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Trademark
What is a trademark?
Trademark is a sign that helps distinguish the products from a particular producer or enterprise from those of its competitors. By providing a distinctive sign to goods or services produced by an enterprise, trademarks create an enduring image in the customers’ mind.
What can be used as trademark?
Trademarks may be a word or a combination of words, letters and numerals. They may also consist of drawings, symbols, 3D signs such as shape and packaging of goods, or colours used as a distinguishing feature.
Does trademark and brand really mean the same?
Contrary to widespread use of both terms as synonyms, a trademark is an identifier or “face” of the brand, not the brand itself.
What is the process of registration of a trademark?
The process of registration of the trademark consists of the following steps:
- SEARCH: Conduct a trademark availability search
- FILING: Trademark application to be filed with Trademark office
- EXAMINATION: Trademark Office examines the registrability of the application
- PUBLICATION: Acceptance of application by the Registrar is published in Trademark Journal
- OPPOSITION: After publishing applications in the Trademark Journal, third party(ies) can oppose the registration within 4 months in a prescribed format.
- Applicant has the option to provide justification to the Trademark Office for such opposition
- NO OPPOSITION: Trademark is entitled for registration
For more information log onto www.ipindia.nic.in
What rights does the registered trademark confer on business?
Registration gives the exclusive right to use the mark in respect of goods or services for which it was registered.
What are the advantages of trademark registration?
The advantages of trademark registration are following:
- Protects your hard earned goodwill
- Protects your name from being used by others
- Creates a favourable impression in the mind of your consumers
- Helps in obtaining relief in case of infringement
- Gives you the right to license /assign trademarks
Can trademarks be renewed?
Yes. A trademark is initially registered for a period of 10 years, calculated from the date of filing of the application. It can be renewed every 10 years by paying the requisite fees.
Can a Trademark be removed for non use?
Yes, any person can submit the trademark removal application under Section 47 of the Trademark Act if;
a) No bonafide Intention – If a trademark has been casually filed without the intention that it should be used in relation to those goods or services, it may be removed. or
b) Non-use for five years – When a trademark has not been used for a continuous period of five years from the actual date of registration,
Industrial Design
What is industrial design/registered design?
From the IP point of view, industrial design refers only to the ornamental or overall visual appearance of a product
What are the essential requirements for the registration of industrial design under the Designs Act, 2000?
For registration of industrial design, under the Designs Act, 2000 following points must be adhered to:
- Design should be new or original, not previously published or used in any country before the date of application for registration.
- Design should relate to features of shape, configuration, pattern or ornamentation, composition of lines or colours applied to an article.
- Design should be applied to any article by any industrial process or means whether manual, mechanical, chemical, separate or combined.
- Design should not be linked to any functional aspect of the article.
What cannot be protected by an industrial design?
The following cannot be protected:
- A manufacturing process;
- Functional features of an article
- A principle of construction, or how an article is built
- The materials used in the construction of an article
- The useful purpose (functionality) the design serves or is intended to serve
- Colour per se or Ideas
What is the duration of the design registration in India?
Registration of a design lasts for 10 years from the date of registration which can then be renewed for another 5 years. However total term for registration cannot exceed 15 years.
Where to file industrial design applications?
File Industrial design application at any branches of the Office of the Controller General of Patents, Designs, Trademarks and Geographical Indications.
How long it takes to register industrial design in India?
It takes about 6 ~ 10 months for industrial design registration in India.
Copyright
What is Copyright?
Copyright is a type of IPR protection that helps to protect the intellect of human creation. Copyright law provides exclusive and monopoly right to the creator/author/owner of “original” literary, dramatic, musical, artistic works, cinematograph films. Computer Software is considered literary work; hence it is also protectable under copyrights.
Different Classes of Work Protected under Copyright are:
- “Literary work”: Computer programmes, books, articles, poems, tables and databases.
- “Artistic work”: Paintings, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; a work of architecture; and any other work of artistic craftsmanship.
- “Musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy Copyright protection. Example: Written work of lyricist, composer and rights of the singer.
- “Sound recording” means a recording from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. Example: Sound recordings fixed in a CD-ROM, DVD-ROM, USB drive.
- “Cinematograph film” means any work of visual recording on any medium, produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films. Example: Movies
Why should one register for Copyright?
Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring Copyright in India. However, certificate of registration of Copyright and the entries made therein serve as a prima facie evidence in a court of law and therefore, would help in establishing authorship and also infringement.
In case the author or the owner decides not to register, the work should be properly dated and signed. This may be useful in case of engineering drawings.
Note: In case of registered or unregistered work, the symbol “c” with circle “© “ is used along with the name of author, year of first publication on the work, to signify that work is under Copyright protection for a specific duration. If this sign is associated with any work, it means the work is Copyrighted.
Source: Copyright Office, Government of India
How a creator is benefited from Copyright and its creation?
Copyright owner has economic rights as well as moral rights:
i) Economic rights:
Copyright protection is a form of intellectual property which provides similar right as to the owner of Land/Home. The owner of a land can use, may give it on lease, and sell it. Similarly, the protection provided by Copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create. A Copyright owner can:
- Make use, sell and distribute his/her work to earn economical reward: The Copyright owner can make copies of the work protected by Copyright or related right and sell the same.Examples: Printed copies of the book and sell the same directly.
- Assign the work (sell): The Copyright owner can assign his/her current work or proposed work to a third-party in return of onetime payment or royalty. For e.g. an author is writing a book and once fixed assigns the rights to sell the printed copies of this book to a publisher. However, for the proposed work, assignment will come into force only when the book is completed and fixed in a tangible format. The Copyright owner can completely or partially assign his/her right but this assignment is only valid if it is in written format signed by the Copyright owner or his/her legal representative. Term of assignment and extent of territory must also be specified as per the Copyright Act, otherwise by default the term of protection will be 5 years and will extend for whole of India.
- License the work (Lease): The creator/author can license his or her work to one or more companies with certain fixed set of terms and condition in exchange for payment.
ii) Moral Rights or Author’s Special Rights: Independent of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right:
- To claim the authorship of the work; and
- To restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work, if such distortion, mutilation, modification would be prejudicial to his honour or reputation.
What is the term of protection for Copyright?
Term of Different Classes of Copyrights is as follows:
| S.No | Class of Work | Term of Protection | Explanation |
|---|---|---|---|
| 1 | Literary (including computer software), dramatic, musical photograph, and artistic | Life time + 60 years. The 60 year period is counted from the year following the death of the author | The period of counting 60 year for this process starts from next year following the year in which author dies. Example: if Author dies in say 2nd Nov, 1979. So, duration of protection of 60 years period will be from 1st Jan, 1980 to 31st Dec, 2040. Also, in case of joint author, year count for this process will depend upon the author who dies last. Example: Author X and Y are co-author of a work. Author X dies on 4th April 1988 and Y dies on 26th August 1991. So duration of protection of sixty years period will start from 1st Jan, 1992. |
| 2 | Cinematograph films, Sound recordings, Posthumous Publications, Works of Government, Work in Public undertakings and Works of international organizations | 60 years period is counted from the date of publication | Date of publication is always the first publication of the work. Period starts from the beginning of next year, following the year in which film was first published. |
| 3 | Anonymous and pseudonymous publications | In case of a literary, dramatic, musical or artistic work, which is published anonymously or pseudonymously, copyright subsist until 60 years from the beginning of the calendar year next following year in which the work is first published. PROVIDED that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which author dies. Source : The Copyright (Amendment) Act, 2012 |
What are the steps in the copyright registration process?
Copyright registration process consists of the following steps:
- Application to be made in form XIV
- One application to be made for each category of work
- Every application should be signed by the author or owner of right
- Application for registration of a computer programme should be accompanied by source code/object code
- Application should be accompanied with the official fees
- The person applying for registration shall give notice of his application to every person who claims or has any interest in the subject matter of the copyright
- If no objection is received within 30 days by the Registrar, the particulars given in the application will be entered in the Register of Copyrights
Is copyright registration mandatory?
No it isn’t but getting copyright registration is the best way to seek legal remedy as it serves as a prima facie evidence in a court of law, in case of any dispute arising out of copyright ownership issue.
Patents
What is a Patent and how does it help the innovators?
Patent is a statutory right granted by the respective governments. It gives one the exclusive rights and bars others from making, using, selling and importing product or process, based on the patented invention without one’s prior permission.
What are the criteria of patentability?
For an invention to be patentable, the criteria of patentability are as follows:
- It should be novel: invention should not have been published or used anywhere in the world before the date of filing the patent application in the patent office.
- Must involve an inventive step: a feature of invention should involve a technical advancement as compared to existing knowledge or having economic significance or both
- Capable of industrial application: invention is capable of being made or used in an industry
- It should not fall under the categories of inventions that are excluded from patentability under the concerned jurisdiction
Where do I to begin?
The first step starts with a prior art search which means a thorough search of various patent databases, technical literature and can even include a market survey. This is for determining if the invention is novel and non-obvious on the date of filing the application. If it is not so, then a patent cannot be granted for such an invention.
Where do I file my application?
Once the application has been drafted, one needs to file the patent application with the Indian Patent Office in the prescribed format and submit it along with the requisite fees. One can also file their patent application online. For more information log on to www.ipindia.nic.in
What is a provisional specification?
Provisional specification is filed if one is not yet ready with the full invention but want to have an early filing date.
What is the complete specification?
Once the patentability of the invention is established after a thorough prior art search, a patent application should be drafted. This document is known as the complete specification.
It must comprise:
- Title of the invention indicating its technical field
- Abstract
- Prior art and drawbacks in the prior art (if any)
- Solution provided by the inventor to obviate the drawbacks of the prior art
- A concise but sufficient description of the invention and its usefulness
- Details of the best method of its(invention’s) working
- Claims
Can a patent be granted on the basis of provisional specification?
No, a complete specification must be filed within 12 months of filing the provisional specification. Remember the Patent Office will not examine the provisional specification for grant of patents.
What are the steps in the registration process?
Following are the steps in the registration process:
- File a patent application in the IPO
- Patent application is published after 18 months or one has to request for early publication
- File a request for examination along with requisite fees within 48 months from date of filing-without the request the application will not be examined (Form 18)
- First Examination Report (FER) is issued if Patent office is not satisfied
- 12 months time to respond to the FER
- Pre-grant opposition can be filed by any person after the date of publication of application but before the grant of patent
- If requirements are satisfied, patent will be granted and notified in the Patent Office Journal
How much time does it take for granting of a patent?
It takes around 3 to 5 years to get a patent.
What is the term for patent in India?
The term of every patent in India is 20 years from the date of filing. However, in case of applications filed under the Patent Cooperative Treaty (PCT), the term of twenty years begins from the priority date.
What is PCT?
PCT stands for Patent Cooperation Treaty. It is an international treaty for claiming one’s domestic priority in member countries of PCT. Through PCT one can file applications in countries of interest within 30 months of the priority date. Under the PCT system, a patent search report is provided and on demand a preliminary examination of application is also done. This additional information helps in delaying the investment by 30 months.
