FAQs

What is Trademarks?

A trademark popularly known as brand name is a visual symbol in the form of a word or a device or a label applied to the commercial goods or service to enable the consumer public to identify one trader's goods from similar goods of other traders. Under the Trade and Merchandise Marks Act, 1958 registration of 'service mark' is not possible but under the new Trade Marks Act, 1999 registration of 'service mark' can be done. Such 'service mark' can be used as a trade mark but applied to services rather than goods i.e. Banking, Communication, Education, Financing, Insurance, Chit Funds, Real Estate, Transport, Storage material treatment, Processing, Supply of electrical or other energy, Boarding and Lodging, Entertainment, Amusement, Construction, Repair, Conveying of news or Information or Information and Advertising. Registration of a trade mark is not compulsory. But for better protection it is advisable to register a trade mark.

What is Servicemark?

Under the Trade and Merchandise Marks Act, 1958 registration of 'service mark' is not possible but under the new Trade Marks Act, 1999 registration of 'service mark' can be applied Registration of a trade mark may be done by filing an application in the prescribed from after filling the prescribed from i.e. [TM-8 & TM-48] [forms can be supplied or provided on request] and fees form the office of the Trade Mark. Such 'service mark ' can be used as a trade mark but applied to services rather than goods i.e. Banking , Communication ,Education ,Financing ,Insurance ,Chit Funds, Real Estate , Transport , Storage material treatment , Processing , Supply of electrical or other energy , Boarding and Lodging , Entertainment , Amusement , Construction ,Repair , Conveying of news or Information or Information and Advertising. Each service mark has separate fees.

What is Collective Mark?

The new definition of ' Collective mark ' has been provided for the benefit of members of an association of persons (but not partnership) and such inclusion of ' Collective mark ' will benefit the traditional Indian family trademarks. ?Collective mark ' can be applied Registration of a trade mark may be done by filing an application in the prescribed from after filling the prescribed from i.e. [TM-3 & TM-48] [forms can be supplied or provided on request] and fees form the office of the Trade Mark

Renewal of Registration?

The renewal of registration of a trademark should be made for every ten years instead of seven years under the present Act. Renewal can be applied Registration of a trade mark may be done by filing an application in the prescribed from after filling the prescribed from i.e. [TM-12 & TM-48]

Search of the trade marks?

Before registration the applicant or person it is advisable to get the trade mark be search after filling the prescribed from i.e.[TM-11 & TM-54 & TM-48] [forms can be supplied or provided on request.

Whether registration of Trade Mark is compulsory under the Act?

No. Registration of a trade mark is not compulsory. But for better protection it is advisable to register a trade mark.

How to acquire a right of property in a trade mark?

Person may acquire a right of property in a trade mark in the following modes
1. By use of the mark in relation to particular goods ;or
2. By registration under the Act; or

Time from for registration of a trade mark?

At present it takes three years aprox. From the date of application.

Professional help for registration?

As registration of trade mark is a specialized area, it may be necessary to employ the services of a trade mark Agent or Attorney .However this is not compulsory.

Whether 'user or proposed to be used' is very important in trade mark?

Yes. A trade mark must be used in relation to the goods for which the registration is sought or obtained. The applicant should have bonafide intention to use the mark at the time of filing the application and further the applicant can claim rights from the date of user or from the date of application.

Whether the proprietor of an unregistered or registered trade mark can initiate legal action?

Yes. Both Civil & Criminal proceedings The proprietor of an unregistered mark may bring legal action against the subsequent user by filing a civil suit for 'passing off' action on the basis of 'prior’.

Whether mere filing of trade mark application conferred any rights?

No Mere filing of trade mark application will not confer any rights on the applicant. Proprietary rights over a trade mark can be claimed only by continuous use of the mark.

Whether advertisement is sufficient to establish the 'User' of a trade mark?

The advertisement of a mark in any periodical or magazine or in electronic media may be regarded as evidence to establish the 'prior user' of a trade mark.

What is copyright?

Copyright is a protection that covers published and unpublished literary, scientific and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. This means that if you can see it, hear it and/or touch it - it may be protected. If it is an essay, if it is a play, if it is a song, if it is a funky original dance move, if it is a photograph, HTML coding or a computer graphic that can be set on paper, recorded on tape or saved to a hard drive, it may be protected. Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to grab it. Such works are:-
1. Literary, dramatic, musical and artistic works.
2. Cinematograph film and Sound recordings.

When does Copyright Protection begin, and what is required?

Copyright protection begins when any of the above described work is actually created and fixed in a tangible form.
For example, my brother is a musician and he lives in the United States. When he writes new lyrics, he prints them out on paper, signs his name at the bottom with the Copyright © symbol to show that he is the author, places it in an envelope and mails it to himself without opening it. His copyright begins at the moment he puts his idea in a tangible form by printing the lyrics out on paper. He creates proof when he mails it to himself - the postmark establishes the date of creation. He then registers his copyright with the The Copyright Act, 1957 which is a requirement in order to sue for monetary damages should a violation of his copyright arise. However, if somebody copies and redistributes his lyrics without permission before his copyright is registered, he still has the right to assert a copyright claim as the true author.

What are the rights available through copyright protection?

Copyright owners have the exclusive rights to do or authorize the doing of any of the following in respect of a work
1. To issue copies of the work to the public not being copies already in publication;
2. To perform the work in public, or communicate it to the public;
3. To make any translation or adaptation of the work;
4. To sell or give on hire, or offer for sale or hire a copy (in case of a computer programme regardless of whether such
5. copy has been sold or given on hire on earlier occasions;
6. Copyright confers a number of rights, some or all of which can be granted to others either exclusively or non-exclusively;
7. To reproduce the copyrighted work in copies or recordings.
8. To prepare derivative works based upon the copyrighted work;
9. To distribute copies or recordings of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
10. To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures and other audiovisual works; and
11. To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.

What are the requirements for filing the copyright application in India?

The registration of the Copyright may be done by filing an application in the prescribed from in FORM-IV Application for Registration of Copyright along with copier of the work in triplicate i.e. Statement of Particulars & Statement of Further Particulars. If copyright in case of trademark, than search certificate has to be attached from the trademark registry & thereafter, application of copyright can be filed in the copyright office.

Whether it is compulsory Registration?

It is not necessary under the Indian Copyright Act to register with the Copyright Office to get copyright protection. But Registration of copyright is helpful in an infringement suit whether civil or criminal. Copies of any entries therein, or extracts from the register which are certified by the Registrar of copyrights and with the seal of the copyright office, are admissible as evidence in all courts without proof or production of the original.

What is covered by copyright?

The kinds of works covered by copyright include: literary works such as novels, poems, plays, reference works, newspapers and computer programmes, databases, films, musical compositions and choreography; artistic works such as paintings, drawings, photographs and sculpture, architecture and advertisements, maps, industrial and engineering drawings.

What is the term of a copyright?

1. If published within the life time of the author of a literary work the term is for the life time of the author plus 60 years.
2. For cinematographic films, records, photographs, posthumous publication, anonymous publication, works of government and international agencies the term is 60 years from the beginning, of the calendar year following the year in which the work was published.
3. For broadcasting the term is 25 years from the beginning of the calendar year following the year, in which the broadcast was made.

Office of the Copyright Board?

The office of the copyright is located in Delhi for entire India

What is Patents?

A patent is a monopoly right granted by the government to a person for his or her inventions for a limited period.

What are the rights for the patent holder?

exclusive right to manufacture the new article

Who can apply for a patent?

1. Any person being the inventor of an invention or his assignee can apply alone or jointly with any other person
2. Applicant of a application in a basic convention country can apply by himself or through his assignee.
3. Applicant of a basic application in a basic convention country can apply by himself or through his assignee.
4. A Partnership firm, a private or a public limited Company or a Corporation can apply for a patent. But they cannot invent and therefore cannot be termed as 'inventor' .Therefore only Individuals could be termed as 'Inventor'.

What is a patentable invention?

As per the Indian Patents Act, 1970 invention means any new or useful –
1. art , process , method or manner of manufacture,
2. machine ,apparatus or other article,
3. Substance produced by manufacture and includes any new and useful improvement of any of them and alleged invention

Whether a Foreign National is competent to file patent application in India?

Yes .A Foreign National residing abroad is not prohibited from making an application and obtaining the grant of patent in India

Whether the 'prior sale' can be made before filing patent application?

No. The invented article must not be put in the market for sale or be physically sold under the invoice before filing patent application in the patent office. Otherwise the invented article or process will loose novelty to create sufficient grounds for invalidating the chances of getting a patent. Hence the novelty in the invention is lost if the article is demonstrated , worked or sold .Therefore it is advisable not to commence the commercial marketing of an invented article before applying for patent.

What are the stages for obtaining a patent?

1. Submission of application accompanied by either a provisional or complete specification. Registration of a patent may be done by filing an application in the prescribed from after filling the prescribed from i.e. Form-1 the Patent Act,1970[forms can be supplied or provided on request]
2. Advertisement and acceptance of complete specification in the Patent Gazette.
3. Opposition to the grant of patent, if any. may be done by filing an application in the prescribed from after filling the prescribed from i.e. Form-54 the Patent Act,1970 [forms can be supplied or provided on request] 4. Grant and sealing of the patent. may be done by filing an application in the prescribed from after filling the prescribed from i.e. Form-22 the Patent Act,1970 [forms can be supplied or provided on request]

How long does it take to grant patent?

At present on an average it takes about 3 years from the date of filing application .It may be reduced in future because of computerization of Patent offices.

What is a specification?

A patent specification is a technical document describing the invention. A specification may be either provisional or complete. Provisional specification gives the initial description of an invention when the application is filed .A complete specification gives full and sufficient of an invention.

What is meant by 'term of a patent'?

The term of the patent is meant for duration of the validity of the patent.
1. The term of patent will be FIVE years for food, drug, and medicine cases from its sealing date of seven years from the date of patent whichever is shorter.
2. The term of patent in respect of other inventions will be FOURTEEN years from the date of patent (i.e. date of filing complete specification).

What are the documents to be accompanied in the patent application?

Application for patent is made on the prescribed form along with the following documents.
1. Power of Attorney in favor of a person acting as a Patent Agent (this is not necessary in case if the application is filed by the applicant himself /themselves.
2. A PROVISIONAL or COMPLETE specification in triplicate describing the invention.
3. Drawings in triplicates (if any)

Is it possible to take legal action for 'infringement of patent' during the pendency of a patent application?

No. It is not possible to initiate legal action against the infringers during the pendency of patent application Copyright can claim by the applicant for such patent drawings than take legal action for 'infringement of copyright' in the engineering drawings which accompanies the patent specification.

What is Design?

A design is something which is applied to an 'article' and further such article should have 'appeal and to be judged solely by the eye'. The appearance of such design must be striking and it should be 'new or original '. Hence a design in order to be entitled for registration under the Designs Act, 2000 must be either new or original but not previously published in India. Therefore 'novelty' and 'originality' are important in a design for registration.