A copyright is a legal right given to the original creators of work. The rights are given to the creators in order to protect their work from being exploited, copied, or misused. It’s a type of asset which can be transferred from one person to another. Mere ideas are not granted a copyright. But the ideas which can be expressed are given copyright rights. The copyright in India is governed through the Copyright Act, 1957.

 

This process to register one’s copyright includes the submission and verificationof documents. At times, there are chances that some objections may come up during the process.

Copyright objections are raised by the registrar or the examiner during the copyright registration process.  It is not a direct denial of the application but a way through which the examiner seeks explanations and clarifications by the applicant for such errors. Objections are raised at the initial stages of Copyright Registration.

REASONS FOR OBJECTION

One of the main reasons for Copyright Objection is:

  • Identical work
  • the copyright of the work already exist

The main agenda of giving copyright to a specific work is to safeguard or protect the uniqueness of the work from getting copied or misused. Similarly, if a person demands for copyright of a work already published or created, contradicts the very reason of getting copyright protection. Therefore in such cases, the examiner or the registrar makes sure that the work is unique and that there is no duplicity in the work. 

REPLY TO COPYRIGHT OBJECTION

Once the application is filed, the applicant has to wait for a time period of 30 days. In case if there are objections raised by the examiner or the registrar, then it becomes a legal obligation of the applicant to rectify or clarify the errors. Each and every complaint/issuesmust be appropriatelyreplied. This is done through a “Reply to the CR (copyright) Objection”. This reply to the CR is a formal legal letter which is filled by the applicant. There is no prescribed form of drafting this reply. This reply becomes an opportunity to give clarifications for all the objections.

Certain documents are required to file a Reply to CR Objection:

  1. Documentary proof is a must. For e.g. An affidavit
  2. Power of attorney which should be signed by the applicant
  3. A copy of the examination report which gets uploaded on the portal.

The above three documents are necessary to file a reply to the CR objection.

ADVANTAGES OF FILING A REPLY TO OBJECTION

  1. It proves to be a second chance for the applicant to save his application from getting rejected. Receiving a timely response from the applicant saves the copyright application.
  2. Once the creator gets copyright protection, he/she has legal protection for his/her creative work; hence one should reply to the objection even though he may think that he will not receive protection.
  3. Filing a reply from the applicant would be considered as he/she has got no other infringement issues at the time of the registration.

As soon as a reply is sent to the examiner/registrar, the applicant needs to wait for further response. The examiner may approve the application and enter the same into the Copyright Journal, or he/she may reject it.

CONCLUSION

Registering of a Copyright in India is a lengthy process. To get the process right, it becomes essential to follow each and every step correctly. The best way to get this process done is to appoint a legal Person. They have better knowledge and understanding of the same. When you appoint a lawyer, the burden shifts on totheauthorized person, and he/she becomes liable to help you with the registration and also to draft replies and maintain the time frame of objections, if any. Hence, while registering copyright, make sure it isyour own work so that fewer objections are raised.

DEFINITION

  • An assignment is a legal agreement or a document prepared to transfer or sell an asset or debt to some other party
  • Trademark rights can be transferred from one person to another through modes of ‘Licensing’ (partial transfer of rights) or an ‘Assignment’ (full transfer of rights). When a trademark is assigned to another person, the ownership of the rights in the trademark is transferred to the other party as per the terms listed in the agreement. Both registered and unregistered marks can be assigned.

TYPES OF ASSIGNMENT

  1. Absolute assignment

It is generally made for a valuable consideration. It is a result of passing the title in the markabsolutely to the assignee and the trademarkownerin no way retains any interest in the policy.

  1. Partial Assignment

This type of assignment is where the transfer of rights is limited to only certain goods and services. For example: If an entity has two products,i.e. a different variety of bulb and tube lights and only one of them is entered into an assignmentdeed i.e.to only give rights vested in the bulbs and not tube lights, then it would be a case of partial assignment.

  1. Assignment with good will

It is a type of assignment where trademark rights and the market value which is associated with the product is also transferred.

  1. Assignment without goodwill

In this assignment form,the owner of the brand restricts the buyer from using the trademark in relation to items the owner uses the mark for.

TRADEMARK ASSIGNMENT

STEP 1:First step is to draft an application by the person who is making the transfer of rightsto another person with full details relating to the transfer.

STEP 2:After making the application, the authorized person must present it to the trademark registrar.

STEP 3:  In the case of an assignment with goodwill, then the suggestions given by the trademark registrar has to be followed compulsorily before the registration expires.

STEP 4: The trademark registrar might give an order for advertising such a brand or the company which ought to make a registration for their trademark. And the copy of such advertisement and also along with it the trademark registration instructions should be submitted to the authorized authority.

STEP5: After the procedure, the registrar will investigate the documents and other essentialangles of the application and then he will officiate the transfer between both the parties.

POINTS TO NOTE

Few things to be kept in mind while:

  • Correctly identify the trademark to be assigned.
  • Understand the scope of the assignment.
  • Discuss the payment terms thoroughly.
  • Due diligence to be conducted by both the parties.
  • The effective date when the assignment is made.
  • Other considerations involved in the assignment.
  • The notarization of the assignment deed.
  • The signature of the parties along with witnesses.

GENERAL ERRORS

  • If a proper description of intangible assets to be transferred is not provided,then an error might occur which can only be rectified after giving an adequate legal description of the intangible assets that arebeing transferred in order to avoid mistakes in the assignment.
  • If the assignment does not contain the notary seal, then it might be subject to cancellation of the assignment.
  • If the assignmentcontains proper documentation regarding the witnesses but when the witnesses are called upon, and they are missing, then the assignment shall be scrutinized accordingly.
  • Hence, it is always better to hire a professional advocate who can guide you with the legal matter.
  • It is vital for the assignment to be in place and avoid errors as it takes almost around two weeks to 3 months for getting the deed rectified by the appropriate authority.

ADVANTAGES OF REGISTERING AN ASSIGNMENT

  • Responsibility: There is no additional responsibility in the case of the owner in relation to the management of the IP title, including the payment of fees or the monitoring of infringements.
  • Valid proof: If any dispute arises in the near future, then they can clarify using the assignment as a valid source of evidence for that particular matter.
  • Security: The trademark assignments registered with the registrar is documented, i.e. it will always be helpful in case any trickysituation arises.
  • Market value: Once an assignment is registered, the brand would have an actual market value and it will also have recognition over other companies. 

CONCLUSION

Trademark assignment agreements are essential in IPR as they allow the right holders to waive off their rights in their IP in return for achieving commercial gains. A trademark assignment gives rise to legal and equitable rights in law and affects the public at large, although it is a private transaction between only 2 parties. Hence, even though the law provides a few safeguards, the burden of creating a sustainable trademark assignment lies upon the concerned parties. For this, the fundamental issues mentioned above should be catered to, in order to validate the trademark assignment deed.

THE PATENT ACT

In India, the patent act is governed by The Patent Act, 1970. It was Delhi high court which recognised the need for the assignment of patent rights. Due to section 19(1) of the copyright act patent assignment came into the picture. The word “Assignment” is not defined under the Patents act. However, Section 69 of Patent Act 1970 provides for the assignment of patent rights to another party.

PATENT ASSIGNMENT

  • An assignment is an agreement which legally allows the transfer of some property or debt to another party. It can also be made to sell some property.
  • Patent owners are the people who have been entitled to certain exclusive rights for their invention. Over here, the important part is that the inventors are always not the owners. Only the owners enjoy such rights, and they also have the option to assign such rights to some other party.

Further, it is essential to understand the difference between License and Assignment .

PATENT LICENSING PATENT ASSIGNMENT

In a patent license, the owner of the patent only transfers his/her rights for a limited time and not the ownership.

In a Patent assignment,the owner of the patent transfers the entire ownership of the patent.

The owner of the patent changes temporarily.

The owner of the patent changes permanently.

Information about the new owner is not available to the general Public

Information about the new owner is accessible to the general public.

If future demands, then in such a scenario, the owner can sell the patent to someone else.

In this scenario, the owner loses all the control over his patent, and he can’t claim anything in future.

TYPES OF PATENT ASSIGNMENT

  1. Patents Issued

One of the most common types of patent assignment is Patent issued. In such a case, the rights transferred or assigned are of the patents that have already been issued.

  1. No Patent Issued

This type is also known as No Application Filed. As the name suggests in this type, those invention rights are transferred which are unregistered with no patent.

  1. Exclusive Rights

These are the exclusive rights granted to the owner of the invention. Such rights are transferred or assigned to the other party through a legal document.

  1. Patent Application:
    In this scenario, the patent is still in the application process. Once this process is completed, the assignee can fill the form and be the applicant.

*NOTE: Assignor: Grants his/her rights.

Assignee: receives rights from another party.

PROCEDURE FOR MAKING A PATENT ASSIGNMENT IN INDIA

STEP 1: To start with the first step, it involves the making of the Patent Assignment agreement,which is a legal document.the This document will include the patent number and the patent title. Assignor and Assignee name would be mentioned too.

Given below is a sample Patent Assignment form.

STEP 2: It’s the most crucial step of the process. It contains all the vital information like the names of the assignor and assignee, the rights which are to be transferred and any clause related to a financial transaction is to be properly included in this agreement.

STEP 3: For the agreement to become valid, it has to be signed by both the parties involved. The contract should also be verified by a legal person so that in the near future disputes can be sorted quickly.

STEP 4: Notarization of the agreement is essential. Without notary, the agreement is not considered valid. 

STEP 4: The last step involves the payment of fees and submission of the agreement.

PROPRIETORY INFORMATION AGREEMENT

This assignment agreement comes into the picture when there is an employee-employer relationship. The employees in an organization are requested to assign their Patent rights of inventions during the course of their employment. This agreement is made to avoid any confusion. Signing the Proprietary Information Agreement automatically assigns the designs and inventions to the business.

In case there is no employee-employer relationship, and you have independent contractors, Joint collaborators or anyone who is not working permanently with the company, you can still ask the concerned person to assign the inventions in the name of the business. For this, the business organizationis required to make sure that the Proprietary Information Agreement was signed before assigning the job. 

POINTS TO NOTE

  • Once the assignment form is signed, the patent agreement needs to be filed within three months. Otherwise, the assignee may lose ownership rights.
  • Terms should be clearly mentioned to avoid ambiguity.
  • Understand the scope of the assignment
  • Signatures of both the parties with witnesses
  • The notarization of the agreement deed

GENERAL ERRORS

  • Anything verbal is not legal. To make an agreement considerable in the court of law, it becomes necessary that the agreement is in writing.
  • Assignment being a legal document in nature, information mentioned therein, should always official. Relevant documents need to be presented at times to match the information. Sometimes there are more owners to a single patent. Legal names of all the owners should be mentioned.
  • Don’t forget to add the patent number and patent title. Identify the patent accurately to avoid any future obstacles.
  • Making or selling the invention is only allowed once the assignment process is done. No such action is to be taken before the completion of the process.

ADVANTAGES OF REGISTERING A PATENT ASSIGNMENT

  • Monetary Gains: One of the prime reasons as to why a Patent right holder transfers the ownership of his patent is to achieve monetary gains by selling their product for a one-time lump sum amount. This amount can be in lakhs and crores depending upon the market forces such as demand and supply of the particular invention or product.
  • Economic Growth: Assignment of patent rights gives a boost to the economic stability of a country. Chances of more inventions increase in a country, leading to indirect development of the country.
  • Zero Responsibility: Asthe patent rights are now assigned, the responsibility of the assignor becomes null. In the future, in case any dispute arises, the assignor won’t be responsible anymore.
  • Valid Proof: In the near future, this assignment works as a valid proof that assignment was done on this particular date and thereon.

CONCLUSION

A patent Assignment agreement is essential in IPR as it gives the owners the right to sell or transfer them to another party in return for monetary gains. It’s a lengthy and complicated process, and to avoid any mistakes and errors in the procedure of this, it is important to hire a legal person for the same. A lawyer can easily rectify those errors and make sure no mistakes are made. It’s better to conduct this process lawfully as any mistake could lead to severe complications ahead. Both the concerned parties should co-operate and make sure there is no malafide intention involved.

DEFINITION

  • An assignment deed is a legal document which helps in the transfer of ownership of a property from one party to another.
  • Since copyright is a private right, it is transmissible through an assignment.Copyright assignment refers to the transfer of intellectual property either wholly or partially from the owner to the other party.
  • The copyright transfer document must be in writing and should be signed by the owner of the copyright. A person who is authorized,such as a business associate or an advocate of the owner of the copyright can also sign the copyright transfer document to make it valid.

MORAL RIGHTS

Moral rights are the rights which are not transferred even if the person transfers his/her copyright rights. The term "Moral Rights'' says that an assignor has full power to make sure his/her work is not damaged , harmed or modified by the assignee. The assignor can claim compensation for the same before the expiration of the time period allotted to the assignee for copyright rights.

Such rights have been made to protect the work of the creator so that in future no dispute arises.

TRANSFER OF FUTURE COPYRIGHT

According to section 18(1) of the Copyright Act, a person can assign his/her future rights vested in their copyright. This means a person can assign the rights of the work that is yet to be created. This future copyright prevailed without changes for many years until the recent 2012 amendment came into the picture.This amendment made it very clear that future transfer won't be applicable for the workswhich are mediums of exploitation. The following list can be followed for reference.

Works that may be eligible for a future copyright

  • Unwritten books
  • Screenplays
  • Tangible in Nature

Works that are not eligible for a future copyright

  • Technological products
  • Ideas / concepts
  • Intangible in nature

COPYRIGHT ASSIGNMENT

Step 1: Firstly, an application should be drafted in which the transfer of the copyright would be mentioned.

Step 2: After the application is ready, the second step is to sign the application by the person who is assigning his/her rights to theother party.

Step 3: It's the duty of the person or the legal heir to properly check the application which should have specifications like the rights which are being assigned/transferred , the royalty amount to be paid to the assignee, the amount of time for which the rights have been transferred.

NOTE: If the time period is not mentioned, then according to the copyright law, 5 years would be the period considered.

Step 4: Once all such things are checked, the last step which remains is the final sign by the legal person who was involved in the transfer of rights.

Step 5: If the document or the transfer application is signed by the legal person, then it means that the document has been verified and the rights have been transferred. In case the legal person refuses to sign the document then it becomes the responsibility of both the parties to sort the discrepancy.

REQUIREMENTS OF A COPYRIGHT TRANSFER

Section 19 of the Copyright Act lays down certain requirements for a copyright transfer:

  1. It is mandatory for the contract to be in a written form and the contract has to be signed by the assignor. If the contract is not signed by the assignor, then it's not considered to be valid.
  2. Rights the assignor is assigningshould be clearly mentioned with the proper territorial extent and the duration period.
  3. It is the responsibility of the assignee to make sure he/she exercises the rights granted. If the assignee fails to do so, whatever clause related to it is mentioned in the contract, the assignee has to abide by it.
  4. Money over here is an important factor. The royalty or the amount which is paid for the grant of copyright rights should be mentioned clearly.
  5. In some cases where the territorial extent is not mentioned, it shall be presumed to the extent in India.

POINTS TO NOTE

Few things to be kept in mind while you transfer copyright rights:

  • Correctly identify the copyright to be assigned.
  • Discuss the royalty that means the payment terms thoroughly.
  • Valid proofs to be attached of both the parties involved.
  • Understand the scope of copyright transfer
  • Make sure both the parties sign the agreement with a legal person involved.
  • Both the parties should have witnesses
  • Notary of the document to be done.
  • Other considerations involved in the agreement
  • Due diligence to be conducted by both the parties.

GENERAL ERRORS

  • If the assignee to whom the rights have been assigned by the assignor doesn't utilize the rights in a proper manner,then the assignor may complain to the Appellate board. On such a complaint, the authorized body may revoke such an arrangement.
  • In case if there is any dispute between the parties, then the Appellate board may ask the party to compensate the aggrieved party or as mentioned in the contract.
  • It is always better to hire a professional advocate who can guide you with the legal matter.

ADVANTAGES OF REGISTERING AN COPYRIGHT ASSIGNMENT

  • To the Assignor :When the assignor, assigns his/her copyright rights to another party, that person is bound to make monetary gains. Subsequentially, person to whom it is assigned has to pay them royalty based on the monetary gains.
  • To the Assignee :When the assignee receivesthese rights, he or she can make the most efficient use of this rights. It may help the assignee to make profits in the market.
  • Valid Proof :The trademark assignments registered with the registrar is documented, i.e. it will always be helpful in case of any trickysituation in the court.

CONCLUSION

Over here, the term 'assignment' and 'license' are not the same. An assignment has a wider meaning thana license; the licensegets only particular rights, whereas in an assignment, the assignee can exercise all the rights.People cannot always be self-sufficient For the betterment of the Art, the ownership rights of the creative works need to change hands and bring out the full potential of the original work by exploring various tiers of creativity. Nobody is entitled to copy, reproduce, publish or sell an original work without the permission of the creator, hence the copyright assignment is something which has become way important now. It is vital that such an arrangement is conducted under the supervision of a legal person so that no chances of error arises.

INTRODUCTION

Copyright is a type of intellectual property where a creator’s work can be legally protected. The main objective of copyright is to encourage and motivate writers, artists to enhance their creativity. It will also be valid for copyrights for films, songs and such other software and other original works and its objective is also to discourage artists and other people for illegal productions and to motivate more and more creative  outputs.

Meaning as per oxward dictionary: It means a legal right which is used to control the productions and selling a book which is authored by someone else, film, music ( lyrics), or a photograph  by a photographer and such other creativity .

BENEFITS OF REGISTRATIONS

  1. Creation of ownership: Once a copyright work is created, the creator becomes the owner of that creation of art even before the registration is complete.
  2. Legal action: The copyright holder can pursue and take legal action if his/ her rights are infringed through the court of law.
  3. Monetary value: After a certain period of time, one can avail the monetary benefits that arise from the profits of such original works.
  4. The number of copyrights: It lies upon the authority of the copyright holder regarding the number of copies he wants to reproduce from his/her creative work.
  5. As an Asset: The copyright holder  decides as to whether he/she wants to transfer or sell or keep the copyright for future use.
  6. Import and export: You can import or export partial or full part of your creative works to other countries and exploit your rights internationally.
  7. Royalties:  This is the best advantage of registering a copyright. No one can take away your creative work without paying you royalties for your creativity and hard work. Royalties are paid even after
  8. Social media publication: It's only the decision of the copyright holder whether he wants to put his works online or not.

WORKS THAT CAN BE REGISTERED

Only those copyrights can be registered which are mentioned under section 13 of copyrights rules 1957 :

  1. original literary,dramatic,musical and artistic work
  2. cinematography films
  3. sound recording

COSTS INVOLVED IN COPYRIGHT REGISTRATION

  1. For literary, drama and artistic work - The registration fees is RS.500/ per work
  2. Copyright in cinematography film - RS 5000/
  3. Sound recording - Rs. 2000/

PROCEDURE FOR COPYRIGHT REGISTRATIONS

  1. Filing an application: You must submit an application along with the prescribed fee in DD format or such other method as prescribed by the authority.  And after such payment application is filed and a diary number is given to the applicant. The applicant must wait at least for a period of 30 days after filing the application so that if no objection is raised further process is carried out.
  2. Examination: Inspection will be done by the authorities, and in case of any issue in the application, a letter is then sent to the applicant and upon the reply given by the applicant and the registrar conducts a hearing and the extracts for the same are sent to the applicant for registering their copyright. In case there are no discrepanciesand hence no objection is raised, then the application canproceed for registration.
  3. Online application: It should be compulsorily be filed online only by the applicant, and the below particulars must be filled properly, and it should be correct in all aspects :
  1. The owner's details who is applying for copyright registrations
  2. Details regarding the original work made by the applicant.
  3. Complete descriptions of the work which has to be registered.
  4. Details of the work published in India by the publisher and the year when it has been published and also the name of the publisher must be mentioned correctly.
  5. The place where the original work has been stored should also be mentioned.
  6. A notice of filing the application shall be sent to the applicant if the author of the original work and the person submitting the registration of copyright are different.
  1. Registration completion: As seen in the above steps the applicants copyright registrations solely depends upon the registrar of copyrights and after the registrar is completely satisfied from registrars end and if everything is clear one can expect the process to be completed within 8 to 10 months and if everything is not clear then it might take a lot of time. After proper completion of the copyright registration, the applicant shall receive a certificate of the same, and exclusive rights can be availed by the registered owner.

IS REGISTRATION OF COPYRIGHT NECESSARY IN INDIA

One of the major advantage of copyright is that registration is not necessary and not a mandatory requirement under the act. The only disadvantage  in not registering a copyright is that, in case a question of law arises in court, the registration certificate of the copyright can be produced in the court of law which can act as an evidence in that matter and it would be an added advantage to the applicant who has a registration certificate.

TERM OF COPYRIGHT REGISTRATION

The term of copyright registration is 60 years, and it lasts for a lifetime of the author or until the death of theauthor who has created such works and renewal of such registration is not mandatory.

In the case of cinematograph films, sound recordings, photographs, anonymous and pseudonymous publications, works of government and works of international organizations are protected for a period of 60 years which is calculated from the year following the date of publication.

RIGHTS OF THE COPYRIGHT OWNER

  1. First owner: According to the provisions of the act, the first owner shall be the author of the original work.
  2. Assignment of copyright:The owner of the copyright has the power to assign it to someone else fully or partially for a full term or for the half of the term as decided by the owner of the copyright.
  3. Disputes in relation to the assignee: If certain dispute arises between the first owner and the assignee then a  high royalty can be claimed by the first ownerif the assignee has committed any mistake, or vice versa.
  4. Right of the author to relinquish copyright:The author of such work can relinquish some or all his rights by sending a notice to the registrar of the copyrightsand if it deems fit then the registrar may cease the rights of the owner of the applicant at any point of time.

CONCLUSION

Copyright is a complete and exclusive right which is given to the owner to protect the work that he has created and which can be infringed at any point of time. The work can be misused or copied at any point of time. And thus, the copyright registration has its own benefits and it gives a solid legal protection to the registered owner.

INTRODUCTION

One deals with trademark everyday knowingly or unknowingly. If the brand is famous, then the customers tend to buy products of the same brand.

A trademark is a unique symbol used by various companies, to represent their business and after the registration of that trademark; no other company can wrongly use it as their own.The trademark registered by a company lasts for10 years, however, once it expires one can always renew it.

IS REGISTRATION COMPULSORY?

It is up to the owner to decide whether they want to register it or not. But, if one registers it is always advantageous during a dispute and if one takes up the trademark of another if the person has not registered the trademark then one can take action against the person who has forged the logo. The protection accorded to a registered trademark is stronger than that of an unregistered trademark.

Reasons why it is always better to register the trademark even if it is not compulsory:

  1. A good tool for effective communication: Other people can contact the company by immediately identifyingthe brand name through the logo.
  2. Finding customers: If your trademark is famous enough, the customer will be able to find you through your brand name. This will reduce your work of finding clients for your company.
  3. Effective use of social media:  Once more and more clients search for your brand, your website would get more recognition on social media and thus it will help the company to grow the business.
  4. Valuable asset: Trademarks intangible value shall increase once the business grows the value of trademark as well as that of the business increases.
  5. You can sell your trademark: This is the step that has immense monetary value. Once your trademark isestablished, and you wish to sell or license it,  and make good moneyout of it
  6. No expiry of trademark: One can keep renewing a trademark upon expiry of the trademark.

BENEFITS OF REGISTERATION

  1. Exclusive rights: If the owner has registered one's trademark, one can take action against the person who is using that trademark without the owner's authorization.
  2. Creation of trust and goodwill: Market enhancement through trademark registration.
  3. Global trademark registrations: If the owner of a trademark in India wants to register the trademark in other countries on can proceed with that also.
  4. Protection against infringement: No owner can use your markwithout your approval.
  5. Use of ‘R’ symbol: Once, your company is registered you can always put ‘R’symbol after your logo and such benefit is not given to an unregistered trademark. *You can use the symbol ‘TM’ if your mark is in the middle of registration and has not finalized yet.
  6. Low maintenance cost: After ten years of registration of a trademark,maintenance of a trademark can be done at low costs.

STEPS FOR REGISTERATION

  1. Trademark search: Before deciding a trademark for the business entity the future owner can search upon in the trademark database where one can get to know if that particular trademark is available for use or whether that trademark is used by some other owner.
  1. The person who is searching for the trademark must look into all three options, which are mentioned above.
  1. Filling trademark application: Before filing a trademark application, one must be ready with the following documents:
    • Form 48: which shows that an attorney is appointed for filing the trademark application.
  1. Udyogaadhar registration certificate: If a company or any other entity wants to entail fee discount during trademark registration, then one can show the certificate to avail it. Discounted price will be Rs. 4500 and original fee shall be Rs. 9500/-.
  1. Trademark class must be listed clearly to apply for trademark registration.
  1. Trademark examination: After filing an application, the trademark office will carry out an enquiry for the same.
  1. Status of the trademark application: After applying for trademark registration, the application shall be examined upon by the authorized trademark officer. It might take a few months if mistake arise during such examination, then one has to rectify it, and therefore the person who has applied for the trademark registration must keep a note on the process.
  1. Registration certificate: Once, the investigation is complete, and there are no more defects for the officer to point out and once this process is done the owner shall be informed through official gazette notification and publication. A certificate number will be given upon completion of registration.
  1. Trademark renewal: it can be renewed after every ten years so that it can be protected completed.
  1. Application rejection:
  1. The trademark must not be similar to other registrations
  2. It should not be a common term.
  3. False representation should not be made.
  4. It must not contain bad terms.
  5. It should not include names of personalities.

CONCLUSION

Developing countries, particularly India, require more sophisticated technologies to be competitive in today’s global economy. For which we need to give serious consideration to our policies for encouraging technology transfer. In addition to this, effective competitive strategies must be established. With growing pharmaceutical, software and entertainment industries, India has much to gain from implementing a more robust IPR regime. Increased intellectual property protection would boost bilateral trade and investment within India.

In a country like India where many independent individuals and company register their trademark in huge number it is the need of hour to educate people about the importance of trademark registration.

INTRODUCTION

It is the official legal right which is granted to the patent holder with the help of which the holder can sell, transfer the invention which is made by particular individual or an entity.

It is a type of intellectual property which is granted by the government for inventing something for the time period of 20 years. It is only provided for a minimum time period, and it cannot be extended. It allows the patent holder to use it, sell it, or transfer the patent to some other person.

The goal of patenting is to encourage innovations in various fields.Innovations will help in overcoming challenges that are faced by an individual and mayprovide solutions which help the nation in further development.

BENEFITS OF PATENT REGISTRATION

  • Perks ofearly application: If a person is sure about his invention, then one can file their patent immediately. The person who files his invention first gets a priority date for registering their patent before anyone else. If your work is incomplete, you can still submita provisional application, when you enter into such an application, no person can copy your invention for a period of 12 months before you have to complete your invention.
  • Exclusive: With your patent, you can stop others from copying your invention, remake it or even sell it or transfer it to another person.You can take legal action if your rights are infringed. This right stays until the patent registration's time expires. The span of the patent which is registered is 20 years.
  • Generating ROI after patent registration in India:Once you patent your innovation then you can also commercializeit, and you can sell your innovation at any point of time.
  • Safeguarding market status: It will be helpful in enhancing your business, you will be able to attract partners for your business and alsoinvestors for your business through registering your patent, and it will also be a positive step towards establishing business relationship with other small and large scale enterprises.

INVENTIONS THAT CANNOT BE PATENTED

Section 3D of the Indian Patent Act 1970, states that the following inventions cannot be patented:

  1. Inventions which are against the natural laws of the land.
  2. Inventions relating to atomic energy
  3. The invention which is only made with a commercial intention.
  4. Inventions those are harmful to the environment.
  5. Discovering which is already invented by someone else and only changing the substance of it is not acceptable.
  6. Agricultural method or inventions in horticulture cannot be patented.

This is not an exhaustive list. The entire list of inventions that cannot be patented can be referred from the Act.

PROCEDURE FOR REGISTERING PATENT IN INDIA

The person who fills the application form for patentregistration must note that it will be only for oneinvention and not more than that.

Step 1: Patent Searches: Before filing an application for patent registration,you have to conduct a search whether your novel idea is already patented by someone else. This will save your time during the application process.

Step 2: Patent drafting: After searching for similar patents around the globe, the patent should be drafted in Techno-legal manner where one must provide all technical specifications of the invention.

Step 3: Patent Application filing: Provisional application made is considered as the beginning of application procedure only a priority date will be given. Series of forms has to be arranged which is specified under Indian patent act 1970, which an advocate can explain once you hire one. Once, all papers are ready, file the application with the help of an advocate.

Step 4: Patent Investigation: Patent officer shall carry out the prescribed investigationthrough all aspects. If the officer is satisfied with the facts and specifications of your invention,then they start the registration process.

Step 5: Publication of Patent application: It takes about 18 months to complete the application.Upon completion of the application the patent is published in the journal and is open to Public.

Step 6: Grant of patent: After all enquiry and inspection and if the examiner is satisfied with your invention, the same shall be granted to you and a patent certification is also provided.

IMPORTANCE OF FILING DATES

According to section 9 of the Indian patent act, 1970 priority dates will be given by the authorized authority if the invention is not yet complete.However, once the priority date assignedto the applicant, one can complete their specifications within the prescribed time.

The first date of filing a patent application is known as the priority date. In the patent system, the first day of filling becomes very important, and if there are two patents which are almost same in the subject matter, then the person who has got an earlier priority date will be given preference.

The main difference between the filing date and priority date is that filing date is when the documents are filed at the said date in the patent office, and priority date means the date given even before the application is made.

IS PATENTING COMPULSORY IN INDIA

Yes, it is compulsory to register a Patent in India. Following are benefits of registration:

  1. Legal protection to one’s invention: If the patentee has not registered the patent and then their patent rights are infringed, they cannot take any legal action for the same.However, if one has registered their patent; they have legal rights against their invention.
  2. Transferable right: Once patent registration is done they have the right to sell or transfer their patent at any point of time.
  3. Competition: You will have higher benefits if your patent is registered and your business will grow more in comparison to your competitors.
  4. Asset: Once, your patent is registered, that would be exclusive rights of the patent holder and an asset to one’s business.

CONCLUSION

One can add specification or improve one’s invention but, one can do so only after they have registered their patent and the addition only if it is in relation to the main invention. These requirements must be complied with in accordance with section 54 of the act.

The patent registration is granted to a person but it can be revoked at any point of time, for the following reasons: Lack of novelty in your invention, insufficient technical specifications in your project, and if it is made for huge commercial profit, then it can be revoked.

And it is always advantageous to register your patent with the assistance of a lawyer in order to avoid revocation.

INTRODUCTION

A design is an original work which is created and listed in the area of art and fashion. It is also the aesthetic appearance of a product of the company.

The designs in India are over viewed by The Designs act 2000. The designs registration protects the features such as pattern, colors, shape, composition of lines etc. Since the design registration seeks to protect only the design of a particular aspect, it does not cover the method in which it is designed.

Objective of design registration is to encourage creativity and granting protection for the same.

DESIGN REGISTRATION IN INDIA

  1. Design should be original and creative and should not be copied and must be out of the box idea.
  2. It should not be used or shown or be published anywhere before registration.
  3. It must be made in compliance with morality and in accordance with the legal system in India.
  4. Any person who is the owner of such an innovative design or any law firm or acompany can apply for design registrations in India.

PROCEDURE OF DESIGN REGISTRATIONS

  1. Information regarding the applicant: Name and address of the applicant must be given properly.
  2. Legal status of the applicant: The person must mention the proper legal status.For example, whether he/she is an individual, or a company or a start-up of the applicant which is registered with the government of India.
  3. Description: Proper description should be given regarding original design made by the applicant and also such other classification as required under the design registrations in India.
  4. Documents required for registrations:
  1. Certified copy of originality of your design and four copies of your original design abstract.
  2. Affidavits adequately filled and signed.
  3. Declaration: where you have an expression on how your design is original from others in every way and such other documents as may be prescribed by the controller or registrar.
  1. Official fees: The official fees, along with a clear image of your design and the application form must be submitted along with the requisite fees as prescribed by the registrar.
  2. Examination of design and the documents submitted: After the application has been submitted by the applicant, an investigation takes place regarding the details given in the form First all minor defects are checked if any blanks have been left in by the applicant.Verification of documents is also done in respect to the validity of the design in all aspects and that it can be registered by the controller of designs.
  3. Opportunity for rectifying any mistakes in the application: If there are any issues in the application then the applicant gets the chance of responding to such an error, and if the controller is satisfied with the answer, then the application is accepted.
  4. Official gazette: Once, the design registration is complete, then it is published in the official gazette, and public awareness is created regarding such a design.
  5. Certification: The controller may grant design registration certificate after the whole process of registration is over, and the applicant shall obtain the same.  In case of loss or theft of such a certificate, one can claim it immediately.
  6. Term of validity: The process takes approximately 10 to 12 months from the date of application. Its validity shall last up to 10 years + 5 years upon renewal of the registrations.

ADVANTAGES OF DESIGN REGISTRATIONS IN INDIA

  1. Brand value: Designs are helpful in making the product of the company into a brand which will, in turn, increase the market value of the product which the company makes.
  2. Additional income: One can avail royalty from the brand value
  3. It can be used for loan purposes: If it’s a popular design then one can obtain loan from the bank by keeping it as a security against the loan.F
  4. It can   act as an asset to the business and can add significant value to the business set up.
  5. Rights to sell or transfer: The registered owner of design can sell, or transfer the design to someone else.
  6. Right to sue: In case, a situation arises where the design is copied by someone else without the knowledge of the owner then if the design is registered by the owner with due process of law then he/she canfile a case against such a person, which shall not be granted if the design is not registered. 

CANCELLATION OF DESIGN REGISTRATIONS IN INDIA

The design registrations can be cancelled on the following grounds:

  1. If the design is registered previously in any part of the country in India.
  2. If the design of the applicant cannot be registered due to non-compliance of rules.
  3. If the design is not new and original, it can be cancelled by the controller of design.
  4. If it published in India before registration.

CONCLUSION

If at any point of time or during any proceedings,the controller feels that some portion of an applicationshould be rectified, they can do so in accordance with laws relating to design registrations in India. It is not prescribed by the law to register one’s design but, one such registration shall be helpful in increasing the commercial potential of the industrial set up or a company and if needed  it can also be used for investment purposes.

INTRODUCTION 

A trade secret is referred as a procedure, process, design, instrument, or data storage relating to a business which is needed to be kept unknown or confidential from the public. It is a way through which the owner of trade secrets may get an advantage over their competitors.

Just like intellectual property, trade secrets can also add value and help the business to grow. It will create an entry barrier to other business entrepreneurs who are willing to enter the business with the same kind of trade secret.

Examples of trade secrets: Google search algorithm, KFC trade recipe, Coco Cola.

Trade secret registration in India is not compulsory, but few businessmen may choose not to share the trade secret of their business with anybody. This leads to the need of trade secret registration. Trade secret registration also helps in the realization of superiority among other competitors. Thus, it is always advisable to register one’s trade secret even if there is no prescribed legal procedure under the trade secret act for the same.

BENEFITS OF REGISTERING TRADE SECRET

  1. Different Idea: If the method which is helping your business to grow is a unique idea, then one can keep this unique idea a complete secret.
  2. Long term protection: Unlike intellectual property rights which do have a time barrier, the trade secrets don’t have such barriers. Trade secrets once registered can be safe-guarded for a lifetime. The key process to keep your trade secret forever is that if the data is opened, then the secret is lost.
  3. Popularity: It helps to create goodwill of the business, which in turn helps in the growth and maintenance of financial stability of the venture. The trade secret may serve as an asset to the company.

LEGISLATION REGARDING TRADE SECRET

In India, there is no specific law protecting the rights of the person possessing a trade secret. Thus, in any case, if such a right is infringed, the court of law does take a legal action against breach of such rights and in some instances they upheld the decision in favor of the person whose rights have been infringed in relation to a trade secret. An employee or any other person who is involved in such an issue can be sued for violating the clauses of a non- disclosure agreement and damages (in the form of compensation) can be claimed from such person. Few acts which do have a contract with trade secret rights are as follows:

  1. The copyrights act 1957
  2. Design act 2000
  3. Information technology act 2000
  4. The Indian penal code
  5. Indian contract act
  6. Competition act 2000
  7. The civil procedure code
  8. The criminal procedure code

Since people in business do not generally register their secret trade through the due process of law, no act has been enforced yet. However, the rights can be protected through contract law, copyright laws and principles of equity.

TRADE SECRET PROTECTION

There are some conditions laid down by Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement which governs rights in relation to trade secrets holders which may vary from country to country.

Article 39 of the trips agreement lays down that the information which is to be protected must be a complete secret which should not be readily available to others. It should hold high commercial value in the market.

CONCLUSION

Many countries outside India are giving proper attention towards trade secret laws, either making appropriate changes in the existing laws or implementing new ones. Since industrial areas are set up in India and businessmen invest a lot of time and money, enacting laws related to Trade secrets in India is a necessity now. This in turn will help in the growing of Indian economy.

The case laws in India have tried their level best to address various issues which crops up in relation to the definition of trade secret or set of confidential information that can be protected and also various remedies which are available against such infringement of rights in India.

Hence, it is the need of the hour to take action and start implementing laws for supervising trade secret in our country. Therefore, while making such an act certain important factors must be kept in mind.

INTRODUCTION

Geographical Indication (GI) is a sign or a symbol which is used for products where the origin of the product is specific in nature, and they possess certain special identity and quality relating to the origin.

For example: Mysore silks and Darjeeling tea which posses’ special quality of the origin is registered as GIs in India.

The objective of the GI is to ensure that no other user is allowed to use the authorized product name which has been registered as a GI.

The act which governs the GI is the Geographical Indications of Goods (Registration and Protection) act 1999.  

PROCEDURE FOR GI REGISTRATION

Step 1: Filing the GI: First of all it is very important for every applicant to check whether their product can be registered as a GI in India. The special characteristics of the product should differ from standards of other products and it should also be looked at how it is maintained by the producer of the product. All the procedure must be made in triple copies. Three official copies of the India map must be given with regional specifications to which the geographical indication relates to. The details on how the product is produced must be clearly mentioned during the application process. And the applicant must fill all the particulars of the person who wants to register the GI in India.

Step 2: Initial scrutiny and examination: The authorized officer shall carry out the investigation and find out defects if any. The applicant must reply to the questions of the examiner within one month and whether the same can be rectified by the applicant or not. The investigator shall investigate on the validity of the statements in the application form. A full report shall be issued to the applicant once the investigation procedure is complete. 

Step 3: Show cause notice: The applicant must reply to the examiner’s questions within two months or else attend a hearing and the decision of such an appeal shall be communicated to the applicant who has applied for registration. If the registrar is not satisfied with the reply given by the applicant, then he has the authority to withdraw or cancel the application.

Step 4: Publication in GI Journal: Once the application is accepted, within three months, it shall be published in the GI registrations journal.

Step 5Arguments against a GI registration: If a person files a notice for opposition after reading the journal, within three months of application he can raise an opposition of the GI registration. A notice can be filed and rebuttals can also be given for the same by the applicant who has applied for registration. After such notice is filed, either parties of the case can produce documents and affidavits for proving their statements. After hearing both the sides a final call is taken.

Step 6: Registration:  After the application is accepted by the registrar and no opposition has been filed, then the registrar shall complete the registration of the GI. The registrar shall issue a GI registration certificate to the applicant after the formalities are complete.

Step 7: Renewal: It shall be valid up to 10 years from the date of registration and can be renewed every 10 years by paying the prescribed fees from time to time.

Step 8: Appeal: Any person to whom harm has been caused by the decision given by the registrar, can appeal to the Intellectual Property Appellate Board within three months.

BENEFITS OF GEOGRAPHICAL INDICATIONS

  1. Legal protection: The registered owner only shall have the right to protect its GI which is properly validated from the registrar and who has maintained such standard shall be able to use such products and no one else. If some other person uses the product, then he/she can be sued. 
  2. Protection from false trade: It restricts others to carry out unfair trade practices by using someone else's GI. Punishment is imposed upon such unfair trade practices.
  3. Symbol of loyalty of products: GI helps the consumers to recognize the originality of the product and through that, one can distinguish between fake and real products. 

IS REGISTRATION COMPULSORY?

As per the GI laws, it is not always mandatory to register the GI. Section 20 (1) of the GI Act states that no person “shall” be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an “unregistered” GI.

The punishment for such infringement as per the act is imprisonment for the term of 6 months maximum up to 2 years and a minimum fine of Rs 50000 which can be extended as per the discretion of the court.

CASES WHERE GEOGRAPHICALINDICATION CANNOT BE REGISTERED

Confusion regarding the GI: When the product to be registered as a GI is not clear, and the details of the product create confusion, the product can’t be registered under GI.

Against GI laws: If the GI is not register as per the GI Act, then it cannot be considered as a registered GI.

Obscene content: If the product which is to be registered as a GI contains harmful ingredients which is a detriment to the health of the citizens of the country, then such products can’t be registered.

Harm religious beliefs: If the product to be registered under the GI tag hurts the religious sentiments of religious groups, then such a product cannot be registered.

Wrong information: If the applicant furnishes wrong information with details regarding the product then as per the discretion of the registrar, it is decided whether it should be registered or not.   

CONCLUSION

Even though under the GI laws it is not compulsory to register, once the GI is registered, it plays a significant role in the following situations:

  • It prevents the use of name of such product by the third party who does not fulfill the criteria for completing the registration.
  • It also helps in differentiating registered GI from other competitive products. 
  • It also enables the owner of the product to create a goodwill and popularity among many other products in the market, and it also increases the value of one’s business entity.

Hence, it is vital that your GI is registered in an appropriate manner. To avoid opposition and cancellation, you can take the assistance of a lawyer to draft your application.

INTRODUCTION

With new technological developments every day, our daily routine and business depends on technological advancement and competition in the technical field, a whole new branch has emerged in the technological area that is known as layout design or semiconductor integrated circuits.Before looking into the registration process of such a design, it is very important that one must understand the meaning of semiconductor integrated circuits.

Semiconductor integrated circuits means a product which is a combination of circuitry substances and which cannot be separated from the circuit’s component.It is governed by the Semiconductor integrated circuits layout design Act 2000 (SICLD).It talksabout the rules and regulations of the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement regarding the protection of Semiconductor integrated circuits layout designs.

PROCEDURE FOR REGISTERING INTEGRATED DESIGN IN INDIA

Step 1: Location for filing the application: It is essential to note the place where the business is situated and carried out, before filing the application. One must register their integrated design in that territorial jurisdiction only.

Step 2: Details of the applicant making the registrations:  The personwho is registering his/ her integrated design must furnish his/her full name, address, and description of the business.

Step 3: Complete details of the integrated design to be registered: The details such as the structure, technique, various formalities, and functions of the circuit must be mentioned on the form. It should also be different and unique from other registered integrated designs.Three sets of drawings and three sets of photographs on how such a product is developed should also be submitted to the concerned authority.

Step 4: Investigation by the registrar of integrated design: Afull-fledged investigation shall be conducted by the registrar. This process should be done within three months, and they shall investigate regarding the originality of such a design, uniqueness and commercial aspects of the integrated design. Make sure that this whole process is done as per the, provisions given under section 13 of the SICLD Act.

Step 5: Advertisement: After the application is accepted by the registrar, and once the criteria’s is fulfilled, then within 14 days, it should be advertised.

Step 6: Certification: `After the process is fully completed, and the registrar is satisfied with the application, then such an integrated design is registered and is recorded in the lists of designs. After this, a certificate of registration is provided to the applicant with a certificate number, and such certification shall be valid for 10years from the date of filing of registration of the integrated design.

Step 7: Joint Ownership: Generally in integrated registrations, joint ownership of registrations is not allowed. However, in exceptional cases, if both the owners have put full and equal efforts for making a  product, and since intellectual efforts are difficult to distinguish from each other,  then in such special cases, joint authorship is provided for a single integrated design registration is granted.

IS REGISTRATION COMPULSORY?

SICLD Act 2000 aims to protect the originality andthe uniqueness in accordance with the Act. Therefore, registration of such an integrated design layout is an important prerequisite if one wants to protect the ownership rights of such owner and upon registration; a new recognition is given to design. Information exchange of such a layout design is also given worldwide as sometimes such information is not furnished due to certain exceptions.

AMENDMENTS IN THE APPLICATION

If the applicant wants to make some corrections or make changes in the registration form, then they must do so under LD– 6 form along with the changes which are to be made in the application.

BENEFITS OF INTEGRATED DESIGN REGISTRATIONS

  1. Ownership rights: Once, the applicants receive their registration certificate; the originality of their design shall be valid for up to 10 years.
  2. Royalty payment: If someone wants to use if for commercial profits, then one has to license or sell their design and receive a royalty amount. This royalty amount is a lump sum payment, or sometimes in installments which can act as unforeseen profits for the registered owner for their design.
  3. Legal action: The owner of a registered layout-design shall have the right to assign the design to someone else. The owner shall also have the legal right to take legal action against any person who has infringed the rights of the registered owner.

CONCLUSION

The life of the product in various industries is short and the time and money invested in making a product is more.Therefore, it is always better to register integrated designs in India so that the ownership rights are not infringed.

Semiconductor integrated circuits layout design Act 2000 includes all the rules and regulations laid down under the TRIPS agreement and the decision of this agreement was made by the members of the World Trade Organization. Since this concept is new in India, and it is still in its initial stages, strict protection laws must be established in order to protect the rights of the owner who have registered their integrated design following the rules laid down by the government of India.

INTRODUCTION

A variety in a plant would refer to a specific identity of a plant or a species of whose botanical name or the genus name and characteristics is different from other varieties. As per certain rules, plant variety does come under the intellectual property rights of an individual. Since plant variety is specific in nature, just as a trademark or copyright which is for a brand, similarly the plant variety is an intellectual property for the breeder or the farmer who has nurtured the specific plant variety with human efforts and such rights can also be infringed by a third party or any other person.

The registrations of plant variety are essential as it will help in improving the yields of farmers and promote an effective planting method which shall indirectly be helpful in encouraging new developments in plant variety which may benefit the society at large. India has given consent to the Trade related aspects of Intellectual Property Rights (TRIPS) agreement, after which the Protection of Plant Varieties Farmers Rights Act 2000 came into force. The main objective of the Act is to enact a complete system for protecting a special variety of plant and to encourage individuals and farmers to develop and nurture new varieties of plants.

The variety of plant which already exists in the wild parts cannot be registered under the Act. However, the plant variety that has been cultivated and improved through human efforts and interventions shall be considered as a right candidate for registration under the Act.

Therefore, the rules and regulations governed with regards to plant variety registration and with regards to its applications are taken care of by the Protection of Plant Varieties Farmers Rights Act 2000.

CRITERIA FOR REGISTRATION

  1. Novel plant: At the date of registering the plant variety, the variety that is going to be registered must not have been sold inside or outside of India, also, the variety should not have been abandoned previously.
  2. Distinct feature: Only if the variety to be registered consists of a different feature which other plants do not have shall be considered for registration. No one should have any common knowledge about the plant variety at the time of registration.
  3. Uniformity: A variety is said to be uniform even when the plant variety is subject to certain variations. But the prerequisite is that the characteristics of the plant shall be the same.
  4. Stable: A plant variety is said to be stable only if the special and the most important characteristics remains unchanged even after the propagation cycle is complete.

TYPES OF PLANT VARIETIES

  1. New variety: A plant variety which is completely new and all the criteria are fulfilled then such plant can be taken up for registration.
  2. Extant variety: In cases where the plant variety is available in India which is notified under s. 5 of the Seeds Act, 1966or farmers' variety, or a variety about which there is common knowledge, or any other variety which is in public domain.
  3. Farmer variety: The plant variety which has been cultivated and evolved in the farmer’s field can also be registered.

WHO CAN APPLY FOR REGISTRATIONS

  1. An individual can apply for registration for plant variety if he/she claims to be the breeder of the plant variety.
  2. Any individual who has been assigned the plant variety.
  3. Any group of farmers or such other individuals claiming to be the breeder of the plant variety that has to be registered.
  4. The person who is authorized to make registrations on behalf of the farmers.
  5. Any agricultural institution that claims to be the breeder of the plant variety.

REQUIREMENTS FOR REGISTERING PLANT VARIETY

  1. Details of the applicant: The name, address, nationality, and other particulars of the applicant shall be mentioned clearly, and the address of the serving agent should also be specified in the application form.
  2. Denomination: The denomination or the special feature of the plant variety that is going to be registered under the Act.
  3. Affidavit: The affidavit should mention that the plant variety that is going to be registered does have any destructive characteristics or technology.
  4. Details of the plant variety: Full and complete features of the plant variety and specifications of the geographical location of the plant variety as well as that of the farmer who has cultivated it. For example- Village name, the name of the institution and such other details which may be required for registrations.
  5. Lawful material: It must also state that the material used for cultivating the plant variety has been duly acquired by the due process of law and not through an illegal method.
  6. Description: All specifications regarding the novelty, distinct nature of the plant variety, uniformity, and stability should be correctly mentioned.            

PROCEDURE FOR REGISTRATION

  1. Form of application: The applications that shall be received for registrations of the plant variety shall be made under section 14 of the Act provided that all the requirements for registrations are fulfilled as per the prescribed rules and regulations of the Act. Every application shall be filed at the office of the registrar.
  2. Application through succession or assignment: In cases where the variety of plant has been registered through a successor or the person who has been assigned on behalf of the applicant, at the time of registration, they must provide proper proof for the same. The evidence that the right has been granted to them to submit the application on behalf of someone.
  3. Conducting tests: After the application for registration has been received by the registrar the quality of the seed shall be tested to check and evaluate the variety of seed and whether it has met with the standards of registration. The applicant has to pay the prescribed amount of fees as per the Act for conducting the quality test of the seed of the plant variety.
  4. Application accepted: After receiving the application and conducting the required test, if the registrar feels that all requirements and standards have been met, then subject to those conditions the registrar may accept or reject the application or shall make changes in the application. Acceptation or rejection of application depends from case to case.
  5. Advertising: Once, the application has been accepted and is not subject to any conditions, then the application that has been registered shall be advertised, and within 3 months from the date of advertisement, one can file an opposition against the plant variety that has been registered along with the prescribed fee that is to be submitted along with the notice where the reasons for the opposition should be mentioned.
  6. Considering the ground for opposition: It is the decision of the registrar whether he/she considers the opposition agreements or not. Depending on this, the registrar may accept or reject the application of the opposition.
  7. Issuing of registration certificate: After the registration is complete and has been accepted fully then the registrar shall issue a registration certificate to the applicant, which shall be sealed with the official seal of the registrar and also a copy from the authority for benefit sharing to such government authority.

DURATION

  • The time period of registrations of trees and vines is 18 years.
  • For other crops which are registered under the Act shall be 15 years from the date on which the application is registered.
  • For extent varieties of plant,15 years from the date on which notification is given by the central government as per section 5 of the Seeds Act 1966.

CONCLUSION

The plant variety and protection of farmer’s rights 2000 is a unique legislation and the law provides legal protection to the farmers or the individual who have registered under this Act.

Registering a plant variety in India is a lengthy process, what makes it even more difficult is the lack of knowledge about the registration of this Intellectual Property. It is always better to appoint a legal person to carry any activity related to the registration. Laws keep modifying from time to time and to cope with this change, a lawyer can work better as he/she would possess more knowledge and would understand such matters in a better way.

A copyright is a legal right given to the original creators of work. The rights are given to the creators in order to protect their work from being exploited, copied, or misused. It’s a type of asset which can be transferred from one person to another. Mere ideas are not granted a copyright. But the ideas which can be expressed are given copyright rights. The copyright in India is governed through the Copyright Act, 1957.

 

This process to register one’s copyright includes the submission and verificationof documents. At times, there are chances that some objections may come up during the process.

Copyright objections are raised by the registrar or the examiner during the copyright registration process.  It is not a direct denial of the application but a way through which the examiner seeks explanations and clarifications by the applicant for such errors. Objections are raised at the initial stages of Copyright Registration.

REASONS FOR OBJECTION

One of the main reasons for Copyright Objection is:

  • Identical work
  • the copyright of the work already exist

The main agenda of giving copyright to a specific work is to safeguard or protect the uniqueness of the work from getting copied or misused. Similarly, if a person demands for copyright of a work already published or created, contradicts the very reason of getting copyright protection. Therefore in such cases, the examiner or the registrar makes sure that the work is unique and that there is no duplicity in the work. 

REPLY TO COPYRIGHT OBJECTION

Once the application is filed, the applicant has to wait for a time period of 30 days. In case if there are objections raised by the examiner or the registrar, then it becomes a legal obligation of the applicant to rectify or clarify the errors. Each and every complaint/issuesmust be appropriatelyreplied. This is done through a “Reply to the CR (copyright) Objection”. This reply to the CR is a formal legal letter which is filled by the applicant. There is no prescribed form of drafting this reply. This reply becomes an opportunity to give clarifications for all the objections.

Certain documents are required to file a Reply to CR Objection:

  1. Documentary proof is a must. For e.g. An affidavit
  2. Power of attorney which should be signed by the applicant
  3. A copy of the examination report which gets uploaded on the portal.

The above three documents are necessary to file a reply to the CR objection.

ADVANTAGES OF FILING A REPLY TO OBJECTION

  1. It proves to be a second chance for the applicant to save his application from getting rejected. Receiving a timely response from the applicant saves the copyright application.
  2. Once the creator gets copyright protection, he/she has legal protection for his/her creative work; hence one should reply to the objection even though he may think that he will not receive protection.
  3. Filing a reply from the applicant would be considered as he/she has got no other infringement issues at the time of the registration.

As soon as a reply is sent to the examiner/registrar, the applicant needs to wait for further response. The examiner may approve the application and enter the same into the Copyright Journal, or he/she may reject it.

CONCLUSION

Registering of a Copyright in India is a lengthy process. To get the process right, it becomes essential to follow each and every step correctly. The best way to get this process done is to appoint a legal Person. They have better knowledge and understanding of the same. When you appoint a lawyer, the burden shifts on totheauthorized person, and he/she becomes liable to help you with the registration and also to draft replies and maintain the time frame of objections, if any. Hence, while registering copyright, make sure it isyour own work so that fewer objections are raised.

INTRODUCTION

Design according to the Design Act means a particular shape, size, pattern, any figure in any color, including 2D or 3D figures, but not a trademark. The Design Act 2000 governs and looks after the nuances with regards to design registrations and oppositions.

DESIGN OPPOSITION

In India, many cases of infringement occur where the registered design owner can claim damages for the infringement of rights. Thus, registration of designs is one of the important dutiesof theregistrar, and sometimes, oppositions may be raised for the same before granting registration (Pre-grant registration) or after granting registration (Post-grant registration).

  • After the design registration process is completed, it is published in the patent office journal in the last column, and after it has been published in the journal it is open for public inspection, and any individual can approach the registrar with certain objections against the registered design.
  • An individual or the interested party may raise objections against the registration of the design due to the following reasons:
  1. If the design has already been registered in India
  2. If the design has been published in any part of India before the application had been filed by the current applicant.
  3. If the design to be registered is not new or is not an innovative idea.
  4. If the design is not registerable under the design act 2000.

Rules laid down under section 29 of the Designs Act 2000

  1. If the definition of design is not in accordance with what is mentioned under section 2 (d) of the designs act 2000.
  2. If the registrar is not satisfied by any of the particulars of the design, he/she will send a notice to the applicant for justification and clarification.
  3. After they receive the clarification, the registrar and their representatives shall scrutinize the statement thoroughly and they also have to check whether the statements are in compliance with rules and regulations and according to the law.
  4. Once the formalities are completed the registrar grants the design registration and after such registration, the applicant can accept the certificate of registration within 3 months after which it is published in the official journal. However, if the opposing party is still not satisfied, then they can appeal this decision.

CANCELLATION PROCEDURE

STEP 1: If an application is made for cancellation of design registration in India, it must be accompanied with proper evidence as to why it should be cancelled and the personal interest of the applicant must also be stated.

STEP 2: If the petition is filed, then the same should be published in the registration of design journal as well.

STEP 3: In this step, the controller of design shall send the copy of the petition that is filed along with the official statement of the applicant with the proper evidence to the design owner.

STEP 4: The registered owner shall then reply to the same, within the prescribed time with counter statements and with counter evidences for the same.

STEP 5:It is the duty of the registered design owner to reply to the notice within 1 month from the date on which the same has been received by the owner of the design.

STEP 6: Accordingly, if the applicant is not satisfied with the response, they may extend the petition by paying the requisite fee.

STEP 7: Thus, after hearing both the parties, the controller can decide whether to grant the registration certificate or not.

CONCLUSION

There is no specific concept regarding opposition to design registration in India. However, one’s design registration can get cancelled if the rules and regulations of the Design Act 2000 are not followed. It is always advisable to take help of a legal person to register the designs in such a manner, that one doesn’t have to face the complications of the cancellation procedure.

Once the design is opposed for cancellation, the never-ending process begins. It becomes time-consuming, as well as the monetary investment increases. Therefore, hiring a professional to carry out the process makes the task easier and effective.

INTRODUCTION

A Geographical Indication is a sign which is used on special products that have specific characteristics and have a different quality and place of origin. Special rights are given to those products which enable them to use the special indication which may prevent the third party from copying the product that does not have such standards specific to an origin. The rules and regulations of Geographical Indications are governed by the Geographical Indications of Goods (registrations and protection) Act 1999.

 

 

OPPOSITION TO GEOGRAPHICAL INDICATIONS

When the application for registration of the Geographical Indication has been accepted by the registrar with or without subject to any limitations, as soon as it is granted it is sent for publishing in the advertisement as it is prescribed under the Geographical Indications of goods (registrations and protection) act 1999 under section 13 of the act.

PRE-GRANT OPPOSITION

The steps which are to be followed for registering an opposition complaint are explained in section 14 of the act:

Step1: After the Geographical Indication is advertised as per the procedure mentioned under the Act, if there is any opposition raised against the registration then that individual or the company can inform the registrar within 3 months from the date of advertisement and can raise opposition by paying the requisite amount of fees.

Step2:  After which the individual may draft notice in the prescribed format and must state the reasons for the same.

Step3: The registrar shall send a copy of the notice to the applicant who has applied for the Geographical Indication to be registered.

Step4: Within two months from the date of receipt, a counter statement to rebut the opposition may be made by the other party.

Step5: The registrar shall send a copy of the counter-statement to the individual making such an opposition.

Step6: If the opposition wishes to submit any proof of evidence in respect to that particular matter, then they can do so within the stipulated time period.

Step 7: The registrar may give an opportunity to both the parties or anyone of the party to be heard in the case if the registrar finds it appropriate to do so.

Step8: After hearing both the parties and looking into the evidence brought in by the opposition party, the registrar may decide whether to grant registration or not.

Step 9: If the person giving the notice of opposition does not work or reside in India, then such an opposition party and their evidence shall not be taken into consideration.

Step10: In cases where the registrar feels that there is a need to do correct an error in the application, then the registrar can do so by using his powers.

ADDITIONAL INFORMATION

  • The Geographical Indication of Goods (registrations and protection) Act 1999 states that when the applicant has followed the rules and regulations laid down under the Act, the application shall be passed by the registrar and if all the requirements are fulfilled, and the opposition notice has been answered or has not been raised by any other individual against the Geographical Indications registrations under the Act, registration will be granted.
  • The opposition has been satisfactorily been answered to the question raised by him or her.
  • After the process is fully complete, the registrar shall inform the central government to register the product under India’s Geographical Indications lists.
  • Once the product is registered, the applicant shall receive a certificate with the seal of the registrar under the Geographical Indications in the prescribed format.
  • If the registration of the applicant are not completed within twelve months, then the applicant must assume that the application has been rejected by the registrar if it is not rejected then notice shall be sent to the applicant for the same.
  • The registrar may make certain amendments in the register or may make changes in the certificate, which has come for some misprinting.

The rules and regulations regarding the opposition of the Geographical Indications registrations are explained from section 13 to section 16 of the Act.

CONCLUSION

India has been known for importing and exporting good quality products. There are many products which get qualified under Geographical Indication legal protection as a special product. The exploitation of the Geographical Indications started only after the Geographical Indications of goods (registrations and protection) act 1999 was passed and came into force in India.

There is a further need for GI laws in India to implement strict rules that can be imposed in cases of opposition and rules for pre and post registrations and other related matters regarding the Geographical Indication registrations.

INTEGRATED DESIGN

Integrated design is a holistic approach that brings different specimens of computer designs together which are usually considered separate. Semiconductor integrated circuit is one such example. The parts are all different, but when all these parts come together, they form an integrated design.

The semiconductor integrated circuits are governed by the Semiconductor Integrated CircuitsLayout Designs Act, 2000. Registration of Semiconductor integrated circuit is not mandatory in India. During the process of registration, at times, certain oppositions are raised by a third party. If these oppositions are not cleared, then the registration may be rejected by the registrar.

REASONS FOR OPPOSITION

  • Designs which lack originality
  • Those designs which have already been registered in India
  • Designs which are too obvious in nature and are not unique or different from others
  • Invalid Integrated designs

PROCESS FOR OPPOSITION

STEP 1: When an application is submitted for the registration of an integrated design; any third party can file an opposition. The opposition can be filed within the time period of 3 months (as prescribed under section 30 of the Act)from the date of registration. To file an opposition, the registrar will ask for a particular amount. The application submitted by the opposing party should have all the relevant details.

STEP 2: Once the application is filed by the opposing party, the registrar then informs the applicant about the opposition. The registrar sends a copy of the opposition application to the person who has applied for the design registration. It then becomes the duty of the applicant to send a document with the proofs and counter statements. This reply should be sent within two months from the date of opposition received. The reply should be written in such a way that it acts in favour of the applicant.

STEP 3:As soon as the registrar receives a counter application, a copy of the same has to be submitted to the opposing party.

STEP 4: The registrar upon receiving proper evidence from both the parties, can hear both the parties, and take the final decision.

STEP 5: A person opposing the application or a person filing an application for registration may need to give security if he/she resides out of India or works out of India. The money will be held for safety purposes.

STEP 6: If the registrar finds it fit; he/she may reject the registration of that particular design. But if the registrar is of the opinion that the opposition is weak, then the registrar would reject the opposition’s application.

CONCLUSION

Registering of Integrated designs is not mandatory in India. However, when a person registers such designs, it gives them financial security as well as a status in the market. Registering of Integrated designs is a lengthy process.

Due to its complexity, it is always better if done with the help of a lawyer. The oppositions raised should be handled carefully as these oppositions can result in the rejection of applications. Applications once rejected are not easily restored. Hiring someone professional can lead to easy settlement of such cases.

Patents are exclusive Intellectual Property rights given to the inventor of a novel product or process. It’s a legal right assigned to the inventor so that he/she can protect his/her invention from selling, copying, importing or using. The inventor plays the role of monopoly in the market. The patents in India are governed under “The Indian Patent Act,1970.”

 

 

To get a patent in India, one has to go through the Patent registration process. While this process goes on, at times there are oppositions raised by the third party. These oppositions need to be replied to and rectified by the applicant.

PATENT OPPOSITIONS

Patent oppositions are generally divided into two parts:

 

 

PRE-GRANT OPPOSITION

Pre-Grant opposition misfiled under the Provisions provided under section 25(1) of the Patent Amendment Act 2005. As the name suggests, it is an opposition which is filed before the grant of the Patent to the applicant. Oppositions are the questions raised by the third party (government or any other person), to check the validity of the Patent.

Pre-Grant Oppositions can be made on the grounds listed under section 25(1) of the Patent Amendment Act, 2005.

  1. The product is too obvious that lacks innovation.
  2. The subject matter which is -non-patentable.
  3. Source of information is not known
  4. A patent application filed after the time period is over.  
  5. Prior Public knowledge

POST-GRANT OPPOSITION

Post-Grant opposition isfiled under the Provisions provided in section 25(2) of the Patent Amendment Act 2005. As the name suggests, it is an opposition which is filed after the grant of the Patent to the applicant. Oppositions are the questions raised by the third party (government or any other person), to check the validity of the Patent.

Post-Grant Oppositions can be made on the grounds listed under section 25(2) of the Patent Amendment Act, 2005.

  1. Insufficient description of the invention.
  2. If it is related to any traditional knowledge of any community, anywhere in the world.
  3. Obtaining the invention by wrongful means
  4. False information given by the applicant.
  5. Prior Publication

PROCESS FOR PRE-GRANT OPPOSITION

STEP 1: The patent application is filed by the inventor. An opposition can be submitted by a third party within six months after the application has been registered.

STEP 2: The opposing party needs to make a representation on any of the grounds mentioned above.

STEP 3: The representation should contain the required statement, a request for hearing and evidence in support of the representation.

STEP 4: Controller will consider the application only when a request for examination of the patent application has been filed.

STEP 5: Once the examination request is made, the controller sends a copy of the representation to the applicant.

STEP 6: The applicant can reply to the notification through statement or evidence within three months from the date of the notice.

STEP 7: Based on the evidence of the applicant, it is the decision of the controller to either refuse the patent or to ask the applicant to make the necessary changes.

The process of Pre-Grant opposition works as a shield to confirm the validity of patent applications before granting the patents.

PROCESS FOR POST-GRANT OPPOSITION

STEP 1: In this case, as soon as the opposition is made by the third party within 12 months of the grant of the patent, the patentee (owner of a patent) is to be informed about the same.

STEP 2: The third party is requested to submit evidence regarding the same.

STEP 3: Similarly, once the patentee is notified about the opposition, he/she is requested to submit documents or evidences supporting their claim within 12 months.

STEP 4: Another chance is provided to the opponent to submit evidences within one month from the date, the patentee submits the documents.

STEP 5: Once the evidences from both the parties are received, a date of hearing is fixed up

STEP6: The hearing is conducted by the Opposition board constituted by the controller and comprising of three other members and a chairman.

STEP 7: Based on the evidences, a recommendation is passed by the board.

STEP 8: Notice of the hearing is given to the parties 10 days prior to the hearing. A fee has to be paid for the same.

STEP 9: The final hearing includes the evidences and recommendations from the opposition board. It then concludes whether the patent granted would be revoked or the patentee would be asked to make necessary changes.

Post-Grant opposition did not prevail in India before the year 2005. It is after the 2005 amendment that Post-Grant opposition came into the picture.

CONCLUSION

The patent registration process is a bit complex due to the involvement of Pre&Post Grant oppositions. To tackle these oppositions in a better way, it is always advised to take the help of a legal person.

Lawyers possess better knowledge about the same. Pre and Post grant oppositions can be easily avoided by the applicants if they make sure the details and evidences they provide are real and hold value in the eyes of law. Once a patent has been granted, the patentee should protect his/her invention by keeping himself/herself updated about all the new provisions and law related to the Patents Act.

INTRODUCTION

India is one of the first countries who have enacted legislation to give formal rights to the farmers of this country. And thus, protection of Plant Variety Farmer’s Rights Act 2000 came into force. Under this act, various rights are given to improve the financial status of the farmers and to encourage them in every way possible. Some of the rights which are given by the Indian law to the farmers are listed below:

  1. Right on seeds
  2. Right to register one’s plant variety
  3. Right to reward and recognition
  4. Right to benefit-sharing
  5. Right to compensation for losses incurred by farmers
  6. Right to get to know about the traditional plant variety
  7. Rights to procure special seeds
  8. Right to free services: The government of India has made provisions for the farmers of India wherein the services under the act shall begiven free of cost to the farmers who wish to register their plant variety under this act.

PROCEDURE OF RAISING OPPOSITION

Opposition can be raised by two parties. One can be made by the registrar and the other can be madeby a third party due to the application submitted by the applicant, for objecting the plant variety which is going to be registered.

  1. The opposition raised by the registrar

It is compulsory that every applicant who wants to register their plant variety must register and pay for the test wherein the department which looks into the registrations shall test and check the quality of the seed or the plant variety, and whether it meets the standard of registrations which is specified under the regulations of the Act and if it does not meet the standard requirements then oppositions can be raised by the registrar or a third party with regards to the process of registration of the plant variety.

  1. The opposition raised by an individual after the publication of advertisement

Any individual can raise opposition against the registration by filing an application to the registrar within three months from the date of the advertisement after paying the prescribed fees at the registrar’s office on any of the grounds which are mentioned in sub-section (2) section 21 of the Act. Few grounds that are listed are as follows-

  1. Opposition can be raised if the plant variety cannot be registered under the Act.
  2. If the certification is issued which may not be in favour of public interest.
  3. If the plant variety that is going to be registered will have a huge negative impact on the environment.

GROUNDS OF OPPOSITION

It is the duty of the registrar to investigate the grounds of opposition and the reasons why the registration is being opposed. And it’s upon the decision of the registrar whether to accept or reject the opposition, which is laid down by the individual who is opposing the registration of a plant variety.

The registrar shall send the notice of opposition to the applicant, and it shall be the duty of the applicant to answer and provide the registrar with the counter-statement which shall be sent to the opposition (other party) within two months from the date when the notice has been received by the applicant. If the applicant fails to submit the response within 2 months, the application shall stand cancelled.

CONCLUSION

Since the Plant Variety Act has been recently come into force, not many know about the hiccups that arise during the registration process. To avoid plant variety opposition and the delay in registration, it is advisable to register it with the help of a legal person.

Trademarks are symbols, design, numerals,devices, label often used by businesses to distinguish themselves from other businesses. It works as a brand name for them. The trademarks are governed through the Indian Trademark Act,1999.

 For example, the tick sign of Nike is a renowned trademark which differentiates their product from other similar brands and can’t be used by someone else.

For a business to have a logo,it requires them to go through a Trademark Registration Process. This process includes documentation and verification. In the course of this process, manya times there are few objections raised as to the logo or words used.

TRADEMARK OBJECTION

Trademark objection occurs at the initial stages of the trademark registration. It is not a direct denial ofthe application. However, once the objection is raised, the registration process stops, and the registrar gives achance to the applicant to rectify or explain the error. 

REASONS FOR OBJECTIONS

Similar kind of trademarks already exist

Sometimes there is a similar kind of trademarks created. This confuses the buyer, and this may lead the buyer to buy the wrong product. To avoid such mix-ups, it becomes essential that the registrar objects such trademarks.

  1. Deceptive marks

Such marks are those which purposely create confusion or mislead the customers. They are deceptively similar logos for two different products. This not only affects the customer but it also degrades the brand loyalty of the product.

  1. Obscene words as a part of trademarks

Offensive words or images may lead to the refusal or rise of objections.

  1. Lacks distinctiveness

When this happens, the consumer is not able to differentiate between products and services, leading to chaos and turmoil.

  1. False specifications

It becomes essential for the trademark form to be correctly filled. If a trademark form misses any vital document, then an objection may be raised. For example, if a person is registering the trademark through a trademark attorney or agent, then it becomes necessary to attach the TM-48 form with it.This will include,incorrect details like name of the applicant, name of the trademark or any other wrong feature of the application. Being legal ,everything has to be verified and legally correct.

GROUNDS ON WHICH TRADEMARK CAN BE REFUSED:

Absolute grounds of refusal: Section 9 of the Act governs relative grounds of refusalRelative grounds of refusal: Section 11 of the Act governs relative grounds of refusal

When a trademark registration is taking place in India, at times, there are objections raised by the third party or by the registrar. Theseobjections need to be rectified as early as possible so that in future, the chances of errors reduce.

SECTION 9 of theAct

Generally, under section 9, objections are made when there is a doubt in the quality of the goods. The registrar considers these trademarks to be too descriptive and elaborative. Such trademarks are objected as they do not distinguish themselves from the other products.

To overcome section 9 of the trademark act, it’s important for the applicant to show that the product is distinctivefrom the other products. For this purpose, it is essential to show an affidavit along withevidence that provesthe product to be distinctive.

SECTION 11 of the Act

Under section 11 of the Trademarks Act, objections are made by the registrar/examiner on the basis of the similarity between the trademarks. The objections are raised so that the buyers are not confused about the product. In this case, the registrar/examiner issues a computer-generated search report with the list of conflicting marks.

Such a situation can be only handled if the applicant makes sure that the trademark is changed. For changing the trademark, the business has to toadopt a new symbol or design for the product, which is not similar in looks.

PROCESS OF OBJECTION

STEP 1: The online Trademark Registration in India reviews the application filed by the applicant. It ensures that it is complete in all the aspects.

STEP 2: The application is reviewed under the provisions prescribed by the Trademarks Act 1999 and the Draft Trademark manual issued by the trademark registry. The person who studies this application is known as the EXAMINER.

STEP 3: Once the application is reviewed, the examiner may pass the application after which the application is considered to be “Accepted and Advertised”. This application is given under the Trademark Journal. However, in most cases, the application gets rejected,and  objections are raised.

STEP 4: The examiner also looks into the database of the Trademark Applications received to the registry, and the examiner looks intoany identical trademark that already exists in the market. The same is communicated to the applicant through publishing an “examination report”.

STEP 5: The examination report contains the observations and findings of the examiner. This report is issued to the applicant to seek clarifications or explanations on his/her behalf. The applicant can give clarification through a written document, or a hearing can be conducted.

STEP 6: After the examination report is issued by the registry, the applicant can view and download the report, which should be replied by the applicant or through his/her legal heir.

IF THE APPLICATION IS REJECTED

Once the examination report is issued, the online status of the applicant shows to be “objected” which means “Awaiting Reply to Examination Report.”

The reply to the examination report needs to be replied towithin 30 days of time. If the applicant fails to do so, then the application may be rejected resulting in losing the claim over the trademark. Therefore, it becomes imperative that the applicant keeps checking the status of his/her application.

STEPS TO RESPONSD TO AN EXAMINATION REPORT

STEP 1: A response has to be formed by the legal heir or by the applicant. This response has to be prepared after a proper analysis of the examination report. This is to be done within 30 days of time.

STEP 2: The response shall be drafted in such a way that it supports the trademark. It clarifies why the logo is unique and complies with the trademark act.

STEP 3: If there is no format given by the examiner, the applicant has all the right to clarify things in his/her own way.

If the response is satisfactory, then the examiner will publish the same in the Trade Journal so that further process can take place which is giving the trademark to a business.

If the response is not satisfactory, then the examiner may ask the applicant to sort the disputes orally in a hearing before the trademark registrar.

At times, the trademark application is not OBJECTED but OPPOSED. The below table explains the difference between an Objected Trademark Application and Opposed Trademark Application.

OBJECTED VS OPPOSED

Objected Trademark Application Opposed Trademark Application.

Here the application is objected by the examiner or the registrar.

In this case, the application is opposed by the third party who is interested in the Trademark.

After the objection is raised, there is a time limit of 30 days given to the applicant for explaining or rectifying the errors.

Once the application is opposed, the applicant gets 60 days to make sure his/her application is corrected.

An objection is made before the Trademark goes for the Advertisement.

Opposed Trademark comes in the picture after the advertisement of the trademark takes place.

CONCLUSION

Registering of trademark and then rectifying the objections raised is a huge and complicated process.  It is always advised to take help of a legal person so that fewer errors take place. Taking the help of a legal person will make sure the things are done in a systematic manner as they are highly experienced and possess adequate knowledge about the same. The lawyers will make sure that they fillthe trademark registration form bykeeping in mind all the recent laws and provisions relating to it.

Trademark is a mark that is capable of distinguishing the goods or services in connection with which it is used in the course of trade. This is in respect of the origin, material, mode of manufacture of goods or performance of service quality, accuracy or other characteristics of goods or services in use.

FUNCTIONS OF A TRADEMARK

Trademarkis a mark certified or registered that protects the product from cloning/counterfeiting or manufacturing a pirated product with a defect especially to harm the reputation of the company to which the product is originally associated with. Except for the protection provided by the Trademark Act, 1999 for the registered trademark, it also plays the following functions for the product or the company:

  1. Any product to which a specific trademark is applied is the promise made by the company of its quality. Every trademark is equivalent to the efforts made by the company for maintaining the quality of the product in the market.
  1. Advertisement is the prima facie function played by the trademark as the logo of the firm helps to define the product or the services provided by the company. Any new services launched by an existing company or any new services launched by a new company, it becomes essential to promote their services in a way to attract more clients or customers, a trendy logo or signboard will help to reach the desired results.
  1. Trademark is a part of Intellectual Property Rights and is formulated as an intangible asset in the balance sheet of the company. It has the power to become a strong asset over a period of time. Trademark can collectively be also termed as the goodwill of the firm that can be sold at money’s worth. Any person buying the Trademark of the company or agreeing to use the trademark under an agreement can use such reputation to run his business and expand its working amicably.

Jaguar and Land Rover gave TATA group a setup market for its business by entering into the business of luxury cars. It became one of the most profit-making segments in the automobile industry. The price for the logos of the companies have skyrocketed; it goes from a few million to 100s of billions of dollars and multiples.          

A Trademark distinguishes the companies and their products and services in the market, permitting to serve as a parameter to know the company’s net worth and development. It helps the owners and the stakeholders to put in more efforts to improve the quality and to consistently serve their customers in a better way. People with technical knowledge call it is ‘goodwill’ built over the period, but such goodwill is judged by the trademark (logo) of the company.

REGISTERATION OF A TRADEMARK

Any person who intends to use a trademark can apply for its registration. That person can be a natural person, a legal entity or a holding company.

A mandatory procedure regarding filing application for registration of Trademark is to be followed such organized procedure help’s entity or any other person to apply for trademark registration without any ambiguity in a uniform way. Following is the procedure to file for registration:

  1. A normal procedure of filling a form is a basic and mandatory process of application that includes filling of Name and Addresses any other blanks to be filled for authentication of details and supporting document as mentioned. Further scrutiny and authentication are done by notary authority and legalization which are costly and time-consuming
  2. The signed is filed for registration which is needed to be added and seen in application this play the important part in the application. If the sign should be easy and understandable, everyday language should be used to sign. If it is intended that signed should be coloured that colour should be mentioned and a specimen in colour signed should be shown.
  3. The applicant also has to have a list of good and service to be registered for which application is made for trademark registration. Some countries have classes of goods under which the goodscan be registered, and each class works as a category under which there are different goods to be registered. An important treaty for international practices was signed by the collegiums including 34 members inclusive of USA know as NICE Agreement concerning the classification of Goods and Services.
  4. A specific amount of fees is to be paid, as mentioned in the Trademark Act 1999.

Any application made by an applicant is subject to provision of the authorities and can be refused on any ground mentioned under the Act. If any authority refuses an application on the stated grounds such authority needs to provide a reason for such refusal. Such applicant has the opportunity of being heard in the most unbiased way possible. If any application is rejected, and the applicant thinks it to be the wrong decision, can file an appeal against the authority to administrative appeal board or the appealable court depending on the legal system.

There’s no specific duration of trademark’s validity as it can be renewed as and when required (every 10 years), but as for administrative procedure, the time limit is mentioned in trademark laws of different countries. One of the many reasons forthe specified time limit, authorities can charge renewal fees, that plays a vital role in generating income from funds.

The applicant should publish every required document and substantial/ material proof of information relevant to the validity of trademark application and duration coupled with rights and liabilities in the Official Gazette to form conclusive evidence against the world at large.

IMPORTANCE OF TRADEMARK IN A START-UP

Trademark plays as an important intangible asset for any Startup as it enhances valuation and competitiveness. Startups with limited resources can thrive and compete against established players only through innovation and protection of its intellectual property rights.

Although avoided by many startups during the initial stages for it being an additional expense, trademarks are extremely critical for startups as it becomes important for them to have a separate face in the market to be associated with, once the needle starts to point towards the profit mark. Specifically, for virtual businesses who do not own an office address that stands out, the brand value resides in the look and feel of their online presence (i.e. website), and name of the company, making trademarks extremely important for such businesses.

India is on course to become one of the leading hubs for innovation, research and development, because of which even the intellectual property (IP) industry is showing huge potential for growth.

In this age of technology, people are more inclined towards inventing and innovating new products. However, these products are in a chaotic situation of being copied or plagiarized for the benefit of someone else at the cost of the original inventor. Hence, it is always better to register and accord protection under the Patent Act. It allows a person to declare a right on that specific invention against the world.

Definition: A Patent is a form of Intellectual Property Right that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling the public disclosure of the invention.

The History of patent law in India can be traced back to 1911 when the Patent and Design Act was enacted, however, it was repealed and the present Patents Act, 1970 came into place to amend and consolidate the earlier patent laws.

Emerging techs such as the Internet of Things (IoT), Artificial Intelligence (AI), and Cyber Security accounted for 50 % of the tech patents filed in the year 2017 to 2018.

As stated in the report updated by NASSCOM ‘Emerging Technologies: Leading the next wave of IP Creation for India', Indian firms filed over 4,600 patents between 2015 and 2018.

PROCEDURE FOR REGISTRATION UNDER THE PATENT ACT, 1970

  1. Checking the patentability of the invention by performing the search

It is essential for a person to check whether the invention or any innovation he/she intends to register under the patent is patentable, i.e. the Patent Act, 1970 allows registering of such new product.

  1. Drafting of a patent application

A person intending to register the product under the Patent Act, 1970 has to file an application filling all the mandatory documents required in the form and mentioning any other details as per the law for such registration.

  1. Filing the patent application

A person who drafted the application form to comply with rules and regulation made by law in this behalf have to file such application at a registered office situated in New Delhi, Kolkata, Chennai, Mumbai or Ahmedabad.

  1. Publication of patent application

After due process of filing the patent application, the authorities will publish the same in the patent journal after the period of 18 months, any person who wants to publish the patent in a patent journal before time than mentioned the person needs to file form 9.

  1. Examining the patent application

Any person who files for patent registration has to apply for examination under form 18. Once the application is submitted, it goes to the patent office, where the application is scrutinized and checked whether the compliance is done as per the rules and regulation mentioned in the Patent Act, 1970. Objection if any, are to be considered and settled as per the officer.

  1. Grant of Patent

Once the application is submitted and concern/ objections raised are resolved, the authority will grant the patent.

WHY YOU NEED PATENT PROTECTION?

A lot of people have turned themselves into inventing and innovating new products and technology as to the advancement and satisfying growing needs. Lots of money and time is invested in producing something new. So to protect such effort from being copied by someone else, patent registration is a solution accepted by the world at large.

  1. A patent gives you the right to protect your work from being copied, plagiarized or being stolen by anyone in the world at large.
  2. Any person competing with patentee’s product has to maintain some sort of difference in his/her product because of patent
  3. A patent, as mentioned in the accounting term as an intangible asset may provide revenue to the person who provides such patent to be used by any other person by the consent of the patentee.
  4.  Only person inventing and registering can use his/ her product with all means.

COMPULSORY LICENSE:

A person after receiving the grant for patent have to register for the compulsory license, such person who after the period of three years of such grant can apply for the compulsory license on the basis of the following condition:

  1. The patentee is of the opinion that people using the patented invention isn’t satisfied yet.
  2. The patented invention is not available for the world at large at an affordable price.
  3. The patentee is of the opinion that patented information is not available in the Indian Territory.

A person is not required to be a licensee already for making an application for the license under this head, and he should not be stopped from alleging the above conditions.

Every application should set out the nature of the applicant’s interest, and all other

particulars are mentioned by the law in this behalf.

A patent officer once confirmed with a validity of the above conditions mentioned by the applicant as mentioned above and is of the opinion that licensing lies in the paramount interest of public may issue / grant license to the applicant.

A controller may order the patentee to grant the license to an applicant applying for a compulsory license under section 88 of the Act.

Following conditions need to be taken in consideration while granting the license:

  1. The time which has elapsed since the sealing of patent, nature of invention and measures taken by the licensee or patentee for making full use of the invention.
  2. The ability of patentee or licensee to make the full use of the invention in the paramount interest of the public.
  3. The ability of the applicant to fund the project and put such an invention to use for the public if such application is been granted.

PATENT AGENT

A Patent Agent is any person acting as the legal representative on behalf of the client dealing with all the matter related to patent at regional and national office of the patent.

REVOCATION OF A PATENT

Any act committed by any person in violation of the provision of Patent Act, 1970 can result in Controller revoking the patent privilege provided by the patent act on the following conditions:

  1. Any application required for granting the compulsory license not been complied can lead to revocation of license.
  2. Every application to revocation should specify the reason for such revocation, and the opportunity of being heard should be given.
  3. If after the reasonable hearing and opportunities, the Controller is satisfied and the condition on the basis of which a grant has been provided is not met, then such person can order the revocation of the patent.
  4. Every application under this situation should be concluded and decided within the period of one year of the application date.

CONCLUSION

A Patent provides a robust protection to the patent holder by giving him a right to stop his competitors from producing the same product and ripe benefits of the same. Developing a new product often requires a huge amount of time and investment. A patent will allow you to exploit your invention commercially.

As a patent stops or eliminates competition it helps to generate more revenue to the supplier by being the exclusive supplier of those particular goods or services. Patent protection provides you with an opportunity to secure your investment and cover the costs involved in the development of the product.

Copyright protection is an essential pillar of any society wanting to create a safe and right full legal framework that encourages entrepreneurship by extending robust legal protection to industrialistsfor proprietary, intangible assets. Understanding the importance of copyright laws can deter thieves from attempting to ride on the success of others' creations, and is must for all businesses using images, audio works or written materials.

Copyright protects a business from the market of counterfeit products and copycat brands. Copyrighted brand images, audio works and written materials can allow a company to identify itself strongly and immediately in a variety of situations. Copyright protection does not last forever;hence, copyright law encourages competition, and hence monopoly is not retained.

Copyright is a form of intellectual property that is granted under the Indian law to the creators of original works including but not limited to computer programs, tables, databases and other compilations expressed in words, schemes, codes or in any other form, including a machine-readable medium, dramatic, musical and artistic works, cinematographic films and sound recordings.  Copyright shall only protectthe expressions of ideas and not the ideas themselves.

One of the essential features of copyright is that under copyright law, registration is not a mandatory requirement. Registration shall only provide as a rule of evidence in the court of law, i.e. the registration can be used as evidence when such right is disputed in a Court.

Copyright usually means that only the creator has the right to make copies of his or her actions or prevents others from making copies. The central idea behind such protection is the premise that innovations require incentives. Copyright recognises this need and gives it a legal sanction. Copyright protects all of them.

The Copyright Act, 1957 gives the rights, procedure, authorities established and relief modes under copyrights. It lays down a definition of copyright and states the types of work preserved under this law, i.e. literary works, dramatic works, artistic works, musical works, cinematograph films, and sound recordings.

COPYRIGHT REGISTRATION PROCESS

Copyright application is to be filed with the Copyright Registrar, mentioning the particulars of the work along with the concerned forms.

  • These forms should be signed by the applicant, and the application must be submitted by the Advocate, the copyright registration application along with the forms is to be submitted to the Registrar of Copyrights electronically.
  • There is a waiting period of thirty days within which the Examiner shall review the application for potential discrepancies and objections.
  • If discrepancies are found, a discrepancy notice will be issued and the same needs to comply within thirty days from the date of issuance of the notice.
  • Once the discrepancy has been removed and there are no other discrepancies or objections with the application, the copyright shall be deemed registered, and the Copyright Office shall issue the Extracts of Register of Copyrights (ROC),i.e. the Registration Certificate in favour of the applicant.

JURISDICTION OF COURT FOR MATTERS

(1) Any lawsuit or other civil proceeding arising under this Chapter about the violation of the copyright in any work or the breach of any other right conferred by this Act shall be instituted in the district court has the authority.

(2) For sub-section (1), a “district court having authority” shall, notwithstanding anything contained in the CPC, 1908 (5 of 1908), or any other law being in force, includes a district court within the local limits of whose authority, at the time of the initiation of the lawsuit or other proceedings, where there are more persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

WHY DOES YOUR BUSINESS NEED COPYRIGHT?

People usually think of copyright law to be a luxury or instead that it extends only to movies, songs, books, lyrics, photographs, paintings,  and other such similar works,in reality, it is much broader than that.

When your business hires an employee / freelancer to create new work for the company, such as the brochure or your website, the purpose of copyright helps to clarify who has ownership of that work. Hence, the importance of copyright is difficult to overstate.

In the business context, copyright includes diverse items such as legal documents, emails, letters, company articles, computer programs and databases, spreadsheets, scientific models, business models, drawings, architects plans, business plans and strategies, photographs, and graphic designs.

Companies are spending tremendous resources, both time and money, in developing and producing training, marketing materials, business plans and hence they would  want to prevent competitors from being able to copy their materials. Copyright law provides this weapon to combat such infringement by a competing business.

  • A copyright registration makes it easier to transfer or assign rights in your work. This is critical in some industries if you intend to license or sell your work for royalties or other similar fees. 
  • As per the Law, when someone infringes your work, you are entitled mainly for two types of damages, the actual damage along with profits of the infringer.
  • Proof of these damages are highly subjective and shall depend on the laws of each state. This makes pursuing a legal remedy difficult if there is no registration.
  • Business leaders should ensure that their company's employment contracts and service agreements contain an IP clause, providing the assignment to the company of all copyright in creative work, in the broadest sense possible.

COPYRIGHT IN STARTUPS

Emerging start-up companies involved in trading or rendering services through web channels must invest theright amount in developing a website which showcases their products/services in an innovative and creative style.  However, just developing is not enough; the start-ups who are creating innovative computer software and the program would not want any other competitor to use their creative input or programming for their business.

Start-ups must evaluate whether their work is prone to infringement and how that work requires protection. After assessing these questions, the start-up can decide whether it needs copyright protection or not.

The Copyright registration will keep away the threat of commercial misuse of their work for a substantial period of time.

Trademarks are developed by brands so that consumers can distinguish between two similar products. In India, trademarks are regulated under the Indian Trademark Act, 1999. For example, the ‘tick’ sign on the shoes of Nike. The tick sign acts asa trademark for the brand Nike and this tick sign can’t be used by another company. If a third party wants to use this tick sign for his/her company, then he/she can do the needful by the process of Licensing.

 

Trademark Licensing

Sometimes, the owner of a trademark assigns his trademark rights to a third party. Licensing means assigning the rights of a trademark owner to the other party for a particular period of time. However “Licensing” and “Assignment” are two different terms.

 

Licensing of Trademark

Assignment of Trademark

Licensing is a time-bound process. The rights under licensing are given for a particular period of time.

Assignment of Trademark is allotting of rights to the third party permanently.

In a license agreement, the registrar may or may not keep the record in the Trademark registry.

In an assignment agreement, it is mandatory for the registrar to keep a record in the Trademark registry.

In such an agreement, only a certain amount of rights are given to the third party.

In such an agreement, generally, all the rights are assigned to the third party.

 

Types of Trademark Licensing

There are mainly 3 types of Trademark Licensing. They are:-

  • Exclusive License

This type of licensing refers to when some of the rights of the Trademark owner have been transferred to athird party. In return, the trademark holder gets the royalty amount to enter into such an agreement. All the profits or losses, incurred from the use of the trademark are supposed to be dealt with by the Licensee. However, under exclusive rights, there are restrictions on product type and location. This depends upon the type of agreement between the licensor and licensee.

  • Non-exclusive License

Under this, the licensor can license the rights of the trademark to one or more individual or organizations. As the name suggests, this license is not exclusive to one licensee, it can be transferred to more than one person. The transfer is for a specific amount of time. Even the licensor himself can get access to the use of the trademark.

  • Solo License

In this kind of licensing only the Licensor and Licensee can have access to the rights. The rights can’t be transferred to any other third party.

 

Trademark Licensing Agreement

A trademark license agreement is a contract between the licensor and licensee, to agree on certain terms and conditions for a specific amount of consideration. This agreement is a legal document which is enforceable in thecourt of law.

Generally, a trademark licensing agreement includes:

  1. Legal names of the licensor and Licensee
  2. Type of Trademark which is being licensed
  3. Type of Licensing occurring (Solo, exclusive, non-exclusive)
  4. Business structures of  both the parties
  5. Terms and conditions of payment to the Licensor. It should also include whether this payment isa one-time lump sum amount or the licensor will receive payment in multiple tranches.
  6. Products and services related to the Trademark.
  7. Factors of production-related to the trademark products.
  8. The geographical extent of the Trademark license
  9. Important dates of the licensing agreement such as Issuing date and the expiry date.
  10. Quality provisions of the product. Uniformity among the products has to be adopted by the licensee. He/she should be able to maintain the same kind of quality.

To improve the agreement for both the parties, there are more provisions which can be added. They are:

  1. Breach of duty by any party should be remedied in a specific time period.
  2. Penalties imposed if the breach of duty takes place.
  3. A clause which denies the transfer of such rights to any other party or an organization.
  4. Formalities to be completed by both the parties when the period of licensing ends.
  5. License renewal clause.
  6. The time period for which the license is being granted to the third party.
  7. The license won’t be sold nationally/internationally.

 

Advantages of Trademark Licensing

  • Business improvement

Licensing of the trademark with a third party can benefit from creating a network and partnership in the market. Giving your trademark to a brand (sports brand) for an event can lead to better marketing and to create a brand value in the outside world.

  • Reach new areas

Business can be expanded by using different methods of distribution channels.

  • Delegate Responsibility

When you license the trademark, the product which would then be produced is not your responsibility. This way, you delegate your work with minimum risks.

  • Brand Recognition

Licensing gives new visibility to the brand. A whole fresh look is given to the trademark. This attracts the consumer, which in turn, leads to a better brand position in the market.

 

Procedure to License a Trademark

 

Section 49 of the Indian Trademark Act, 1999 describes a proper procedure for licensing a trademark in India.

The below steps can be followed to license a trademark in India:

STEP 1: Firstly, in the office of Trademark registrar, the TM-28 form is to be filled. It is a form which is made for the licensing of Trademarks.

STEP 2: The form needs to be registered within 6 months from the date of registration.

STEP 3: Once the form is submitted, it’s the duty of the registrar to check all the relevant details. The form should contain the name of the licensor and licensee, the time period for which the rights are being assigned, and also the terms and conditions of the agreement.

STEP 4: The registrar can now publish the registration in the Trademark Journal.

STEP 5: After the publication, if there are no objections raised by the third party, then the license of the trademark is granted.

 

General points to be kept in mind while Licensing

  • Terms and conditions should be mentioned appropriately.
  • Correctly identify the trademark to be licensed.
  • Discuss the royalty that means the payment terms thoroughly.
  • Valid proofs to be attached of both the parties involved.
  • Understand the scope of trademark transfer
  • Make sure both the parties sign the agreement with a legal person involved.
  • Both the parties should have witnesses
  • Notary of the document to be done.
  • Check the other considerations involved in the agreement
  • Due diligence to be conducted by both the parties.

 

Conclusion

Licensing of trademark rights is a simple but essential process. It is always advisable to hire a professional to carry out such transfer of rights. At times, there are objections raised by the third party. If a legal person is involved, the process becomes smoother. Laws related to such acts keeps on varying from time to time. Therefore, hiring a lawyer is a must to go through such transfers.

 

A Patent is a form of Intellectual Property that gives a legal right to the owner of a discovery/invention from preventingothers from selling, copying, using, and importing for a limited period of time. Registration of Patents is granted under the Indian Patent Act, 1970.

 

Patent license

 

Patent licensing is a way of assigning your Patent rights to any other person or a third party so that he/she can use those Patent rights in the market to make money. Licensing of rights can be done either wholly or partially. Generally, licensing of rights is done for a limited period of time against a pre-decided royalty amount.

 

It’s an agreement between two parties where one party grants the rights and the other party gets the rights.However, people generally confuse License with the term Assignment. Below is the difference between these terms.

PATENT LICENSING

PATENT ASSIGNMENT

In a patent license, the owner of the patent only transfers his/her rights for a limited time, the ownership is retained with the owner.

 

In a patent assignment, the owner of the copyright transfers the ownership of the copyright.

 

The owner of the patent changes temporarily.

The owner of the patent changes permanently.

Information about the new owner is not available to the general Public

Information about the new owner is accessible to the general public.

 

The owner can sell the patent to someone else in the later stage.

The owner loses all the control over his Patent, and he cannot claim a right in future.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Types of patent licenses

 

There are eight types of Patent Licensing:

 

  • Exclusive License

No person or business other than the named licensee can use the Patent. Exclusive license allows only one licensee to make and use the patent for commercial purposes for the term of the license.

  • Non-exclusive License

The rights can be granted to more than one party and every party will have some control(as mentioned in the agreement) over the patent. The amount of control is decided by the owner.

  • Sub Licenses

Sub-Licenses are licenses where the patent holder grant the rights of the patent to different organizations for the making of the product.  Sublicense can be said to be granting of certain licensed rights on a product to a third party by the licensee.However, the profits of such product will depend upon the agreement between the patent holder and the third party.

  • Cross-Licensing

A cross-licensing is between the two parties where they agree to grant patent licenses to each other. Such agreementsinvolve exchange of essential patented knowledge between two parties who are seeking to further their own progresses.

  • Voluntary Licensing

They act for the goodwill of society. In this type of licensing, at the will of the owner, he/she may give exclusive or non-exclusive rights to a third party.  These rights may even include the right to import, export, and also the right to decide the price of the products. This will all depend upon the agreement between the parties.

  • Compulsory Licensing

A compulsory license is a complicated process. In this kind of licensing, the will of the patent holder is not considered. The government gives authorization to a third party to access the patent. However, there are strict norms to grant a Compulsory licensing as the rights can be transferred only in emergency situations or a health crisis.The provisionsregarding compulsory licenses are provided in the Indian Patents Act, 1970 and in the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement at the International level. Although such licensing goes against the patent holder, there are certain terms and conditions that need to be fulfilled for the grant of Compulsory licensing.

 

Terms and conditions for compulsory licensing

 

The terms and conditions for a compulsory licensing are given under section 84-92 of Indian Patent Act, 1970.

As per section 84, a third party may be granted compulsory license after the expiration of the patent which is 3 years, due to the following reasons :-

  • The invention or discovery is not worked in the territory of India.
  • The public can’t afford the patent invention at the prevailing prices.
  • Reasonable requirements of the public have not been satisfied with the patent invented.

As soon as this condition gets fulfilled, a compulsory license may be granted. A compulsory license is also granted under:

  • Section 92 A- for imports, under special circumstances.
  • Section 92 A- In case of national emergency, extreme urgency.
  • Section 92 A (1) - In a country where there is insufficient manufacture power in the health sector.

India’s first case of granting compulsory license was in the year 2012. It was granted to an Indian company called “Natco Pharma” for the generic production of Bayer Corporation’s Nexavar. It was granted by the Indian Patent office. This case fulfilled all the conditions laid down under section 84 of the Indian Patents Act, 1970.

 

Advantages of patent licensing

 

  • Reducing Patent Infringement

When someone infringes your patent, you can sue the party infringing your patent. Sueingcan get expensive and won't deliver the results you desire. The better option would be to license the patent. Licensing will give the third party the rights to access your patent and the patent holder can make desirable profits.

  • Limited amount of risk

To maintain the patents is also an expensive and risky process. A lot of risks are associated with the manufacturing of patents. The license allows you to transfer such risks.

  • Global Investment

When you license a patent, the patent holder gets a huge amount of royalty which can be further used for making more inventions at a global level. Thus, licensing gives a chance to make a name in the global market.

  • Limited amount of time Period

You don’t give your rights forever. You can assign them for a particular period of time, and when this time period expires, you can take your rights back.

 

General points to be kept in mindwhile licensing

 

  • Licensing should be done after a proper licensing agreement is formed. It should be duly signed by both parties. Licensing your rights without an agreement may lead to Patent Infringement.
  • Make sure you ask enough royalty for your patent. At times, the patent holder doesn’t make huge profits from the grant of rights. According to norms the royalty range can vary from 2% to 20% of the total net revenue.
  • While licensing your patent to a third party, investigate about the party. If your license is worth more, choose an appropriate third party.
  • Put performance obligations on the licensee. When performance pressure is put on the licensee, he/she works in the favour of the patent holder. Through this, the patent holder can make huge profits from the licensee.
  • Taking proper advantage of the Grant Clause. In an agreement, the Grant Clause is about the rights you grant and the rights you don’t grant. This clause needs to be thoroughly studied and applied.
  • Filing a patent license is a complicated process. Not hiring a legal person for the same can lead to irrevisable mistakes in the future. Therefore, hiring a Patent attorney is necessary. When patent rights are granted to the third party, the patent holder should make sure he/she is given insurance coverage as the patent holder can be held liable for anything happening during the period of licensing.

 

Procedure for filing a patent license

 

STEP 1: Identifying potential Licensees is the first step required for filing a licensee. The patent holder needs to find someone who is worth the Patent Rights. The third party can either be an individual or a multinational company.

STEP 2: Make an agreement which will consider all the clauses related to the grant of license. This agreement should be duly signed by both parties.

STEP 3: This step includes the process of working with the third party to agree on the terms and conditions of the agreement.

STEP 4:Sign a patent license agreement after proper due diligence. This agreement will include clauses such as time period, royalties, what kind of rights etc.

 

Conclusion

 

In India, registration of a patent is a huge and long  process. Once the registration is completed, the patent is granted to the person who applied for such registration. After the patent is granted the person can then apply for the transfer of patent rights. This whole process leads to a lot of time investment and money investment. Therefore, it becomes necessary for both the parties that they hire someone professional to carry out this process. A legal person is experienced and also has a greater knowledge of all the recent amendments and laws related to the same. Hence, to avoid complications in the future, make sure to take the help of a legal person.

A copyright is a right given to the owner or creator of photographs, paintings and illustrations, books, essays or software, graphical notations, choreographed performances or recitals, sound recording, videos and even entire movies.

 

Copyright license

A license is a partial transfer of copyright from one person to another. This transfer is done with certain restrictions on the usage and time period of such copyright. A license of copyright can be granted for present use as well as for future use. A licensee can use the copyrighted work without any claim of ‘unauthorized use’ or’ infringement being brought by the owner of the copyright against the licensee.

 

The terms “Assignment” and “License”have similar usage but are not exactly the same.

 

COPYRIGHT LICENSING

COPYRIGHT  ASSIGNMENT

In a copyright license, the owner of the patent only transfers his/her rights for a limited time and not the ownership.

 

In a copyright assignment, the owner of the copyright transfers the entire ownership of the copyright.

 

The owner of the copyright changes temporarily.

The owner of the copyright changes permanently.

Information about the new owner is not available to the general Public

Information about the new owner is accessible to the general public.

 

If future demands, then in such a scenario, the owner can sell the copyright to someone else.

In this scenario, the owner loses all the control over his copyright, and he can’t claim anything in future.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Types of licenses

 

  • Voluntary License: Voluntary license is covered under section 30 of the Indian Copyright Act. The owner of the copyright is ready to transfer his/her rights to some another person. The copyright can be of a creation that is already there in the market or something that is yet to be created. The license of future work will only come into force when the work comes into existence. 
  • Compulsory License: Such licenses are covered undersection 31 of the Indian Copyright Act. The term compulsory is used to depict the Statutory Licenses, which gives thepermission to do an act without the prior knowledge to the copyright owner.
  • Exclusive License: In this type of license, it is agreed that no other person except the licensee can access the rights related to the copyright. Even the owner is barred from using his creation commercially andto further intervene with the licensee’s decisions
  • Non-exclusive License: As the name suggests, there are no special exclusive rights given to assignee. The real owner of the creation doesn’t lose his control over the creation. Upon his discretion, the owner can also grant the same license to some other party.

 

Requirements of licensing agreement

 

There are few requirements that need to be followed for a License agreement

  • All the conditions related to the agreement like termination, revision, or extension of the license must be laid out clearly.
  • Amount to be paid by the licensee to the owner of the copyright.
  • Identification of work and the types of rights which have been grant by the owner to the licensee.
  • Duration of the license which is granted by the owner to the licensee must be mentioned.

 

Procedure to grant a copyright license

 

STEP 1: The most essential step is to first identify the work that a person needs to transfer. For example, the owner may wish to copyright all the songs written by him or just one song written by him. Accurately identifying the copyright work is important.

STEP 2: Being a copyright owner, exclusive rights are granted. Such rights include the power to sell, distribute, reproduce, and communicate the work to the public. Among all these, certain rights can be chosen by the owner which he/she will grant to the licensee. With the increase in the technological development, the owner can also permit themedium  through which he/she wants the work to be used.

STEP 3: While making the agreement, you can also limit the duration of the license. The owner can either restrict it to a certain number of months or years, or he/she can use the option of timely renewal of the agreement. The important part is if the owner doesn’t mention anything in the contract, then the time considered is 5 years as per the Act.

STEP 4: The owner can allow the work to be used anywhere in the world. But if the owner fails to mention a particular country, then by default, the territorial extent is considered as India.

STEP 5: This step talks about the money the owner gets when he/she grants the copyright rights. Such compensation is known as “royalty”.

STEP 6: The extension, revision and termination of the agreement are very important. It is the duty of the owner to decide when he/she would like to terminate or extend the agreement. For example, the owner might like to terminate the agreement as soon as the licensee is bankrupt or insolvent. However, what remains intact is, if the licensee doesn’t use his/her rights under the period of 1 year, from the date of the agreement, the rights will be automatically lapsed.

STEP 7:Make multiple copies of the agreement which should be signed by both the parties involved.

 

Validity of a license

  • If in the agreement, the time period is not mentioned, it is to be considered as 5 years. Automatically after 5 years, the agreement would terminate and would not be enforced in the eyes of the law.
  • If there are disputes raised between the Licensor and Licensee, then the aggrieved party can file a complaint to the copyright board, and then the necessary actions would be taken by the copyright board depending upon the situation.
  • Order of revocation cannot be passed before the expiry of agreement, until and unless the terms of the agreement are too harsh for the licensee.
  • At times, there is more than one owner of the copyright. It is known as joint ownership of copyrights. If one of the owners, transfers such rights to any other person without the consent of the co-owner, then the co-owner can sue that joint owner as well as the licensee.

 

Conclusion

Copyright licensing is very important in India. It leads to more innovations and growth in the country. However, the process of copyright licensing is a complex one. At times, in dire need to save the money, people don’t appoint proper legal help to look into such matters. A legal person is experienced and professional. Agreements like this should not be finalized without the help of a lawyer. Terms and conditions of such agreement keep on changing, and it becomes difficult to be updated about all the new laws and provisions.