FAQ'S
ON TRADEMARKS
FAQ'S ON
PATENTS
FAQ'S ON
INDUSTRIAL DESIGNS
FAQ'S
ON COPYRIGHT
FAQ'S ON IPR
ENFORCEMENT
FAQ'S
GEOGRAPHICAL INDICATION
FAQ'S
DOMAIN NAMES
FAQ'S
ON TRADEMARKS
Q. What is meant of Intellectual Property?
Intellectual
Property is the Property, which has been created by exercise of
Intellectual Faculty. It is the result of persons Intellectual
Activities. Thus Intellectual Property refers to creation of mind
such as inventions, designs for industrial articles, literary,
artistic work, symbols which are ultimately used in commerce.
Intellectual Property rights allow the creators or owners to have
the benefits from their works when these are exploited commercially.
These rights are statutory rights governed in accordance with the
provisions of corresponding legislations. Intellectual Property
rights reward creativity & human endeavor which fuel the
progress of humankind. The intellectual property is classified into
seven categories i.e.. (1) Patent (2) Industrial Design (3) Trade
Marks (4) Copyright (5) Geographical Indications (6) Lay out designs
of integrated circuits (7) Protection of undisclosed
information/Trade Secret according to TRIP's agreements.
Q.
What is a Trademark?
Trademarks can be a word, name, or
an symbol, brand, device, heading, label, ticket, signature, letter
or numeral or any combination thereof, used or proposed to be used
by manufacturers of goods to identify and to distinguish their goods
from similar goods manufactured and marketed by others. A person who
markets his goods under a particular Trademark acquires an exclusive
right to use the mark in relation to those goods.
Q.
What are the rights and benefits of Trademark registration bring?
Trademark registration protects an exclusive right of ownership
of the mark and also helps to identify and distinguish the source of
the goods or services of registered Trademark owner from similar
goods of others. Using the same or deceptively similar mark in
relation to the Trademark owner of goods can also use the Trademark
registration in India as a base for obtaining registration in other
countries and also the right to take legal action against others
that might be infringing the registration.
Q. who
can file a registration application?
The application
can be filed by the owner individual, corporation or partnership, or
generally by the person who uses or controls the use of the mark and
nature, quality of the goods to which it is affixed, or the services
for which it is being used can apply for the registration of the
mark.
Q. What can be registered as Trademark?
A mark which may consists of at least one of the following
essential ingredients: -
A mark can be, a word, label, device
that has acquired distinctiveness by use over a prolonged period of
time, may be registered.
The signature of the applicant for
registration.
One or more invented words.
The name of a
firm, company, individual represented in a particular or special
manner.
One or more words, name having no direct reference to
the character of the goods or a geographical name or a surname or a
personal name or any common abbreviation thereof or the name of a
sect, caste or tribe in India.
Any other distinctive mark,
symbol, logo, device, labels.
Q. Which marks may
not be registered?
The mark which are identical or
deceptively similar with already registered Trademarks or has been
already applied in respect of the same description of goods but also
the use of a mark likely to deceive or cause confusion and the use
of which would be contrary to any law in force or contains
scandalous or obscene matter or any matter likely to hurt the
religious sentiments of any class or section of the citizens of
India may not be registered.
Q. Market research is
necessary before applying for registration?
You must
conduct a market research to ascertain whether any identical or
deceptively similar mark is already being used for the similar
goods. It is advised not to imitate or copy other similar mark or
any other well-known Trademark of different goods. It is desirable
to obtain preliminary search regarding the distinctiveness of your
mark.
Q. How do I find out a status of similar
mark?
Trademark search can be conducted in order to
determine status of any mark of a person or company whether using a
similar mark or not.
Q. What is a Trademark
search?
A Trademark search is conducted to identify
existing Trademarks that may have the potentiality of having
conflict with your proposed mark. The adoption of the mark without
proper search, you may have a risk of being sued for passing-off
Trademark or for infringement that may make you to lose the right to
use your newly acquired mark / product name or slogan in which you
have put efforts in acquiring the same. You have to avoid conflicts
and deceptive similarities with your mark and prior search can make
the difference between the success and failure of your business
venture.
Q. Is it better to have a search before
filing an application?
Yes, it is better to get the
search report of the registered and pending applications before
filing the application.
Q. Is it necessary to have
Trademark search?
Yes, the search results of registered
and pending applications will help you to decide the future name,
word, mark and at the same time It is advisable before making a
large investment in the proposed venture you must assure whether
your mark is secure or not. You should not adopt a similar mark,
which is confusing or having conflict with other company's
Trademark, which may land up you to the risk of a lawsuit for
infringement of Trademark.
·
Q. How long does it take for a mark to get registered?
·
Since the applications are processed on "first come first serve"
basis. Due to backlog a successful application filled for
registration of a Trademark will result 5-6 years before the mark is
registered provided no opposition is entered by any third party.
· Q. How long does registration kept in force or
last?
· Indefinitely, the registration is valid
for seven years from the date of filing and renewal fees have to be
paid at regular intervals after lapse of seven years. ·
Q.
May I apply more than one mark in a single application?
·
No, each separate application has to be filed for each mark. If the
applicant wishes to register the same mark in more than one class, a
separate application must be filed for each class of goods.
Q.
What documents is needed for filing an application?
·
Other than particulars of mark, no document is needed except Power
of Attorney in our favour.
Q. Do any further
conditions have to be met?
· Yes. The Trademark
must not conflict with a Trademark already registered in respect of
similar goods
Q. How to apply for registration?
· We, Mark Innovators will assist you in filing process
for Trademark registration application. Please send us e-mail
indicating your requirements.
Q. How registered
Trademark can be useful?
Apart from distinguishing
your goods from others, a Trademark is probably the single most
valuable marketing asset that most companies can depend upon.
Q.
Can mark refused for registration?
· Yes, mark
can be refused for registration not all words, names, symbols or
devices works as Trademarks. The mark / name which are merely derive
from the generic name of the goods for which it is being used cannot
be registered.
Q. Are users of Trademarks required to
get register them?
· No. Registration is not
compulsory, but without registration, an owner of a Trademark cannot
brings an action for infringement to protect the mark. Suing for
infringement of a registered mark is much simpler than launching a
common law action for passing off to protect an unregistered mark.
Q. Does mark have to be used before it is registered?
· No. The Trademark already in use can be
registered; it is also possible to register Trademarks, which are
intended to be used in future.
Q. Because of non-use
can a mark be removed from the register?
· Yes.
One can apply to have it removed from the register if the Trademark
has not been in use for a period of five years during which it has
been registered. Another option is part-cancellation, in this
instance the monopoly is restricted but the Trademark remains on the
register.
Q. Do Indian citizenship is must for
obtaining a Trademark registration?
· No.
However, an applicant's citizenship must be set forth on record. If
an applicant is not a citizen of this country, then a statement to
that effect is sufficient. If an applicant has dual citizenship,
then the applicant must choose which citizenship will be printed in
the Official Gazette and on the certificate of registration.
Q.
Is Indian registration valid and recognized outside India as well?
· No. Certain countries, however, do recognize an
Indian registration as a basis for registration of the mark in those
countries. It is advisable that regarding registration the laws of
each country must be consulted before filing of the application.
Q. is it possible for a foreign corporation to license
a Trademark in India against payment of royalty in a foreign
currency?
· The license agreement requires prior
approval of the government for payment of royalty to a non-resident.
Those in case of a use of a foreign brand name a payment of royalty
shall not be allowed unless the products on which the mark is used
are intended only for export.
Q. Can the ownership of
a Trademark be assigned or transferred to another person?
·
Yes. a registered mark, or an application which is pending for
registration has been filed is assign able and transferable
Q.
What is proper to use the "TM" and symbol "R"
with the mark?
· Once you have filed an
application for registration of mark, the "TM" symbol may
be used with the mark if an application is pending. One who claims
rights in a mark may use the TM" (Trademark applied) with the
mark to alert the public to its claim. However, the symbol, "R"
can only be used once the mark is actually gets registered in the
Trademark Registrar's Office.
Q. How can I know the
status of my pending application?
· You may check
on the status of a pending application by getting in touch with us
after sending us a filing receipt containing the serial number of
your application.
Q. Under Trademark laws what sort of
protections is available?
· The Trade and
Merchandise Marks Act, 1958 law legally protect your Trademark by
two ways, firstly once the Trademark is registered, infringement can
be easily established. The only protection remedy is available in
common law of passing off in case of unregistered marks and marks
which is not register able. The Trademark law protects the right of
the owner of a mark to use mark that distinguishes his marks from
others.
Q. What is the difference between infringement
action and passing off?
· The basic difference
between an infringement action and an action for passing off is that
the former is a statutory remedy and the latter is a common law
remedy. In order to establish infringement with regard to a
registered Trademark, it is only necessary to establish infringing
mark is identical or deceptively similar to the registered mark and
no other proof is required. In the case of a passing off action that
the marks are identical or deceptively similar and the use of the
mark likely to deceive or cause confusion proving only similarity is
not sufficient. Further, it is necessary to prove that the use of
the mark by the defendant is likely to cause injury or damage to the
plaintiff's goodwill. Whereas in an infringement suit the use of the
mark by the defendant need not cause any injury to the plaintiff.
However, The protection is therefore afforded only to those goods.
When a Trademark is registered with regard to a particular category
of goods. But in a passing off action, the defendant's goods need
not be the same; it may be allied or even different.
Q.
Why are infringement proceedings easier than passing off
proceedings?
· In infringement proceedings the
Trademark users can base their case simply upon their certificate of
registration. In passing off proceedings the owners can only succeed
if they can demonstrate to the court that they have established a
reputation of their mark and it would be likely to confuse the
device to the public and that the complained use of it be as passing
off. It is therefore advisable to register the Trademarks where
possible.
Q. How can I restrain someone using a
Trademark similar to mine?
· There are several
ways to stop use of your Trademark by a third party. Send us e-mail
and depending on the actual situation, we may assist you in stopping
the use of the mark.
Q. Is it necessary to get
professional help?
· The registration of
Trademarks is a specialized area of work and it may be advantageous
to call the services of a specialist, particularly if numerous
difficulties are encountered in an application.
Q.
What are the costs involved for registration of Trademark?
·
Please do contact to us for our services and further for details. If
you have any further queries, please do not hesitate to send us an
e-mail at register@markinnovators.com
·
FAQ'S ON PATENTS
Q.
What is a patent?
· A patent is a property; it is
a monopoly right to exclusive use of an invention and can last for
few years like any other business commodity, may be bough, sold,
hired or licensed.
Q. Can all inventions be patented?
· No. Generally, to get patented an invention must be
linked with the composition, construction or manufacture of a
substance or article or apparatus, or with an industrial process, as
it may distinct from artistic creations, mathematical methods,
business schemes or other purely mental acts. In addition, certain
categories of invention are specifically excluded from patenting
ability.
Q What are further conditions required and to
be met?
· Yes. An invention has to be novel and
not obviously to a person of ordinary skill experienced in the
particular technology.
Q. What rights do patent
creates?
· The exclusive right to use the
invention or allowing others to use it under your terms and
conditions. You also have right to take legal action and to claim
damages against others those might be infringing your invention.
Q. How long does it take get Patented?
·
Generally, the Search Report would be issued within about 3 months
after request, publication would be after 18 months after filling
and first examination about 18 months after publication. Grant
follows after official objections are cleared and from all stages up
to grant must be completed within 4 ½ years of the first filing
date.
Q. What are the charges and other costs?
· The charges and costs for processing
applications, the principal ones are being for filing, later search
and examination. To maintain a patent in force, renewal fees have to
be paid annually from the beginning of the fifth year after filing.
Q. Can I disclose anyone about my invention?
· It is must for you not to disclose your invention to
anyone or allow anyone to exploit it commercially till an
application is submitted, since prior commercial exploitation of
this could prevent grant of a patent or could invalidate a granted
patent.
Q. It is necessary to take professional help?
· It is not necessary since it is a technical and
a legal document and the drafting is a job for an expert as the
strength and novelty of a patent is affected by how well it has been
drafted. So the greater the potential commercial value of an
invention more advisable to obtain professional help.
FAQ'S ON INDUSTRIAL DESIGNS
Q.
What is a registered Design?
· It is a monopoly
right for the outer shape of an article or articles of manufacture
to which the design novelty is being applied. A registered design is
a property like any other commodity may be bought, sold, hired or
licensed.
Q. Can all Designs be registered?
· No. Where the appearance of an article is not
significant novelty or where there is no design freedom because the
shape of the whole or then the design determines the design of the
part is not registered. Thus functional designs are not important,
In other words registered design protection will only be available
for truly aesthetic and stand-alone designs where competitors do not
need to be able to copy such designs in order to compete. There are
also other specific exclusions for certain types of designs and
these include works of sculpture, medals and printed matter
primarily of a literary or artistic character such as book jackets
and calendars, In general, copyright protection is being afforded to
these excluded designs.
Q. What are further
conditions, which have to be met?
Yes. A design has to
be 'novel', i.e. it must not have been prior published in India
before application for registration is made nor registered on an
earlier design application, and it necessarily be materially
different from nay other published design for the same or any other
type of article.
Q. What is the difference between a
Design and a Patent?
· The design applies to the
outward appearance of an article, whereas a patent is concerned with
the function, operation, manufacture or material of construction of
an article.
Q. What is right registered designs
carries?
· The exclusive right in India to make,
imports, sell or hire out article to which the design has been
applied or allow others to use the design under terms settled with
the registered owner. The owner also has the right to take legal
action against infringer and claim damages.
Q. How a
design can be registered in India?
· The owner of
the design may make an application form with filing fee to the
Designs Registry at the Patent Office providing representations of
the design. The Registry will determine if the particular design is
'new' and will make a search through previously registered designs
once other requirements are also formally met, a Certificate of
registration will be issued. Otherwise registration will be refused,
against which there is a right to appeal.
Q. Can
modifications are accepted for registration?
·
Yes, application can be made either to register a modified version
of a previously registered design or to obtain further registration
of a previously registered design, to apply it to a different type
of article to that covered by the original registration.
Q.
How long does registration process takes place?
·
Registration process should normally be completed within six months,
although a total of twelve months (extendable to fifteen) is allowed
an application to be put in proper order.
Q. What will
be the cost and charges to register a design?
·
The costs and charges fee for processing applications, and in most
of the cases it needs only the filing fee. If you wish to keep the
registration in force after the initial 5-year registration term.
Then fees have to be paid for each succeeding 5-year term.
Q.
Can I disclose anyone about my design?
· Before that date
extreme caution is needed to ensure that the design is not made
public or disclosed in any way whatsoever otherwise registration may
later be proved invalid.
Q. Can registered designs be
made public?
· Once registered, registered
designs are laid open to public for inspection with registration
details, but the design itself are not recorded in the Register of
Designs.
Q. How early can the articles make of a
registered design be manufactured and marketed?
·
A extreme caution is needed to ensure that the design is not
disclosed to the public in any way prior to its registration
otherwise registration is not obtainable, However, a design may be
displayed at an exhibition certified by the Department of Trade and
Industry before applying as long as such application is made within
six months of opening of the exhibition.
Q. Can
registered designs be used for other purposes?
·
Yes existing registered designs provide a large amount of technical
and commercial information concerning the latest developments in
product design.
Q. Does the design registry provides
search services?
· Yes, On payment of a fee the
Registry will conduct a search to determine whether a design
resembles a registered design. This service is distinct from the
search conducted as part of the processing of a registered design
application.
FAQ'S ON COPYRIGHT
Q.
What is a registered Copyright?
· The Copyright
includes a exclusive right to a create, acts to do in relation to
artistic, literary, dramatic, Musical works, Cinematography film,
sound recording and Software that he can control various ways in
which their material substance may be exploited. Broadly a Copyright
covers copying, adopting, issuing copies to the public, performing
in public and broadcasting the material in many cases, basically
right to copy or reproduce the work in which Copyright subsists the
creator has right to identify his work.
Q. What are
the rights and benefits of Copyright registration bring?
·
Basically the creator gets exclusive right to copy or reproduce the
work in which Copyright subsists in India to make, imports, sell or
hire out article to which the Copyright has been granted or allow
others to use the work under terms settled as with the registered
owner. The owner also has the right to take legal action against
infringer and claim damages. The Copyright may be enforced by civil
or criminal actions. The registration of Copyright in India is not
mandatory but useful in courts civil and / or criminal proceedings
where it can be taken to protect it.
Q. Who can file a
registration application?
· The application can
be filed by the owner, individual, corporation or partnership, or
generally by the person / the creator basically who has exclusive
right to copy or reproduce the work in which statutory right in
Copyright work subsists in India.
Q. Registration of
Copyright work is necessary?
· Registration under
the Copyright Act is not necessary but registration proves useful
for the enforcement of the statutory right. · In criminal
proceedings unregistered copyright particularly in respect of
artistic labels used, as the Police Authorities do not give
importance to its credibility.
Q. How long does it
take for a Copyright to get registered?
·
Registration process should normally be completed within six months,
although a total of twelve months (extendable to fifteen) is allowed
an application to be put in proper order.
Q. How long
does registration kept in force or last?
· 60
Years from the date of first publication of the photograph.
Q.
What document is needed for filing an application?
·
The particulars of Copyright work to be made in triplicate
accompanied by the copies of the work including Power of Attorney in
our favour.
Q. How to apply for registration?
· The owner of the Copyright may make an
application form with filing fee to the Copyright Registry providing
representations particulars of the copyright work. The Registry will
determine if the particular copyright is 'original work' and will
make a search through previously registered copyright once other
requirements are also formally met, If the registry receives any
objection for such registration after holding inquiry as he deems
fit may enter such particulars of work. We Mark Innovators will
assist you in filing process for Copyright registration application.
Please send us e-mail indicating your requirements
Q.
Do Indian citizenship is must for obtaining a Copyright
registration?
· No. .All nationals of member
countries can register a foreign work in India even though such work
is automatically protected in India under the aforesaid conventions
India is being member of Berne Convention, Paris Convention and
Universal Copyright Convention.
Q. Can the ownership
of a Copyright be assigned or transferred to another person?
· Yes. A owner of the Copyright in a existing
work or the prospective owner of the copyright in a future work may
assign to any person either wholly or partially and either for the
whole term or any part thereof.
Q. What sort of
protection under the Copyright law is available?
·
Copyright may be enforced on infringer by civil or criminal actions.
· Relief allowed is same as in case of Patents in so far as the
civil action is concerned. For criminal action the accused may be
imprisoned or fined up to two lacs Rupees or with both.
Q.
How can I restrain someone using a Copyright work similar to mine?
· There are several ways to restrain use of your copyright
work by a third party. Send us e-mail and depending on the actual
situation, we may assist you in restraining the use of the copyright
work.
Q. Is it necessary to get professional help?
· The registration of Trademarks is a specialized
area of work and it may be advantageous to call the services of a
specialist, particularly numerous difficulties you may encountered
in the application.
Q. What are the costs involved for
registration of Copyright?
· Please do contact to
us for our services and for further details. If you have any further
queries,please do not hesitate to send us an e-mail at
info@markinnovators.net
FAQ'S
ON COPYRIGHT
Q. What is a registered Copyright?
The
Copyright includes a exclusive right to a create, acts to do in
relation to artistic, literary, dramatic, Musical works,
Cinematography film, sound recording and Software that he can
control various ways in which their material substance may be
exploited. Broadly a Copyright covers copying, adopting, issuing
copies to the public, performing in public and broadcasting the
material in many cases, basically right to copy or reproduce the
work in which Copyright subsists the creator has right to identify
his work.
Q. What are the rights and benefits of
Copyright registration bring?
Basically the creator
gets exclusive right to copy or reproduce the work in which
Copyright subsists in India to make, imports, sell or hire out
article to which the Copyright has been granted or allow others to
use the work under terms settled as with the registered owner. The
owner also has the right to take legal action against infringer and
claim damages. The Copyright may be enforced by civil or criminal
actions. The registration of Copyright in India is not mandatory but
useful in courts civil and / or criminal proceedings where it can be
taken to protect it.
Q. Who can file a
registration application?
The application can be filed
by the owner, individual, corporation or partnership, or generally
by the person / the creator basically who has exclusive right to
copy or reproduce the work in which statutory right in Copyright
work subsists in India.
Q. Registration of
Copyright work is necessary?
Registration under the
Copyright Act is not necessary but registration proves useful for
the enforcement of the statutory right.In criminal proceedings
unregistered copyright particularly in respect of artistic labels
used, as the Police Authorities do not give importance to its
credibility.
Q. How long does it take for a Copyright
to get registered?
Registration process should normally
be completed within six months, although a total of twelve months
(extendable to fifteen) is allowed an application to be put in
proper order.
Q. How long does registration kept in
force or last?
60 Years from the date of first
publication of the photograph.60 years in respect of other works
from the beginning of the calendar year following the year in which
the author dies.
Q. What document is needed for filing
an application?
The particulars of Copyright work to
be made in triplicate accompanied by the copies of the work
including Power of Attorney in our favour.
Q. How to
apply for registration?
The owner of the Copyright may
make an application form with filing fee to the Copyright Registry
providing representations particulars of the copyright work. The
Registry will determine if the particular copyright is 'original
work' and will make a search through previously registered copyright
once other requirements are also formally met, If the registry
receives any objection for such registration after holding inquiry
as he deems fit may enter such particulars of work. We Mark
Innovators will assist you in filing process for Copyright
registration application. Please send us e-mail indicating your
requirements
Q. Do Indian citizenship is must for
obtaining a Copyright registration?
No. All nationals
of member countries can register a foreign work in India even though
such work is automatically protected in India under the aforesaid
conventions India is being member of Berne Convention, Paris
Convention and Universal Copyright Convention.
Q. Can
the ownership of a Copyright be assigned or transferred to another
person?
Yes. A owner of the Copyright in a existing
work or the prospective owner of the copyright in a future work may
assign to any person either wholly or partially and either for the
whole term or any part thereof.
Q. What sort of
protection under the Copyright law is available?
Copyright
may be enforced on infringer by civil or criminal actions.Relief
allowed is same as in case of Patents in so far as the civil action
is concerned.For criminal action the accused may be imprisoned or
fined up to two lacs Rupees or with both.
Q. How can I
restrain someone using a Copyright work similar to mine?
There
are several ways to restrain use of your copyright work by a third
party. Send us e-mail and depending on the actual situation, we may
assist you in restraining the use of the copyright work.
Q.
Is it necessary to get professional help?
The
registration of Trademarks is a specialized area of work and it may
be advantageous to call the services of a specialist, particularly
numerous difficulties you may encounter in the application.
Q.
What are the costs involved for registration of Copyright?
Please
do contact to us for further details. If you have any further
queries, please do not hesitate to send us an e-mail at
info@markinnovators.net
FAQ'S ON IPR ENFORCEMENT
Q. What
is IPR enforcement?
· The Intellectual Property
Rights play a significant role in the economic prosperity and in the
field of advancement and development of reliable, business,
technology of a country. The prosperity and advancement in living
standards of its citizen all around is an out come of their legacy
in maintaining assets of Intellectual Property Rights, though
Intellectual Property enumerates the vast human activity and
creativity and it necessitate to protect existing Intellectual
Properties from man made erosion tactics. The protection of IPR
assets resources not only encourages its advancement and prosperity
of economic interests but also encourages the activities of human
creativity to manifold in inventing new and novel ideas to come in
to life. In a growing country like India where all the well-known
Trademarks are frequently infringed in the allied fields and even in
different fields by the people necessitating the owners to device
arsenals, means in protecting their intellectual properties. The
major ingredient of the enforcement is Investigation and
identification of infringing activities and trade channels of the
clandestine sales operation and putting curb on the operating
channels.
Q. What are the rights and benefits of
registration under IPR bring?
· The registration
under IPR Acts protects and gives an exclusive, monopolistic right
of ownership of the Intellectual Property assets and it also helps
to identify and distinguish the source of your goods or services of
registered intellectual Property assets owner from similar goods of
others. The registration Intellectual Property assets makes a base
for obtaining registration in other countries and it also gives the
exclusive right to take legal (Civil or Criminal) action against
others, who might be infringing the registration by using the same
or deceptively similar mark in relation to the Trademark owner of
goods.
Q. Under IPR laws what civil remedies are
available against infringement?
There are common
remedies available in two branches of IPR laws in India. The civil
remedy and the criminal remedy in both the reliefs can be availed
against the infringement of IPR assets by the aggrieved party in the
respective jurisdiction of Indian Courts
Remedies in Civil
Cases: -
· Temporary Injunction
· Anton Pillar Order (sometimes)
· Order for
civil search & service
· Damages / Profit / rendition
of accounts
· Costs
· In case of Trademark :-
· The Trade and Merchandise Marks Act, 1958 law
legally protect your Trademark by two ways, firstly once the
Trademark is registered, infringement can be easily established. The
Trade and Merchandise Marks Act, makes it an offence to apply false
Trademarks, trade descriptions etc., to goods under section 78 of
The Trade and Merchandise Marks Act, 1958 provides that any person
falsifies any Trademark or falsely applies to goods any trade marks
or makes, disposes or has in his possession, any dies, block,
machine, plate or other instrument for the purpose of falsifying a
Trademark causes any of things shall unless he proves that he acted
without intent to defraud be punishable with imprisonment or fine or
with both. The proviso of section 78 provides that if the offence is
related to 'Drugs' or 'Food' as defined under the Drugs and
Cosmetics Act and as defined under Prevention of Food Adulteration
Act, the offender shall be punishable with imprisonment for a term
which may extended to three years or with fine or with both. In case
of unregistered marks and marks which are not register- able, the
only protection remedy is available in common law is passing off.
The Trademark law protects the right of the owner of a mark to use
mark that distinguishes his marks from others.
· In
case Copyright :-
For criminal action the accused may be
imprisoned or fined up to two lacs Rupees or with both.
·
In case of Patent :- .
· Criminal action does not lie
unlike in Trademarks and Copyright.
· In case of Design :-
· Criminal action does not lie unlike in Trademarks and
Copyright.
Q. Under IPR laws what criminal
remedies is available against infringement?
There are
common remedies available in two branches of IPR laws in India. The
civil remedy and the criminal remedy in both the reliefs can be
availed against the infringement of IPR assets by the aggrieved
party in the respective jurisdiction of Indian Courts
Remedies
in Criminal Cases: -
· Seizure of goods
· Arrest
of accused
· Imprisonment
· Fine
· Or
both
· In case of Trademark :-
· The Trade and
Merchandise Marks Act, 1958 law legally protect your Trademark by
two ways, firstly once the Trademark is registered, infringement can
be easily established. The Trade and Merchandise Marks Act, makes it
an offence to apply false Trademarks, trade descriptions etc., to
goods under section 78 of The Trade and Merchandise Marks Act, 1958
provides that any person falsifies any Trademark or falsely applies
to goods any trade marks or makes, disposes or has in his
possession, any dies, block, machine, plate or other instrument for
the purpose of falsifying a Trademark causes any of things shall
unless he proves that he acted without intent to defraud be
punishable with imprisonment or fine or with both. The proviso of
section 78 provides that if the offence is related to 'Drugs' or
'Food' as defined under the Drugs and Cosmetics Act and as defined
under Prevention of Food Adulteration Act, the offender shall be
punishable with imprisonment for a term which may extended to three
years or with fine or with both. In case of unregistered marks and
marks which are not register- able, the only protection remedy is
available in common law is passing off. The Trademark law protects
the right of the owner of a mark to use mark that distinguishes his
marks from others.
· In case Copyright :-
·
Copyright may be enforced by civil actions.
· Relief
allowed is same as in case of Patents in so far as the civil action
is concerned.
· In case of Patent :-
· In case
of any infringement of pending patent, no action can be taken unless
the patent has been sealed.
· Unauthorized making, using,
selling or distributing of a patented product / process amounts to
an infringement of Patent.
· Action for infringement of
Patent may be instituted in a District Court or High Court having
its jurisdiction.
· In case of Design :- ·
Infringement action for unauthorized use of registered Design.
·
Infringement action can be filed in the District Court or High Court
having jurisdiction.
· The relief available include
Injunction order, Rendition of accounts of profits illegally if any,
earned by the defendant, damages, delivery up, costs. Anton pillar
orders are also issued.
Q. Is it necessary to
have investigation?
· You must conduct a
investigation to ascertain whether any identical or deceptively
similar mark is already being used for the similar goods or who are
the operators who are indulging in the piracy of your product and
what are their sources and channels of getting pirated goods through
which channel they are circulating their spurious goods and damaging
your reputation. It is advised to take the help of proficient IPR
enforcement team, which can provide the necessary inputs with regard
to clandestine spurious operating network and can also provide
logistic support in apprehending the culprits through coordinating
with all the agencies in getting search and seizure of spurious
goods. There are several ways to investigate, identify the spurious
sources to stop unauthorized use of your intellectual Property by a
third party. Send us e-mail and depending on the actual situation,
we may assist you in stopping the use of the property.
Q.
How to go for IPR enforcement action?
· We are
specialize in Investigations to trace out such Infringers who are
operating clandestine in invisible manner and we help and guide our
clients to initiate the appropriate Civil or Criminal proceedings
against such infringers before the appropriate forums where by, the
criminal activities of the unscrupulous traders are minimized or
scuttled. We have our own trained detectives to trace and get
complete details of activities of these infringers and their nature
of work, business turnover, etc., including also the trade channels
through which they sell their spurious, duplicate products Send us
e-mail and depending on the actual situation, we may assist you in
stopping the use of the property.
Q. What
documents is needed for filing a civil / criminal case?
·
For filing the suit case for Temporary Injunction, Damages / Profit
/ rendition of accounts, Anton Pillar Order, Order for civil search
& service, Costs or Search warrants and seizure of goods under
Criminal Procedure Code, Arrest of accused against the infringement
in the Civil or Criminal court. The Plaintiff / Complainant needs
documents pertaining to the incorporation of the company /
registration certificate of Trademark or Copyright showing proof of
ownership / Copies of the bills or receipts showing prior usage of
mark or logo / Copies of the advertisements / advertisement material
if any with sales figures of last few years / sales tax / excise
deposit figures / samples of the Original and Duplicate products /
Lab analysis reports of the Original and Duplicate products /
Complaints of the Customers, if any / Investigation report showing
availability of duplicate or spurious products including mentioning
of its jurisdiction / Power of Attorney for filing case or complaint
in court.
Q. Registration of Product is
necessary?
· No. Registration under IPR Acts are
not compulsory or mandatory but without valid registration, an owner
of a Trademark / Copyright / Patent / or Design cannot bring an
action for infringement / damages to protect its statutory
Intellectual Property Rights and suing for infringement of a
registered mark is much simpler than launching a common law action
for passing off to protect an unregistered mark but the registration
under the Copyright Act proves useful for the enforcement of the
statutory right. As in the case of criminal proceedings unregistered
copyright particularly in respect of artistic labels used, as the
Police Authorities do not give due importance to its credibility
even being the originator at the time of search and seizure action.
Q. Can I restrain someone using a similar work to
mine?
· Yes. You can restrain any one who uses
deceptively similar mark, artwork, Design, Patent to yours adopting
significant or salient features of your product. There are several
ways to stop use of your property rights by a third party. Send us
e-mail and depending on the actual situation, we may assist you in
stopping unauthorized use of the property by a third party.
Q.
Do Indian citizenship is must for obtaining IPR enforcement orders
in India?
· No. In matters of criminal complaints
or civil suits one can approach the court for issuance of Interim
injunctions against the infringements as the plea for Trans border
reputation recognized by the Indian Courts and there are plenty of
court precedents wherein the plea of Trans border reputation being
accepted.
Q. Is it necessary to get professional help?
· The enforcement of IPR rights is a specialized area of work.
Wherein from initial identification of spurious products to
investigation of whole clandestine operation network finally
issuance of search, seizure warrants or interim injunction against
the infringement and its meticulous execution is necessary for
curbing the criminal activities of the unscrupulous traders which
are needed to be minimized or scuttled keeping in over all view of
its gravity. It may be advantageous to call the services of a
specialist, particularly numerous difficulties you may encountered
while identifying and in curbing the infringement.
Q.
What are the costs involved for enforcement of Intellectual Property
Rights?
· Please do contact to us for further
details of costs and charges for enforcing IPR statutory rights and
to avail our comprehensive services. If you have any further
queries, please do not hesitate to send us an e-mail at
info@markinnovators.net
FAQ'S
GEOGRAPHICAL INDICATION
What is a
Geographical Indication?
It is an indication. It
originates from a definite geographical territory. It is used to
identify agricultural, natural or manufactured goods. The
manufactured goods should be produced or processed or prepared in
that territory. It should have a special quality or reputation or
other characteristics
What are possible Indian
Geographical Indications examples?
The best Indian
examples are Basmati Rice, Darjeeling Tea, Kanchipuram Silk Sarees,
Alphanso Mango, Nagpur Orange, Kolhapuri Chappasl, Bikaneri Bhujia,
Agra Petha, Benares silk Sarees etc.,
What is the
benefit of registration of geographical indications?
It
confers legal protection to Geographical Indications in India and
Prevents unauthorised use of a Registered Geographical Indication by
others. It also provides legal protection to Indian Geographical
Indications, which in turn boost exports. It promotes economic
prosperity of producers of goods produced in a geographical
territory.
Who can apply for the registration of
a geographical indication?
That any association of
persons, producers, organization or authority established by or
under the law can apply:The applicant must represent the interest of
the producers. The application should be in writing in the
prescribed form. The application should be addressed to the
Registrar of Geographical Indications along with prescribed fee.
Who
is a registered proprietor of a geographical indication?
That
any association of persons, producers, organization or authority
established by or under the law can be a registered proprietor.
Their name should be entered in the Register of Geographical
Indication as registered proprietor for the Geographical Indication
applied for.
Who is an authorised user?
A
producer of goods can apply for registration as an authorised
user.It must be in respect of a registered geographical
indication.He should apply in writing in the prescribed form along
with prescribed fee.
Who is a producer in relation to
a Geographical Indication?
The persons dealing with
three categories of goods are covered under the term Producer: The
Agricultural Goods includes the production, processing, trading or
dealing. The Natural Goods includes exploiting, trading or dealing.
The Handicrafts or Industrial goods include making, manufacturing,
trading or dealing.Is a registration of a geographical indication
compulsory and how does it help the applicant? The Registration is
not compulsory. The Registration affords better legal protection to
facilitate an action for infringement. The registered proprietor and
authorised users can initiate infringement actions. The authorised
users can exercise the exclusive right to use the geographical
indication. Who can use the registered geographical indication? An
authorised user has the exclusive rights to the use of geographical
indication in relation to goods in respect of which it is
registered. How long the registration of Geographical Indication is
valid?The registration of a geographical indication is valid for a
period of 10 years.
Can a Geographical Indication
be renewed?
It can be renewed from time to time for
further period of 10 years each. What is the effect if a
Geographical Indication if it is not renewed? If a registered
geographical indication is not renewed it is liable to be removed
from the register.
When registered Geographical
Indication said to be infringed?
When an unauthorised
user uses a geographical indication that indicates or suggests that
such goods originate in a geographical area other than the true
place of origin of such goods in a manner that mislead the public as
to the geographical origin of such goods. When the use of
geographical indication result in an unfair competition including
passing off in respect of registered geographical indication. When
the use of another geographical indication results in false
representation to the public that goods originate in a territory in
respect of which a registered geographical indication relates.
Who
can initiate an infringement action?
The registered
proprietor or authorised users of a registered geographical
indication can initiate an infringement action.
Can a
registered geographical indication be assigned, transmitted, etc?
No.
A geographical indication is a public property belonging to the
producers of the concerned goods. It shall not be the subject matter
of assignment, transmission, licensing, pledge, mortgage or such
other agreement. However, when an authorised user dies, his right
devolves on his successor in title.
Can a registered
geographical indication or a registered authorised user be removed
from the register?
Yes, the Appellate Board or the
Registrar of Geographical Indications has the power to remove the
geographical indication or an authorised user from the register.
Further, on application by an aggrieved person action can be taken.
How a geographical indication is different from a
trademark?
A trademark is a sign that is used in the
course of trade and it distinguishes goods or services of one
enterprise from those of other enterprises. Whereas a geographical
indication is an indication used to identify goods having special
characteristics originating from a definite geographical territory.
Q.
What are the costs involved for registration of a geographical
indication?
Please do contact to us for further details. If you
have any further queries, please do not hesitate to send us an
e-mail at info@markinnovators.net
FAQ'S
DOMAIN NAMES
Q. What is a domain
name?
That a domain name, web address or URL is an
address assigned to individuals or companies in order for them to be
located on the World Wide Web. For example, the domain name
Markinnovators.com represents Mark innovators. Your domain name is
your unique identity on the web and is your "Online Brand".
Your customers will use this name to find about your services and
products from all over the world. Since no two parties can own the
same address, your Internet identity is unique.
Q. Why
should I register a domain name?
As domain name, apart
from being your worldwide address, it is your own unique identity on
the web. It puts you in the limelight and your business to millions
of people worldwide. When you register your domain name, you will be
among those million others who are reaping the rewards of being
online.
Q. Why should I register my domain name as a
trademark?
Please note that owning a domain name
without a Trade Mark does not necessarily permit you to conduct
business with that domain. When you build a lot of brand equity in a
name, the last thing you would see it tarnished. Therefore, as a
good option, to ensure security, secure your domain name along with
a registered trademark. Many businesses and domain owners have spent
a lot of money and time building and establishing a business only to
find out later that some other business or individual placed or
previously applied for a trademark. Some business/domain owners have
been ordered by court to stop conducting business, which infringes
on other's business/domain and others have stopped doing such
business to avoid legal prosecution.
Q. What forms of
protection are available for domain names?
The High
Court of Mumbai has held that the Internet domain names are of
importance and are a valuable corporate asset. A domain name is more
than an Internet address and is entitled protection as a trademark.
With the advancement and progress in technology, the services
rendered in the Internet site have also come to be recognised and
accepted and are being given protection so as to protect such
provider of service from passing off the services rendered by others
as his service. As in the case of Rediff Communication Limited Vs
Cyber booth, (dispute of the domain name radiff.com as against
rediff.com), the Court was satisfied that the defendants have
adopted the domain name "Radiff" with the intention to
trade on the plaintiff's reputation and accordingly the defendant
was prohibited from using the said domain name.
Q.
What are the costs involved for trademark registration?
Please
do contact to us for further details for enforcing IPR statutory
rights and to avail our comprehensive services. If you have any
further queries, please do not hesitate to send us an e-mail at
info@markinnovators.net |
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