Severity: Warning
Message: fopen(/var/lib/php/sessions/ci_session89e36de5f90eef1979f662637e374fb54535517b): failed to open stream: No space left on device
Filename: drivers/Session_files_driver.php
Line Number: 156
Backtrace:
File: /var/www/business.legatoapp.com/application/third_party/MX/Loader.php
Line: 173
Function: _ci_load_library
File: /var/www/business.legatoapp.com/application/third_party/MX/Loader.php
Line: 192
Function: library
File: /var/www/business.legatoapp.com/application/third_party/MX/Loader.php
Line: 153
Function: libraries
File: /var/www/business.legatoapp.com/application/third_party/MX/Loader.php
Line: 65
Function: initialize
File: /var/www/business.legatoapp.com/application/controllers/Home.php
Line: 7
Function: __construct
File: /var/www/business.legatoapp.com/index.php
Line: 315
Function: require_once
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:-
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.
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.
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:
To improve the agreement for both the parties, there are more provisions which can be added. They are:
Advantages of Trademark Licensing
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.
Business can be expanded by using different methods of distribution channels.
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.
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
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.
DEFINITION
TYPES OF 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.
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.
It is a type of assignment where trademark rights and the market value which is associated with the product is also transferred.
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:
GENERAL ERRORS
ADVANTAGES OF REGISTERING AN ASSIGNMENT
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
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
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.
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.
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.
*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
GENERAL ERRORS
ADVANTAGES OF REGISTERING A PATENT ASSIGNMENT
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
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
Works that are not eligible for a future copyright
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:
POINTS TO NOTE
Few things to be kept in mind while you transfer copyright rights:
GENERAL ERRORS
ADVANTAGES OF REGISTERING AN COPYRIGHT ASSIGNMENT
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
WORKS THAT CAN BE REGISTERED
Only those copyrights can be registered which are mentioned under section 13 of copyrights rules 1957 :
COSTS INVOLVED IN COPYRIGHT REGISTRATION
PROCEDURE FOR COPYRIGHT REGISTRATIONS
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
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:
BENEFITS OF REGISTERATION
STEPS FOR REGISTERATION
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
INVENTIONS THAT CANNOT BE PATENTED
Section 3D of the Indian Patent Act 1970, states that the following inventions 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:
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
PROCEDURE OF DESIGN REGISTRATIONS
ADVANTAGES OF DESIGN REGISTRATIONS IN INDIA
CANCELLATION OF DESIGN REGISTRATIONS IN INDIA
The design registrations can be cancelled on the following grounds:
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
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:
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 5: Arguments 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
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:
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
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
TYPES OF PLANT VARIETIES
WHO CAN APPLY FOR REGISTRATIONS
REQUIREMENTS FOR REGISTERING PLANT VARIETY
PROCEDURE FOR REGISTRATION
DURATION
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:
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:
The above three documents are necessary to file a reply to the CR objection.
ADVANTAGES OF FILING A REPLY TO OBJECTION
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).
Rules laid down under section 29 of the Designs Act 2000
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 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
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.
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.
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:
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.
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.
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-
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.
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.
Offensive words or images may lead to the refusal or rise of objections.
When this happens, the consumer is not able to differentiate between products and services, leading to chaos and turmoil.
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:
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:
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
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.
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.
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.
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.
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.
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.
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:
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:
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:
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.
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.
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:-
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.
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.
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:
To improve the agreement for both the parties, there are more provisions which can be added. They are:
Advantages of Trademark Licensing
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.
Business can be expanded by using different methods of distribution channels.
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.
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
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:
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.
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 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.
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.
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.
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 :-
As soon as this condition gets fulfilled, a compulsory license may be granted. A compulsory license is also granted under:
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
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.
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.
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.
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
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
Requirements of licensing agreement
There are few requirements that need to be followed for a License agreement
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
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.