Copyright Law compliant with the internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
1. Literary
2. Dramatic,
3. Musical and
4. Artistic works Lifetime of the author + sixty years from the start of the calendar yr next following the year during which the author dies.
1. Anonymous and pseudonymous works
2. Posthumous work
3. Cinematograph films
4. Sound records
5. Government work
6. Public undertakings
7. International Agencies
8. Photographs Until sixty years from the start of the calendar years subsequent following the year during which the work is first publish
India has a very large copyright-based creative industry. Two The Copyright Act is comprehensive and with the recent amendments, the rights of creators are strengthened. India was the first country to ratify the Marrakesh Treaty 2013 for Access to copyright works for visually impaired persons. Enforcement in copyright has been sizable and can be further reinforced. Judgments of Indian courts have adequately balanced the rights of copyright owners with the rights of public. Moral rights are fully recognized.
The venture within the future is that the enforcement of copyright in digital platforms that the statute has adequate provisions. Indian copyright owners also are victims of copyright violations and piracy. Apart from Copyrights Act, Information Technology Act, 2000 too has certain relevant provisions for copyright in electronics and digital field.
The venture within the future is the enforcement of copyright in digital platforms that the statute has adequate provisions. Indian copyright owners also are victims of copyright violations and piracy. Aside from Copyrights Act, Information Technology Act, 2000 too has certain relevant provisions for copyright in electronics and digital field.
There are disagreements over the question whether Software are eligible for copyrights or for patents. Copyright Office recently held that software, if aren't in conjuncture with novel hardware should be protected by copyright. This is often relief for software program industry as Copyrights are cheap, automatically recognized and protects for 60 years while patents are just for 20 years.
UNIT 4
INTELLECTUAL PROPERTY RIGHTS: (IPRs)
- WRITE A NOTE ON IPR
ANS
Intellectual property rights (IPR) are the rights given to men and ladies over the creations of their minds: inventions, literary and artistic works, and symbols, names and pictures utilized in commerce. They typically give the creator an unique right over the utilization of his/her creation for a particular period of your time.
These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which presents for the right to benefit from the protection of ethical and material interests resulting from authorship of scientific, literary or artistic productions.
The importance of intellectual property was first recognized within the Paris Convention for the Protection of commercial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the world intellectual property Organization (WIPO).
Intellectual property rights are customarily divided into two principal areas:
(i) Copyright and rights associated with copyright:
The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the demise of the author.
(ii) Industrial property: Industrial property can be divided into two main areas:
Protection of distinctive signs, especially trademarks and geographical indications
• Trademarks distinguish the goods or services of 1 undertaking from those of other undertakings.
• Geographical Indications (GIs) identify an honest as originating during a place where a given characteristic of the great is actually due to its geographical origin.
• The protection of such distinctive signs targets to stimulate and ensure fair competition and to protect consumers, by using enabling them to form informed choices between various goods and services.
• The protection may last indefinitely, provided the check in question continues to be distinctive.
Industrial designs and trade secrets: Other sorts of industrial property are protected primarily to stimulate innovation, plan and therefore the creation of technology. During this category fall inventions (protected by patents), industrial designs and change secrets.
THE NEED OF IPR
• The progress and well-being of humanity rest on its capacity to make and invent new works within the areas of technology and culture.
• Encourages innovation: The legal protection of latest creations encourages the commitment of additional sources for further innovation.
• Economic growth: The promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the standard and delight of life.
• Safeguard the rights of creators: IPR is required to safeguard creators and other producers of their intellectual commodity, items and services by granting them certain time-limited rights to regulate the utilization made from the manufactured goods.
• It promotes innovation and creativity and ensures simple doing business.
• It enables the transfer of technology within the sort of foreign direct investment, joint ventures and licensing.
2. EXPLAIN THE NATIONAL IPR POLICY
ANS
• The National intellectual property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision file to guide future development of IPRs within the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to one platform all IPRs, taking under consideration all inter-linkages and thus targets to make and exploit synergies between all sorts of intellectual property (IP), concerned statutes and agencies.
• It sets in situ an institutional mechanism for implementation, monitoring and review. It aims to include and adapt global great practices to the Indian scenario.
• Department of commercial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed because the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.
• The ‘Cell for IPR Promotion & Management (CIPAM)’, setup under the aegis of DIPP, is to be the only factor of reference for implementation of the objectives of the National IPR Policy.
• India’s IPR regime is in compliance with the WTO's agreement on Trade-Related Aspects of intellectual property Rights (TRIPS).
OBJECTIVES
• IPR Awareness: Outreach and Promotion - to make public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
• Generation of IPRs - To stimulate the generation of IPRs.
• Legal and Legislative Framework - to possess strong and effective IPR laws, which balance the interests of rights owners with larger public interest.
• Administration and Management - To modernize and strengthen service-oriented IPR administration.
• Commercialization of IPRs - Get value for IPRs via commercialization.
• Enforcement and Adjudication - To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
• Human Capital Development - To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IPRs.
• Achievements under new IPR policy
• Improvement in GII Ranking: India’s rank within the Global Innovation Index (GII) issued by WIPO has expanded from 81st in 2015 to 52nd place in 2019.
• Strengthening of institutional mechanism regarding IP protection and promotion.
• Clearing Backlog/ Reducing Pendency in IP applications: Augmentation of technical manpower by the govt, has resulted in drastic reduction in pendency in IP applications.
• Automatic issuance of electronically generated patent and trademark certificates has also been introduced.
3. WRITE A NOTE ON PATENTS
ANS
IPR relating to PATENTS
A patent is an intellectual property (IP) right for a technical invention. It permits you to stop others from using your invention for commercial purposes for up to twenty years. You opt who is allowed to produce, sell or import your invention in those countries during which you own a legitimate patent. You’ll also trade your patent, e.g. Sell it or license the utilization of your invention.
You can patent products (e.g. Heated ski boots) and processes (e.g. a way for freeze-drying coffee). However, the invention must solve a drag during a new, non-obvious and technical way. In the instance of the ski boots, the matter of timidity while skiing is solved by fitting self-regulating heating elements to the boots.
Once a patent expires, an invention becomes common property and may then be freely employed by anyone.
PATENTS
Law – Patents Act, 1970, amended in 2006 Ministry – DIPP, Ministry of Commerce and industry
The object of jurisprudence is to encourage research project, new technology and industrial progress. The worth of the grant of the monopoly is that the disclosure of the invention at the Patent and Trademark Office Database, which, after the expiry of the fixed period (20 years) of the monopoly, passes into the general public domain. The elemental principle of patent law is that a patent is granted just for an invention which must have novelty and utility. It’s essential for the validity of a patent that it got to be the inventor’s own discovery as against mere verification of what was, already known before the date of the patent. A patentable invention, aside from being a new manufacture, must even be useful.
Ever greening of patent isn't allowed: so as to be patentable, an improvement on something known before or a mixture of various things already known, should be something quite a mere workshop improvement, and must independently satisfy the test of invention or an ingenious step. It must produce a new result, or a replacement article or a far better or cheaper article than before. The new subject matter must involve “invention” over what's old.
It approves Compulsory Licensing: This strikes balance between two objectives – Rewarding patentees for innovation and to form sure that patented products, particularly Pharmaceutical ones, are accessible to public in developing and underdeveloped countries at affordable prices.
In March 2012, India granted its first compulsory license ever. The license won’t to be granted to Indian drug manufacturer NatcoPharma Ltd for Sorafenibtosylate, a cancer drug patented by Bayer. Non-governmental agencies reportedly welcomed the decision.
TRIPS also allows for compulsory licensing under sure circumstances. The principal requirement for the difficulty of a compulsory license is that attempts to achieve a license under reasonable commercial terms need to have failed over an inexpensive period of time. Specific situations during which compulsory licenses can also be issued are began within the legislation of every legal system and vary between systems. Some examples are – Unaffordable expenses of particular drug for masses or inability of patentee to satisfy demand in markets. Further, TRIPs also gives that the wants for a compulsory license could also be waived in certain situations, in unique cases of national emergency or extreme urgency or in cases of public non-commercial use.
It approves both Product and Process patent: before 2006 amendment, only process was allowed to be patented. It capability that if same product is manufactured using some process different than that was patented, there shall be no infringement.
System of pre-grant and post-grant oppositions: Introduced in 2005, ensures that only deserving patents are granted. It is now possible to boost objection both before and after the patent has been granted.
Data exclusivity: Indian Patent Act doesn’t specifically provide for data exclusivity. Companies spend significant time, power and money on research and clinical trials. During all this they gather massive amount of useful data. While obtaining permission for launch of product in markets or while making use of for patents, these companies have to provide data to authorities. By provision of data exclusivity, groups want authorities to not share such data with any third party surely period.
Article 39(3) of the TRIPS states that that “Members when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which make use of new chemical entities, the submission of undisclosed test or data, the origination of which involves a substantial effort, shall protect such facts against unfair commercial use. Additionally, Members shall protect such data towards disclosure, except where necessary to guard the general public or until steps are taken to make sure that data are protected against unfair commercial use“
But it should be remembered that Article 39(3) doesn't mention “Data Exclusivity” but solely about “unfair commercial use” and it's this phrase that's interpreted by Multi-national companies as containing “Data Exclusivity” provision and thus demanding data exclusivity law.
Data exclusivity however, is opposed on following grounds –
• If generic drugs manufacturers are denied access to such data then they're going to need to do separate clinical trials which can increase costs.
• Further, there are moral issues with clinical trials because it involves experimentation on animals or humans.
• TRIPS agreement not in the least mentions ‘data exclusivity’. It’s just creative interpretation of MNCs.
• It can become an alternate to patentability and may be used for evergreening. Data exclusivity idea is different from patent. If a corporation manages to guard data, then it's going to still maintain its monopoly by incremental improvement in products and era of latest data.
There is no need of a “further protection” to pharmaceuticals within the sort of “Data Exclusivity” because the protection underneath the Patents Act, 1970 isn't only sufficient but additionally in conformity with the TRIPS Agreement. The protection within the sort of “Data Exclusivity” may be a “TRIPS plus” provision to which Indian doesn't owe any obligation.
The Health Ministry has said that India already has vital legal provisions to guard data and hence there's no need for any longer protection, while Satwant Reddy committee was of the view that there's no legal provision to protect test data. It’s alleged by the Health and right activist that government is below pressure from Multi-National Companies and western countries to enact law on data exclusivity.
India has adopted a balanced approach towards patent law. It’s committed to guard innovation while promoting the larger goal of welfare of its citizens. Courts and tribunals have upheld key provisions of India’s patent law through their authoritative pronouncements. The system of pre-grant and post-grant oppositions introduced in 2005 ensures that only deserving patents are granted.
It is expected that there would be a constant evolution of patent jurisprudence in India. Patent filings too have gone up by 10.56% from 2008-2009 to 2013-2014. Over 75% of patent filings are by foreign entities then there's a requirement for concerted action to be taken to extend filings by Indians.
4. WHAT IS AN INVENTION AND DISCOVERY?
ANS
Patent is recognition to the form of IP manifested in invention. Patents are granted for patentable inventions, which satisfy the wants of novelty and utility under the stringent examination and opposition procedures prescribed within the Indian Patents Act, 1970, but there's not even a prima-facie presumption on the validity of the patent granted.
Most countries have established national regimes to supply protection to the IPR within its jurisdiction. Except within the case of copyrights, the protection granted to the inventor/creator during a country (such as India) or a region (such as European Union) is confined thereto territory where protection is sought and isn't valid in other countries or regions
For example, a patent granted in India is valid just for India and not within the USA. The first reason for patenting an invention is to form money through exclusivity, i.e., the inventor or his assignee would have a monopoly if,
• The inventor has made a crucial invention after taking under consideration the modifications that the customer, and
• if the patent agent has described and claimed the invention correctly within the patent specification drafted, then the resultant patent would give the patent owner an exclusive market.
The patentee can exercise his exclusivity either by marketing the patented invention himself or by licensing it to a 3rd party.
The following wouldn't qualify as patents:
• An invention, which is frivolous or which claims anything obvious or contrary to the properly established law. An invention, the first or intended use of which might be contrary to law or morality or injurious to public health
• A discovery, scientific theory, or mathematical method
• A mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus until such known process leads to a replacement product or employs a minimum of one new reactant
• A substance obtained via a mere admixture resulting only within the aggregation of the properties of the components thereof or a process for producing such substance
• A mere arrangement or re-arrangement or duplication of a known device each functioning independently of 1 another in its own way
• A method of agriculture or horticulture
• Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other remedy of human beings or any process for an identical treatment of animals to render them freed from disease or to expand their value or that of their products
• An invention concerning nuclear energy
• An invention, which is in effect, is lore
5. EXPLAIN THE INFRINGEMENT OF PATENT RIGHTS
ANS
The various types of patent infringement occur when an individual or enterprise uses parts of a patented idea, method, or device without permission. Violation is additionally referred to as patent violation or maybe stolen ideas. It could involve either using or selling the patented invention or idea. Before you'll sue someone for violation, you want to find out who is at fault. It's not always as obvious as you might think. Understanding the various kinds of violation helps to work out who is accountable.
Direct Infringement
Making, using, selling, trying to sell, or importing something without acquiring a license from the patent holder is taken into account direct patent infringement. The offender must complete this act willfully and inside the us.
Indirect Infringement
Indirect infringement includes contributory infringement and inducement to infringe a patent. Under these terms, albeit a corporation is not the one that originally infringed on the patent, that organization can still be held in charge of patent infringement.
Contributory Infringement
This type of infringement involves the buy or importation of a part that aids in creating a patented item. To prove contributory infringement, one must exhibit that the component's main use would be to make a patented item. A generic item that has other makes use of usually doesn't qualify in proving contributory infringement.
Induced Infringement
This occurs when an individual or enterprise aids in patent infringement by providing components or helping to form a patented product. It happens through offering instructions, preparing instructions, or licensing plans or processes.
Willful Infringement
Willful infringement exists when an individual demonstrates whole disregard for somebody else's patent. Willful infringement is especially damaging to defendants in a lawsuit. The penalties are tons higher, and typically defendants must pay all attorney and court prices if they're found guilty.
Literal Infringement
To prove literal infringement, there must be a direct correspondence between the infringing device or process and therefore the patented device or process.
Doctrine of Equivalents
Even if the device or method doesn't exactly infringe a patent, a judge might find in favor of the patent holder. If the device does basically an equivalent thing and produces equivalent results, it needs to be an infringement.
There are five ways to justify a case of patent infringement:
• Doctrine of Equivalents
• Doctrine of Complete Coverage
• Doctrine of Compromise
• Doctrine of Estoppel
• Doctrine of Superfluity
Sometimes the top user is not any longer even aware that he or she is employing a patented item unlawfully. Other times, there are too many of us the utilization of the item to sue all of them. Rather than suing end users, it'd be best to sue these who are knowingly trying to infringe on a patent.
6. EXPLAIN THE TYPES OF PATENTS
ANS
A person files a patent application after he or she has created a thought or invention. This prevents others from taking advantage of it..This will be an extended process, taking over to 5 years. Following are the kinds of patents available:
1) Utility Patent
Most common sort of patent
Related to technology like mechanics, chemistry, and software
May include drawings, charts, and software
A very detailed description of the patent is constantly necessary
2) Design Patent
Only exists within the us. In other countries, designs aren't patented.
Function doesn't matter for plan patents
Typically, only a drawing of the design is important when filing a graph patent application
3) Plant Patent
Only relevant for patents that involve plants like flowers
A florist may patent a sort of hybrid flower
Patents exist all over the world, but the laws vary through country. Forinstance, in India, a patent gives the owner power over everything that idea or object.
7. WRITE A NOTE ON TRADEMARKS
ANS
A trademark may be a recognizable insignia, phrase, word, or symbol that denotes a specific product and legally differentiates it from all other products of its kind. A trademark exclusively identifies a product as belonging to a specific company and acknowledges the company's ownership of the brand.
Similar to a trademark, a service mark identifies and distinguishes the source of a service instead of a product, and therefore the term “trademark” is usually used to refer to both trademarks and provider marks. Trademarks are generally considered a sort of intellectual property.
UNDERSTANDING TRADEMARKS
A trademark can be a corporate logo, a slogan, a brand, or simply the name of a product. For instance, few would think of bottling a beverage and naming it Coca Cola or of using the well-known wave from its logo. It’s clear by now that the name "Coca Cola and its logo belong to The Coca-Cola Company (KO).
Trademarking, however, does contain some fuzzy boundaries because it prohibits any marks that have a “likelihood of confusion” with an existing one. A business cannot thus use a image or name if it's similar, sounds similar, or has a similar which means to one that’s already on the books—especially if the products or services are related.
Trademarks, Patents, and Copyrights
A trademark protects words and design elements that identify the source, owner, or developer of a product or service. Different than a trademark, a patent safeguards an original invention for a certain period of time, and there are often many exceptional sorts of patents. Unlike patents, copyrights protect “works of authorship,” like writing, art, architecture, and music.
Trademarks
Law – Trademark Act 1999
A trademark is usually a name, word, phrase, logo, symbol, design, image, or a combination of those elements. There’s additionally a variety of non-conventional trademarks comprising marks which don't fall into these standard categories, like these based on color, smell, or sound (like jingles). A trademark can't be offensive
India joins Madrid Protocol, 2013
The Madrid System for the International Registration of Marks offers trademark owners a price effective, user friendly and streamlined means of protecting and managing their trademark portfolio internationally.
For a business, its trademark is among its most valuable assets. The company’s trademark protects its distinctive sign or indicator. This might be a logo, logo, word, phrase, name, sound, design or a picture that symbolizes the brand value or goodwill associated with the enterprise or its product and services.
In India, trademarks are registered under the federal registration system with the support of 5 regional offices: Ahmedabad, Chennai, Delhi, Kolkata, and Mumbai. The Trade Mark Act of 1999 provides trademark rules for the registration, regulation, and protection of trademarks in India. DIPP lately revamped old trademark rules for registering trademarks in India.
8. WHAT IS TRADEMARK REGISTRATION PROCEDURE?
ANS
• Conduct a trademark search. To identify a definitely original trademark you may refer to the national trademark database online.
• File the application for trademark registration alongside with the prescribed fees.
• Once the mark is registered, the Trade Marks Registry sends the “Official Examination Report” asking for clarifications, if any, in accordance with the Trade Marks Act.
• After the appliance is accepted, it's published within the ‘Trade Marks Journal’, a government publication to call upon opposition from the general public, if any.
• If the application isn't opposed inside four months, then the registration is granted. Just in case of opposition, registration is granted only after the case is resolved.
• After all due consideration is met, an official letter intimating the acceptance of the application alongside with the trademark certificate is issued by the Trade Marks Registry.
• The whole process takes about 15 to 18 months. The trademark is valid for ten years starting from the date of issuance of the certificate. It are often renewed for an additional 10 years on the payment of the prescribed fees.
PROCESS FOR REGISTRATION OF A TRADEMARK IN INDIA
The processes for registration of the trademark are often carried out by the business owner or his/her representative. Though entrepreneurs prefer to use an agent or a lawyer for submitting an application for registration, there's no reason why it can't be through with the help of the entrepreneur or his/her employees. The whole registration process is often described within the following steps.
Trademark Search:
The following tips are useful while selecting a trademark:
i. It should be easy to talk, spell, and remember.
Ii. Invented words or coined words are advisable.
Iii. Avoid selection of a geographical name.
Iv. Avoid adopting laudatory word or words that describe the standard of goods (such as best, perfect, super, etc.).
v. It's advisable to conduct a survey to ascertain if same/similar mark is used in market.
Application for Registration:
The request for the registration should be within the prescribed form. Three completed copies of the shape are submitted alongside ten additional representations of the trademark. The representation of the trademark must incorporate a clear reproduction of the sign.
Even though a bare representation may additionally be sufficient, it's advisable to include any colours, forms, or three-dimensional features. In addition to details of the applicant, the software must also indicate the class of goods/services to which it might apply. The subsequent statistics should be mentioned within the form:
(a) The category of goods that the mark is sought must be specified. Classes are often textiles, food and confectionery, machine tools, etc. Separate applications are required for applying in different classes.
(b) Definition of things that's sought to be registered should tend.
(c) Details of the applicant including name, age, occupation, address, and nationality should be given.
(d) Whether the trademark is in use or is proposed to be used. If it's in use, then applicant must specify through whom it's getting used and for what period.
Receipt and Examination:
Receipt of the application is acknowledged by returning a replica of the utility alongside a representation of the mark. a politician number is given to the application. The date of receipt of utility can become very important in possible infringement proceedings later.
The workplace considers all documents and evidences and searches among existing trademarks. After such searching, the registrar can respond within the following ways:
1. Absolute acceptance
2. Acceptance challenge to modifications within the mark
3. Refusal
In case modifications are asked for, the applicant must suit them inside the stipulated period of three months.
Acceptance, Advertisement, and Opposition:
After the application has been accepted, it'll be published within the Trademark journal. The advertisement will encompass all details of the acceptance including representation of the mark, date of filing, particulars of applicant, and conditions or limitations, if any. Opposition has got to be done within three months of the date of the advertisement. Opposition must be within the prescribed form, in triplicate, and with the prescribed fee.
In addition to trademarks, the following categories of marks also can be registered below the TM Act:
i. Certification marks, which are given for compliance with defined standards. These aren't confined to any restricted membership. Such marks are granted to any entity that can certify that its products meet certain established standards. The internationally accepted ‘ISO 9000’ quality general and therefore the Indian ISI mark are samples of widely recognized certification marks.
Ii. Collective marks are often owned by any association. The members of such an affiliation are going to be allowed to use the collective mark to spot themselves as members of the association. Examples of such associations would be those representing accountants, engineers, or architects or industry associations like CII.
Usually, the whole process of registration takes more than a year after application. Although after receipt of the official number of an application, the applicant can request an expedited (Tatkat) examination of the registration application, alongside a declaration stating the reason for the request and a payment of the fee five times the application fee.
If the Registrar of Trade Marks is comfy with the reason, the examination of the application is expedited and therefore the examination report is issued within three months of the date of the request. If such a request is rejected after the hearing, the fee paid is refunded.
The registration is legitimate for ten years and is renewable for subsequent consecutive periods of ten years. Non-renewal leads to a lapse of registration. However, lapsed registrations are often easily restored.
Reciprocity for the aim of claiming priority is now allowed from the needs originating from the Paris Convention countries if filed within six months of the date of priority.
The courts in India have recognized the international recognition of foreign trademarks and trade names and therefore the significance of their protection. Marks like these of Amway, Whirlpool, and Ferrari have received protection through judicial decisions in India.
Cancellation:
An application for cancellation or rectification of registration of a trademark can only be filed by aggrieved parties, for instance, those claiming to be prior users of the mark. An application for cancellation must be filed with the Registrar of Trade Marks or the Appellate Board.
The following are a number of the usual grounds on the basis of which the registration of a trademark are often removed or cancelled:
1. The applicant didn't shall use the trademark within the normal course or trade and there has been no genuine use of the trademark for the nonce up to the date three months before the date of the utility for removal.
2. There has been no real use of the trademark for endless period of 5 years from the date on which the trademark was without a doubt entered on the register or longer, during which the trademark was registered.
3. The trademark was wrongly registered. Before this trademark came into being, there won’t to be a longtime trademark that was identical or deceptively similar.
Rights Conferred by Registration:
The registration of a trademark offers the registered proprietor the exclusive right to use the trademark in relation to the goods or services that it's registered and to gain relief with reference to infringement of the same. Registration acts as a public notice to others, informing them that they should not use the trademarks that are registered or pending for registration.
Trademarks also can be assigned, licensed, or transferred with or without transmitting the goodwill of the company. There’s a process for registration of all agreements that contain transmitting a trademark without the goodwill of the company.
9. EXPLAIN THE INFRINGEMENT OF TRADEMARKS.
ANS
Registration of a trademark may be a prerequisite for initiating an infringement action. The registered proprietor, his/her heirs and users can sue for infringement. An assignee of a registered trademark also can sue for infringement. The following essential prerequisites must exist for initiation of an infringement action:
1. The allegedly infringing mark must be either identical or deceptively like the registered trademark.
2. The goods/services in reference to which the allegedly infringing mark is used must be specifically covered by the registration of the registered trademark.
3. The use of the allegedly infringing mark need to be within the course of trade.
4. The use must be in such a manner on render the utilization likely to be taken as being used as a trademark.
A registered trademark (RTM) is also infringed via use of a mark when due to.
i. Its identity with RTM and similarity with goods/services covered by registration;
Ii. Its similarity with RTM and identification with goods/services covered by registration; or
Iii. Its identity with RTM and identity with goods/services blanketed by registration
It is likely to cause confusion on the a part of the public (in case 3 above, confusion is presumed), or which is likely to have an association with the RTM.
If an identical or similar mark is employed with appreciate to goods or services that aren't almost like these that an RTM is registered, such use amounts to infringement if an RTM has reputation in India and therefore the use of the mark without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the RTM.
Under the TM Act, the subsequent acts would additionally amount to an infringement of the RTM:
1. Use of the RTM as a brand name or a part of the alternate name dealing in same goods or services that the RTM is registered.
2. Use of the trademark in advertising if such advertising takes unfair advantage of and is contrary to the honest practice in industrial or commercial matters, or is detrimental to its distinctive character; or is against the recognition of the trademark.
Under the TM Act, even verbal use of the mark can constitute infringement.
Passing Off:
The user of an unregistered trademark is barred from instituting an infringement action. However, if the mark in question has become well known in India, the user of such a trademark isn't without recourse and should also seek a remedy by means of a passing-off action. The aim of this tort is to protect commercial goodwill and to make sure that the user’s business reputation isn't exploited.
Since business goodwill is an asset and, therefore, a species of property, the law protects it against encroachment as such. During a passing-off action, the plaintiff got to establish that the mark, name, or get-up-the use of which by the defendant is subject of the action is exclusive of his/her goods within the eyes of the public or class of public which his/her goods are identified within the market by using a particular mark or symbol. A passing-off suit are often converted into a combined action of infringement and passing off, if the registration of the trademark is obtained before the ultimate hearing of the passing-off suit.
Orders in Infringement and Passing-Off Suits:
In an action for infringement of a registered trademark, or in an action for passing off for either a registered or an unregistered mark, the court may order an injunction. The court docket can also pass an order to award damages on account of profits lost alongside the delivery of the infringing marks, for destruction or erasure. In addition to the civil remedies, the TM Act contains stringent criminal provisions bearing on to offences and penalties.
Indian courts are proactive in granting orders against the utilization of infringing domain names. In the www.yahoo.com vs. Yahooindia.com case, it's been held that ‘the name serves an equivalent function as a trademark, and isn't a mere address or like finding number on the internet, and, therefore, it's entitled to equal protection as a trademark.’
Often, new ventures neglect to approach the difficulty of emblems in an organized way. It’s important for entrepreneurial firms to determine a trademark within the youth of the organization and to guard it once it gets established. The following path is recommended for firms in creating and handling their intellectual property within the sort of trademarks.
Select Trademark:
The trademark chosen should be distinctive. There shouldn't be any scope for confusion with existing trademarks. Not solely is it bad for business, it's unlikely to be registered by the Registry of Trademarks. Also, the trademark should be attractive to the consumers.
Search and Register:
A few selected trademarks should be submitted at the Registry of Trademarks for a paid search. Even the unlikeliest of trademarks could are visualized and registered by someone within the past. This search will virtually eliminate the possibility of a similar trademark having been registered earlier.
Establish Trademark:
The trademark are often established in the market by brand building exposure. A trademark is established by building recognition. Adequate investments need to be made in an appropriate marketing and marketing strategy.
Protecting Trademark:
The trademark is protected by regularly scanning the market for imitations and attempts of passing off. The market has got to be monitored by the sales team. The Journal of Trademarks has got to be scanned to make sure that similar or equal trademarks don't get registered.
10. WRITE A NOTE ON COPYRIGHT
ANS
Copyright refers to the right of the owner of property. In simpler terms, copyright is that the right to copy. This means that the first creators of products and anyone they provide authorization to are the sole ones with the exclusive right to reproduce the work.
Copyright law gives creators of original material the unique right to further use and duplicate that material for a given amount of time, at which point the copyrighted item becomes public domain.
When someone creates a product that's seen as original which required significant mental activity to make, this product will become intellectual property that has got to be protected from unauthorized duplication. Samples of unique creations contains computer software, art, poetry, graphic designs, musical lyrics and compositions, novels, film, original architectural designs, website content, etc. One safeguard which will be wont to protect an ingenious creation is copyright.
Under copyright law, a piece is taken into account authentic if the author created it from independent thinking barren of duplication. This sort of labor is acknowledged as Original Work of Authorship (OWA). Anyone with an ingenious work of authorship automatically has the copyright thereto work, preventing anyone else from the usage of or replicating it. The copyright are often registered voluntarily by the first owner if he or she would really like to urge a whip hand within the system if the necessity arises.
Not all kinds of work are often copyrighted. A copyright doesn't protect ideas, discoveries, concepts, and theories. Brand names, logos, slogans, domain names, and titles also can't be protected under copyright law. For an original work to fall into creation, it's to be in tangible form. This suggests that any speech, discoveries, musical scores, or ideas need to be written down in physical form so as to be protected by copyright.
Copyrights
Law – Copyrights Act 1957, amended in 2012
Copyright may be a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and therefore the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.
Copyrights of works of the countries noted within the International Copyright Order are protected in India, as if such works are Indian works. The term of copyright in a work shall not exceed that which is enjoyed by means of it in its country of origin.
Acquisition of copyright is automatic and it doesn't require any formality. Copyright comes into existence as soon as a piece is made and no formality is required to be carried out for acquiring copyright. However, certificate of registration of copyright and therefore the entries made therein serve as clear evidence during a court of law with regard to dispute relating to ownership of copyright. Application for copyright is often filed in Copyright office.
Computer Software or programme also can be registered as a ‘literary work’. As per Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied alongside the application for registration of copyright for software products.
The 2012 amendments make Indian Copyright Law compliant with the internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
1. Literary
2. Dramatic,
3. Musical and
4. Artistic works Lifetime of the author + sixty years from the start of the calendar yr next following the year during which the author dies.
1. Anonymous and pseudonymous works
2. Posthumous work
3. Cinematograph films
4. Sound records
5. Government work
6. Public undertakings
7. International Agencies
8. Photographs Until sixty years from the start of the calendar years subsequent following the year during which the work is first publish
India has a very large copyright-based creative industry. Two The Copyright Act is comprehensive and with the recent amendments, the rights of creators are strengthened. India was the first country to ratify the Marrakesh Treaty 2013 for Access to copyright works for visually impaired persons. Enforcement in copyright has been sizable and can be further reinforced. Judgments of Indian courts have adequately balanced the rights of copyright owners with the rights of public. Moral rights are fully recognized.
The venture within the future is that the enforcement of copyright in digital platforms that the statute has adequate provisions. Indian copyright owners also are victims of copyright violations and piracy. Apart from Copyrights Act, Information Technology Act, 2000 too has certain relevant provisions for copyright in electronics and digital field.
The venture within the future is the enforcement of copyright in digital platforms that the statute has adequate provisions. Indian copyright owners also are victims of copyright violations and piracy. Aside from Copyrights Act, Information Technology Act, 2000 too has certain relevant provisions for copyright in electronics and digital field.
There are disagreements over the question whether Software are eligible for copyrights or for patents. Copyright Office recently held that software, if aren't in conjuncture with novel hardware should be protected by copyright. This is often relief for software program industry as Copyrights are cheap, automatically recognized and protects for 60 years while patents are just for 20 years.
