10 August 2015
Copyright deals with the rights of intellectual creators in their creation. The copyright law deals with the particular forms of creativity, concerned primarily with mass communication. The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such. Why Copyright?? Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirements of encouraging the same. Meaning of Copyright: Section 14 of the act defines copyright as: 1. In case of literary, dramatic or musical work: a) Reproducing the work in any material form which includes storing of it in any medium by electronic means, b) Issuing copies of the work to the public which are not already in circulation, c) Performing the work in public or communicating it to the public, d) Making any cinematograph film or sound recording in the respect of work, e) Making any translation or adaptation of the work. 2. In case of a computer programme: a) To do any of the acts specified in respect of a literary, dramatic or musical works, b) To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. 3. In the case of artistic works: a) To reproduce the work in any material from including storing of it in any medium by electronic or other means, depiction in three dimensions of a two dimensional work and depiction in two dimensions of a three dimensional work, b) Communicating the work to the public, c) Issuing copies of work to the public which are not already in existence, d) Including work in any cinematograph films, e) Making adaptation of the work, and to do any of the above acts in relation to an adaptation of the work. 4. In the case of cinematograph film: a) To make a copy of the film, including photograph of any image forming part thereof or storing of it in any medium by electronic means or otherwise. b) To sell or give on commercial rental or offer for sale or for such rental, any copy of the film, c) To communicate the film to the public. 5. In the case of sound recording: a) To make any other sound recording embodying it “including storing of it in any medium by electronic or other means, b) To sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording, c) To communicate the sound recording to the public. Who is a Author: Works Author Literary or dramatic work Creator of work Musical Work Composer Cinematograph Film Producer Sound Recording Producer Photograph Photographer Computer Generated Work Person who causes the work to be created Term of Copyright: Literary, dramatic, musical or artistic works enjoy protection for the life time of the author plus 60 years beyond i.e. 60 years after his death. In case of joint authorship which implies collaboration of two or more authors in the production of work, the term of copyright is to be construed as a reference to the author who dies at last. In case of copyright of posthumous, anonymous and pseudonymous works, cinematograph films, sound recordings, works of Government, public undertakings and international organization, the term of protection is 60 years from the beginning of the calendar year next following the year in the work has been first published. The act has given broadcasting reproduction right to every broadcaster which is valid for 25 years from the beginning of the calendar year next following the year in the broadcast has been done. Copyright Board: Section 11 of the act provides for the establishment of the Copyright Board and empowers Central Government to constitute the same consisting of Chairman and 2 other members. It has many important functions, such as: Settlement of disputes, Grating of licenses, etc Copyright Licenses: Chapter VI containing Sections 30-32B deals with Licenses. I. Licenses by Owners of Copyright: Section 30 of the act empowers the owner of the copyright in any existing work or the prospective owner of the copyright in any future work to grant any interest in the right by license in writing by him or by his duly authorized agent. However, in the case of a license relating to copyright in any future work, the license shall take effect only when the work comes into existence. II. Compulsory License withheld from public: Section 31 provides that of at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made top the Copyright Board that the owner of copyright in the work has refused to republish or allow the reproduction of the work or has refused to allow the performance in public of the work and by reason of such refusal the work is withheld from the public or has refused to allow communication to the public by broadcast of such work or recording, on terms which the complainant considers reasonable, the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyright to grant to the complainant the license to republish the work. III. Statutory License for broadcasting of literary and musical work and sound recording: Section 31D provides that any broadcasting organization desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the fulfillment of prescribed conditions. IV. Termination of License: Section 32B of the act deals with termination of licenses and provides that if any time after the granting of a license, the owner of the copyright in the work or any person authorized by him publishes a translation of such work in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for the translation of works of the same standard on the same or similar subject, the license so granted shall be terminated. V. Other Licenses can be by way of License in unpublished or published works, benefit of disabled, etc
10 August 2015
Trademark Registration: The need of an ERA (Procedure of Registration of Trade Mark, Its Benefit and Applicability) Today is the era of competition. In such competitive world, the only way to sell the goods in the market is the Brand Value or the Brand Name of the Product or the Company. Many a times, it has been seen among various business houses that the two businessman using the same name or the same logo or the same brand. In such condition, the only loss is to the customer who buys the product of that company which is just a fake one using the name/ logo/ brand of the reputed company. In such a condition, it becomes difficult for the reputed company to keep the faith and trust of the public over their product. To ensure that no loss should be encountered by the Real owner, the concept of TRADE MARK came into existence. The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules there under. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. The main function of the Registry is to register a trademark which qualifies for registration under the Act and Rules. A trade mark (popularly known as brand name is a visual symbol which may be a word, signature, name, device, label, numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. Any organization that is planning its entry into the market should definitely keep IPR in mind. Because the benefits will not just make you richer but can far outweigh the other tangible benefits you get from your business. Legal requirements for registration of trademark:- It should be capable of distinguishing the goods or services of one undertaking from those of others. It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person. Procedure of Registration of Trademark of product label/ company name/ logo/ trade name etc. Any person claiming to be the proprietor of a trade mark used or proposed to be used by him may apply in writing in prescribed manner for registration. The application should contain the trade mark, the goods/services, name and address of applicant and agent (if any) with power of attorney, period of use of the mark and signature. The application should be in English or Hindi. It should be filed at the appropriate office. Following is the described procedure for applying of the Trademark: 1. Search and decide for the Name, Device, logo, Label intended to be applied as Trademark. It may be any name of the product/ goods/ or of the company in whose name the trade mark can be applied. Be noted that the name/ o the label etc you are going to apply for should be unique one and should not match with the already existing product/ trade name otherwise the name applied by the applicant will get rejected and whole fees deposited by the applicant will go waste. For this the applicant should check on the site of Trade Mark about the class of product whether any name/ label, he intends to apply is existing or not. Trademark classes: There are totally 45 classes listed in Fourth Schedule of the Trademarks Act. Each class provides a list of goods and services and a trademark that is intended to be used for any goods or services has to be registered under the class that lists such goods or services. Registration of a trademark in one class gives rights to the owner to prevent others from using the same or similar trademark with any goods or services relating to entries under that class. Registration of trademark in one class does not prohibit others to use or register the mark for entries in other classes. If any goods or services are not specified in any of the classes, the Registrar will have to discretion to determine the class under which a trademark used for such goods or services can be registered. 2. Filing an Application: Any person claiming to be the proprietor of the trademark used or proposed to be used by him can apply. The application may be made in the name of an individual, partners of a firm, a Corporation, any Government Department, a Trust or joint applicants. The proposal to use the trademark may be by a Company to be formed or by an individual. A Trademark application has to be made on TM1 in triplicate along with five additional representations of the Trademark for registration of single mark in single class by paying a stipulated fees as may described by the Department from time to time. In order to apply for more than one class, a Single application can be made on TM51 in triplicate along with five additional representations by paying prescribed fee per class. To apply for more than one trademark (Series of Marks) for same class of goods, a single application can be made on TM8 in triplicate along with five additional representations by paying the prescribed fee per mark per class. An agent/ advocate can file application on behalf of his client who empowers him through a power of attorney (Form TM-48) on Rs.100 Stamp Paper. Documents Required are: 1. The self attested Identity Proof and Address proof of the Applicant i.e. Proprietor/ Partners/ Directors 2. Proof of business establishment 3. The logo/ label to be registered 4. Letter head of the firm along with stamp and sign Examination The application is examined within one month from the date of application to check if it meets the requirements of the Trademarks Act 1999. Requirements provided under Section 9 & 11 are as follows: The trademark, 1. Should be distinctive; 2. Should not be descriptive; 3. Should not be generic; 4. Should not be deceptive; 5. Should not hurt the religious sentiments of any class or section of the citizens of India; 6. Should not contain scandalous or obscene matter; 7. Should not contain marks prohibited by Emblems and names (prevention of improper use) Act, 1950; 8. Should not be the shape of goods which results from the nature of the goods; 9. Should not be identical with an earlier trademark; 10. Should not be prevented by virtue of any law and in particular the law of passing off; and 11. Should not be a well known trademark. If the trademark meets all requirements of the Act, the trademark will be accepted for registration. If there are any objections, the registry will send an examination report stating the reasons for objection. The response to the objections can be filed within one month from the date of receipt of the examination report. The response can be sent by way of an affidavit and a hearing can be requested if necessary. Publication If the trademark is accepted for registration, the details of the application will be advertised in the Official Journal of trademarks within six months from the date of acceptance of application. Opposition On advertisement, any person who believes that a trademark should not be registered may oppose its registration within three months from the advertisement date stating the grounds of opposition. The opposition process is important as it prevents others from acquiring a trademark in respect of an already existing brand name. For company managers, strategists and advisors, it is a useful legal tool to avoid risk of brand dilution, and hence an aspect of legal liability management. All the requirements of the Trademark Registration are valid grounds for opposition. If no opposition is filed against the application, or if opposition is unsuccessful, the trademark will be registered. Note that a trademark can be revoked even after it is granted, if somebody successfully challenges it on the ground that it is confusingly similar to an already registered trademark. Registration Trademarks Registry of India will then send a Certificate of Registration and record the details of the trademark in the Register of trademarks. The trademark will be registered from the date of filing of application, not from the date it was examined or accepted. FORMS USED FOR MAJOR TRADEMARK TRANSACTIONS The First Schedule to the Trademark Rules, 2002 prescribes the different procedural forms and necessary amounts of fees required for all trademark-related transactions, of which some examples have been given below: For filing new applications- There are prescribed forms depending on the nature of Application such as Form TM-1, TM-2, TM-3, TM-8, TM-51 etc. To file a Notice of Opposition to oppose an application published in the Trade Marks Journal- (FormTM-5). For Renewal of a Regd. Trademark-(Form TM-12). Surcharge for belated renewal – (Form -10) Restoration of removed mark – (Form TM-13) Application for rectification of a registered trade mark – (Form TM-26) Legal Certificate – (Form TM-46) Official search request for trademark – (Form TM-54) Preliminary advice of the Registrar as to the registrability of a mark – (Form TM-55). Copyright search request and issuance of certificate – (Form TM-60) Renewal of Trade Mark: The term of protection of a trademark is unlimited. However, it has to be renewed every ten years from the date of filing to keep it alive. Non-use of the trademark for a period of five years would result in loss of the trademark. However, non-usage of a registered trademark for a continuous period of five years is a valid ground for cancellation of registration of such trademark at the behest of any aggrieved party. Conclusion: Registration of a trademark is not compulsory. However, registered trademarks have additional benefits when compared to unregistered trademarks. Registration of trademarks allows the Owner of the trademarks to file infringement suits for violation of his rights whereas the unregistered user has to search remedies in common law.
10 August 2015
A study on Patent infringement Law in India
A Patent confers the exclusive right on the Patentee to make, distribute or sell the invention in India. This exclusive right is for 20 years. After 20 years, that invention becomes a public Domain. An infringement would be when any of three rights is violated. A Patentee may assign/ license all or some of these rights. The exercise of the rights so transferred in favors of the assignee or the licensee by the assignor or the licensor would not amount to infringement of the Patents. In the case of product Patents, rights of the Patentees are infringed by any one who makes or supplies that substance commercially. In the case of a process Patent, the use of such a method or process in India by anyone other than the Patentee amounts to infringement. Whether the act of a person other than the Patentee amounts to infringement or not would depend upon. i) The extent of the monopoly right conferred by the Patent which is interpreted from the specification and claims contained in the application of the claims would not amount to infringement. ii) Whether he is infringing any of the monopoly rights in the patentee to make, or sell the invention. What can amount to Infringement? i) The colorable imitation of an invention. ii) Immaterial variation in the invention. iii) Mechanical equivalents. iv) Taking essential features of the Invention. All the above acts often overlap each other when an infringement of a Patent or process occurs. Infringement by mechanical equivalents would occur when he uses mere substitutes for those features so as to get the same result for the same purpose as obtained by the Patentee. Action of infringement: Whenever the monopoly rights of the Patentee are violated, the rights are secured again by the Act through judicial Intervention. The Patentee has to Institute a suit for infringement. The relief’s which may be awarded in such a suit are- 1) Interrogatory / interim injunction. 2) Damages or account of profits. 3) Permanent injunction. Where a suit is to be instituted? A suit for infringement shall not be instituted in any court inferior to a District court having jurisdiction to try the suit. In appropriate cases where the High Court has original jurisdiction to try the suit shall be instituted in the High Court. When an action for infringement has been instituted in a District court and the defendants make a counter claim for revocation of the Patents the suit is transferred to the High Court for decision because High Court has the jurisdiction to try cases of revocation. The procedure followed in conducting a suit for infringement is governed by the provisions of code of civil procedure. Period of Limitation: The period of limitation for instituting a suit for Patent infringement is there years from the date of infringement. When a Suit can be instituted: A suit for infringement can be instituted only after the patent has been sealed when a specification has been accepted and published i.e. during the period when opposition has been called and is being decided, the applicants cannot institute a suit for infringement, but damages sustained due to the infringement committed during the period, i.e. between the date of publication of acceptance of complete specification and the date of damages but not suit for infringement. When the term of the Patent has expired and infringement occurred during the term of the Patent, a suit can be instituted during the term or even after the expiry of the term. In the case of patent had lapsed and was subsequently restored, committed between the date on which Patent ceased to have effect and the date of publication of application for restoration. When a patent was obtained wrongfully by a person and later granted to the true and first inventor, no suit for infringement can be instituted for any infringement occurring before the period of such grant to the true and first inventor. The person who institutes a suit, s not obliged to give a notice to the infringer before instituting a suit, court will issue a notice. Who is entitled to Sue: Only a person who has a right in the Patent can institute a suit for infringement. The following persons are entitled to sue: – i) Patentee ii) The exclusive licensee, if license is registered. iii) A compulsory licensee, when iv) Assignee. CONCLUSION: There has been a dramatic change in the Patent Law system across the world since its’ origin and embodiment in law system across the world since its’ origin and embodiment in law centuries ago. Not only the form of patent has become more refined; but also that the entire process of registration of patents has witnessed a commendable change. As a result of the recent move towards globalization, the procedure for obtaining patents has also shifted towards centralized systems which aim at saving time and related costs. At the same time, with the emerging areas of new patents are more onerous and tremendously accelerated the evolution and growth of patent law (both nationally and internationally) and has led to international initiatives towards forming an international patent convention which support centralized application for all nations in the world. This shall certainly save time and costs and lead to a utopian regime for registration and grant of patent rights, its protection and Lawful exploitation.
CAclubindia
