IPR (Intellectual Property Rights) Registration
1. Trademark
A trademark is a visual symbol, which may be a word, name, device, label or numeral used by a business to distinguish its goods or services from other similar products or services originating from a different business.
A trademark is a recognizable sign, design, or expression which identifies products or services of a particular activity. It is in the form of a logo, image, symbol, word(s), letter(s) or color(s). It is a recogni-tion of the company’s/individual’s ownership of the brand. Trademarked products are considered as form of property/intangible asset. Trademarks are often noted by way of ™, or ® if registered
Benefits of Registering Trademark:
1) It identifies the goods and services and its origin or owner.
2) Its registration is the basis for legal compensation.
3) It establishes the legal right of the trademark owner to use the trademark throughout the country.
4) It is the most cost-effective way to ensure legal exclusivity for the use of your trade name or logo etc.
5) It can be sold, licensed or assigned
Eligibility & Requirements
Any person or legal entity can file a trademark application in India. There is no requirement for the mark to be used before applying. Hence, a trademark application can be filed under the category of “Mark proposed to be used” if the inventor of the word or mark wants to protect it before advertising the brand.
There is also no requirement for the trademark applicant to be an Indian citizen or Indian business. Hence, any foreign national or foreign entity interested in securing a trademark registration in India can file a trademark application without any other requirements.
Procedure of Trademark Registration
Registration of the trademark begins with a trademark search which has not been used till now by any company, then for brand registration you need to fill an application for of TM-A from the trademark registration office. For the trademark registration, you would have to fill a certain amount of fee also.
After once the trademark is approved and registered successfully, you would be able to use it for various purposes in your company.
Documents Required
Following documents should be uploaded:
To register a trademark the following documents should be uploaded
A] In case of Individuals and Sole Proprietorship
1) Copy of the logo, preferably in black & white (Optional). In case logo is not provided, the trademark applicable on can be filed for the word.
2) General Power of Attorney on stamp paper is an authorization from the applicant to a Trademark Agent / Attorney for filing the trademark application on his/her behalf.
3) Identity Proof of the individual or Proprietor.
4) Address Proof of the individual or Proprietor.
5) User affidavit on stamp paper is trademark is in use before application
- Logo, if applicable, Word alone can be trademarked.
- Identity proof of the trademark owner
- Incorporation certificate, if company or LLP
- Address proof
B] In Case of Partnership /LLP /Company-Small Enterprise or Startup/Others
1) Copy of Logo (Optional)
2) Power of attorney on stamp paper
3) UdyogAadhar Registration Certificate.
4) Incorporation Certificate or Partnership Deed.
5) Identity Proof of Signatory.
6) Address Proof of Signatory
7) User affidavit on stamp paper is trademark is in use before application.
Trademark
Objection
Trademark objection is one of the initial stages in the trademark registration process where the trademark examiner objects to your application due to certain reasons. It is not a straight forward denial to your claim, but the registrar seeks valid reasons or explanations about the mark and its registrability. He gives the applicant an opportunity to explain how the said trademark fits the criteria to avail valid registration. This is Trademark objection reply
There are mainly two specific reasons for trademark objection:
1. Contains incomplete/wrong information
2. Similar trademarks already exist
- The first thing one must do is file a counter statement to the objection.
- This must be done within 2 months from the date of receiving the notice of objection
- Failure to file an objection within 2 months will change the status of the application to Abandoned.
Following are the steps to File a Reply to the Objected Trademark:
- Analyzing Trademark Objection
- Drafting Of Trademark Objection Reply
- The response draft is then filed online on the Trademark e-filing portal.
Trademark
Assignment ?
How to Transfer
Trademark Right to
Other Owners ?
Trademarks are often transferred from one owner to another. The transfers may well be temporary through licensing or permanent through the assignment. Trademark Assignment of logos may be a method within which the owner of the trademark transfers the possession of the mark either with or without the goodwill of the business. In different words, it’s transferring of proprietary rights within the property of the businessman.
Transfer of trademark is profitable from both perspectives. The proprietor will be paid to assign his trademark and the assignee will benefit from the mark . The way within which assignment are often created square measure as follows:
- Complete assignment of logos
- Partial assignment of logos
- Assignment with goodwill
- Assignment without goodwill
Step by Step Procedure for Trademark Assignment Agreement:
1. Making Application for Trademark Assignment.
2. Filing the Application in a TM-P format
3. Obtaining the order of the Registrar before the expiry of 6 months
4. Advertisement of Trademark Assignment
5. Final Approval and Transfer
Trademark Renewal
in India
A trademark registration is valid for ten years and after that, it needs a renewal. Don’t worry if you forget to set an alarm for it you will receive a prior notice at the registered office regarding the renewal of your trademark.
The validity period of trademark in India is for a period of 10 years as per section 25 in the Trade Marks Act, 1999.The registered trademark can be renewed for another 10 years with proper documentation and meeting the required criteria.
The registrar sends a notice 6 months before the expiration of the trademark.
Renewing your
Trademark
| TM-R – Application form for renewal of a registered trademark to be used by the registered proprietor |
| TM-18 – Affidavit in support of the case |
Documents needed for trademark renewal
- A copy of the Registration Certificate
- Power of Attorney
- An ID & Address Proof of the Applicant and
- A copy of TM-1.
Restoration of the trademark
A process to revive and restore a Trademark again, after the expiry of the trademark Renewal time frame. If a trademark has been removed from the register of trademarks owing to non-filing of the renewal request on Form TM-R with the requisite fee (restoration fee of INR 9000), then the proprietor of the said trademark can file an application for the restoration of a trademark to the register and renewal of its registration.
The Registrar will restore the Trademark if satisfied that it is just to do so.
On Restoring a Trademark, the same is not removed from the register of Trademarks for the next 10 years.
2. Copyright
Registration in India
An Overview
By law, copyright is the legal right entitled to creators of literary, dramatics, music, and artistic work and producers of films and recordings. Copyright registration in India grants its proprietor exclusive, sole rights to distribute, replicate, reproduce the work or give authorization to another entity for the same. It offers a bundle of rights – communication to the public, rights of reproduction, adaptation and translation of the work.
- Top of Form
- Bottom of Form
Why register a copyright in India? Benefits
Getting copyrights for books, music pieces, movies, photography, software programs, etc. gives the author the following benefits:
When the work gets copyrighted, it is made available free on the public records, thereby creating the ownership.
In the case of copyright infringement, the authors can sue the infringers to secure their work and claim statutory damages
The owners can record the registration with Indian customs and prevent importing duplicate copies
Any by-product or derivative can be made from the original registered work
The rights can be passed or sold to third-party with no objection
Copyright protection enables the owners to exhibit their work
Copyright registration in India – A detailed process
The process for registering copyright involves the following steps:
Step 1: The copyright registration application has to be filed in the concerned forms with the Copyright Registrar, mentioning the particulars of the work.
Depending on the type of work, separate copyright applications may have to be filed.
Our representatives will ask for basic details based on your copyright work. You will also need to send us three copies of your work and few signed documents including an authorization letter that we will send by email. If the work is unpublished, two copies of the manuscript can be sent, where one copy will be returned to the applicant with seal and the other will be retained confidential with the Copyright Office. Applicants can also choose to send only the extracts of the manuscript instead of the whole unpublished copy.
Step 2: The forms must be duly signed by the applicant and the application must be submitted by the Advocate under whose name Power of Attorney has been executed.
Our experts will then prepare the copyright registration application and submit the necessary forms with the Registrar of Copyrights electronically.
Step 3: Once the application is submitted online, you will be issued the Diary number.
Step 4: There is a waiting period of 30 days within which the Copyright Examiner reviews the application for potential discrepancies and/or objections.
Step 5: If discrepancy and/or objections are found, discrepancy notice will be issued and the same needs to have complied within 30 days from the date of issuance of the notice.
Step 6: Once the discrepancy has been removed or if there are no discrepancies or objections with the application, the copyright shall be registered and the Copyright Office shall issue the Extracts of Register of Copyrights (ROC) which is nothing but the Registration Certificate.
On completion of the copyright application, you will receive a diary number. Registration will take 12 months from this day. During this time, we may be asked for some clarifications on the same and/or some defects in the application and it will cost a further Rs. 1500 for responding and complying with the defects. Our representatives at Corporateraasta consulting will inform you of the changes in the status of your application throughout.
Documents Required for Copyright Registration
Personal Details
Name, Address & Nationality of the Applicant
Name, address and nationality of the author of the work
Nature of the applicant’s interest in the copyright – whether the applicant is the author of the work or the representative of the author
Copies of the original work
ID proof of the owner and Incorporation certificate if it is for business
Nature Of The Work
Class& Description of the Work
Title of the Work
Language of the Work
Date of Publication – Publication in internal magazines, like a company magazine or a research paper submitted to a professor does not count as publication.
Scope of Copyright Protection
The Copyright Act, 1957 prevents unauthorized use of any original literary, musical, dramatic, sound recordings, cinematograph and other artistic works. Both published and unpublished works can be copyrighted, and the copyright of the original work is reserved for the original creator. Copyright can also be registered for works that were published before 21st January 1958, that is before the Copyright Act came into existence.
Copyright protection of original literary, musical, dramatic, and artistic works lasts for the entire lifetime of the author. In addition, it also for another 60 years counted from the year following the death of the author. In the case of sound recordings, cinematograph films, photographs, posthumous publications (published post the death of the author), anonymous and pseudonymous publications, government works and works of international organisations.
Rights of the Copyright Owner
Under the Indian Copyright Act 1957, copyright protects the social, economic and legal interests of the author. The copyright owner is entitled to the following exclusive rights.
Right of Reproduction
The Copyright Act states that no third party can reproduce or make copies of the original work or part of the work unless the copyright owner has granted permission to do so. It restricts reproduction in the form of printing an edition of a work and recording sound and films.
Right of adaptation
The copyright creator can choose to use his work whichever way he wants. That is, he can create derivatives from the existing work or prepare a new work in the same form or different form based on the original work. The following actions define the term “adaptation” as per the Copyright Act:
Converting plays, movies, choreographic shows and other dramatic works into non-dramatic or literary works like poems, novels and books
Converting literary works and artistic works like sculpture, photography, paintings, drawings, etc into dramatic work
Modification or alteration of dramatic and non-dramatic work
Pictorial depiction of the work
Transcription of musical work
Right Of Communication To The Public is the main right.
Copyright owners can make their work available to the public by means of broadcast or wireless diffusion whether in any or more of the forms of signs or visual images.
Right Of Public Performance
The owners of musical work and artistic work can perform their works publicly. For example, a musician can play his piece or an actor can perform in his play for the masses. The artists can also choose to broadcast their performance in the digital platforms.
Right Of Paternity And Integrity
The Copyright Law grants the moral rights of paternity and integrity to the creators. The right of paternity or attribution means that the creator can claim authorship over his work and have it attributed to him. That is, whoever wishes to reproduce or adapt the original work has to give due credit to the author or else the author has the right to file a suit against the maker. For example, if a person wants to make a movie out of a book, he/she must duly acknowledge the author. Right of integrity protects the right of the holder and lets him claim damages when someone distorts, mutilates or modifies his work causing disreputation to his name and work.
Right Of Distribution
The copyright holder may distribute his work in any form through reproducing, selling, renting, leasing or lending. He can also assign specific rights to a person to either copyright the work partially or wholly or subject to certain limitations.
COPYRIGHT
Infringement
Meaning of Copyright
Infringement
Use of any copyrighted work without the permission of the owner amounts to copyright infringement. Infringement occurs when a person intentionally or unintentionally copies/uses the work of another without credit. Infringement is usually classified into two categories- primary infringement and secondary infringement.
Primary infringement is the actual act of copying, while secondary infringement includes unauthorised dealings like selling the pirated books, importing, etc. In the case of secondary infringement, knowledge of infringement is present with the infringer while in the case of primary infringement, knowledge may or may not be present.
When does Copyright
infringement occur?
In India, copyright infringement occurs when-
- Copies of copyrighted work are made for sale/hire without permission or authority, like in the case of online piracy
- A copyrighted work is performed in a public place
- Infringing copies are distributed for the purpose of trade and personal gains
- Public exhibition of infringing copies by way of trade prejudicial to the owner
- Infringing copies are imported from another country into India
What does not amount
to infringement?
There are certain acts that do not amount to copyright infringement. However, there are some conditions that must be fulfilled to ensure that copyright infringement has not occurred. These conditions include the use of a copyrighted work for research, study, criticism, review, news reporting, use in a library, schools, and legislations. Such uses of copyrighted work are permitted without the need to obtain permission from the copyright owner.
Other acts that do not amount to copyright infringement in India are:
- Fair use: An important defence against copyright infringement, defined under Section 53 of the Copyright Act. The burden of proof of an act of copyright infringement is on the owner
- Connected judicial proceeding
- Performance by an amateur club or society, if the performance is in front of a non-paying audience
- Making sound recordings of literary, dramatic, or musical works under certain conditions
Actions against
Copyright Infringement
The key requirements for taking an action against copyright infringement include:
- Proof of ownership of copyright
- Substantial similarity between the original and the infringed copy
- Copying amounts to improper appropriation
The first thing to do is to send a legal notice for copyright infringement to the person or entity guilty of copyright violation. In the case of online copyright infringement, a takedown notice may be sent to the person or company involved. A copyright owner can take several actions against copyright infringement under the civil and criminal laws.
The civil actions against copyright infringement are given under Section 55 of the Copyright Act, 1957. Under a civil action against copyright infringement, the court can grant the following reliefs:
- Interlocutory Injunction: It is the most important relief as it prevents the infringer from doing anything that amounts to copyright infringement.
- Financial Relief: Under Section 55 and Section 58 of the Copyright Act, the copyright owner can claim three remedies- profits which lets the owner get the profits made through an unlawful act, compensatory damages and conversion damages calculated according to the value of the infringing article.
- Anton Pillar Order: It restrains the infringer from dealing in infringing goods or destroying them. It also allows the copyright owner and his lawyer to enter and search the premises of the infringer and take goods into safe custody. Under this order, the infringer is required to disclose the names of all the suppliers and customers of infringing goods.
- Mareva Injunction: It is an order under which the court gets temporary custody of infringing goods, thereby preventing any chances of disposal.
- Norwich Pharmacal Order: It is passed to discover information from a third party.
What happens if you
Infringe a Copyright?
Under the Copyright Act, 1957, criminal action against copyright infringement can also be taken. The person found guilty of copyright infringement would be liable for punishment for imprisonment for not less than 6 months and up to 3 years, or fine of at least Rs. 50,000 to Rs. 2 lakhs.
Under the criminal action taken against copyright infringement, a search and seizure of infringing goods may also be ordered by the court and the infringing goods may be delivered to the actual copyright owner. To file a case against copyright infringement, find a professional to fight your case from our list of top copyright lawyers.
How to Avoid Copyright
Infringement?
Here are some tips from the best copyright lawyers to avoid copyright infringement:
- If you are not using an original literary, artistic or musical work, it is important to check all the licenses and permissions. Many copyright owners allow their work to be used without the need for direct permission, whereas, most copyright owners allow the use of their work only after you obtain a license or permission from them.
- Make sure that you use a copyrighted work under the ‘fair use’ policy for educational or research purposes.
- When getting a copyright for your work, consult a copyright lawyer to make sure that you are not infringing an already existing work.