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TRADE MARK We are specialised in developing, obtaining, commercialising, maintaining, and litigating trademarks in India and abroad. When a client is desirous to use and/or register a trademark or a company name in India, we assist them to evaluate the registrability of the mark and the potential risk in using that mark. We also provide trademark and company name search service, as well as offer professional opinion on other relevant issues. TRADE MARK is a visual representation attached to goods and services for the purpose of indicating their TRADE ORIGIN. TRADE MARK is a mark capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. The Trade Marks Act 1999 classifies business and services in 42 classes. (For Example Textile industry Class 24, Jewellery Class 14 etc.. ). We help you to search and register your Trade Mark in appropriate classes. The biggest achievement of the Indian Trademark Office has been to reduce the time frame for Registration of a trademark. The time frame for Registration of Trade Marks has been reduced significantly to about 10 to 14 months, assuming a smooth registration. Filing and Registering Under the Indian Trademark Act, which uses International Class of Goods and Services* it is essential to file a trademark application for registration in proper class(es) using acceptable description of goods/services to obtain registration quickly. Due to the large volume of applications filed at the Indian Trade Mark Registry, the delay caused by an office action is substantial. Accordingly, a proper strategy in terms of filing and prosecuting trademark applications remains critical in maintaining an effective trademark portfolio. We provide competent, quality services in preparing and filing trademark applications and written responses to Examiner's preliminary objections. Opposition/Cancellation/Rectification Actions/Appeals Once a trademark is registered, it is deemed valid until it is cancelled through a cancellation action. Upon discovery of an application for a conflicting mark, it is essential that a strong and vigorous opposition be filed to block that application from effecting registration. The opposition procedure warrants a thorough and professional assistance by experienced trademark attorneys, which we offer. In most of the cancellation actions filed in India, the ground for cancellation is based on non-use of a registered mark. Two major grounds for invalidating a trademark registration are (i) conflict with previously registered or well-known mark and (2) lack of inherent registrability. Our services are available in this area also. We are fighting in a leading matter in Intellectual property Appellate Board against Harvard University USA <<<<<>>>>> Licensing/Assignments, Change of Names & Recorders Recordal of trade mark licenses are not mandatory under Indian Trade Marks Law, unless the marks are registered in which case a Registered User Agreement can be recorded with the Registrar of Trade Marks. It is advisable to record such Registered User Agreement or otherwise, in contested proceedings the situation can become complicated as the User may not have a right to initiate legal proceedings independently. Similarly, when ownership of a trademark registration/application or a corporation changes due to assignments or merger, and when company name changes, it is critical to properly register the change at the Trademarks Registry to give proper effect to the trademark registration and/or to establish proper evidence of use in the event of a cancellation action. We actively provide services in these areas. Combating Counterfeiting & Litigation We assist clients in anti-counterfeit programmes designed to identify and eliminate piracy and counterfeiting activities. Our services in this area include obtaining Search and Seize orders, conducting and defending actions for infringement of trademarks, obtaining injunctions, criminal and civil suits in close co-operation with professional litigators. *Service Marks Registration in India The new Trade Marks Act 1999 and Trade Marks Rules 2002 have come into force with effect from 15 September, 2003. This will make it possible to register Service Marks in India. Trademark Registry has started accepting service mark applications from September 15, 2003. We, at TRADE IMPRESSIO have a wealth of experience of PCT filing and we are happy to provide advice and services. Please feel free to Contact Us for further information.PATENT We provide services in preparing and filing patent applications for registration. We can provide our clients with comprehensive knowledge in drafting descriptive specifications and claims. We also provide services for conducting patent search, paying annuities, preparing and filing written arguments and appeals, patent administration, and infringement litigation PATENT in INDIA The Indian law of patents is enshrined in the Patents Act, 1970. The Act seeks to provide for legal protection for inventions. The rights granted under the Act, are operative in the whole of India. A PATENT is an exclusive monopoly granted by the Government to an inventor over his invention for a limited period of time. It provides an enforceable legal right to prevent others from exploiting an invention. Invention as defined under the Act to mean a new product or process involving an inventive step and capable of industrial application. Generally, there are two types of Patents. The process and product patent. Process patent essentially covers a new process used in the production of a product while a patented product means a product which is a patented invention, or in relation to a patented process, a product. Patents represent one of the powerful intellectual property rights. The registration of a patent confers on the patentee the exclusive right to use, manufacture or sell his invention for the term of the patent. It means that the invention cannot be commercially made, used, distributed or sold without the patentee's consent. The patent rights can usually be enforced in a court of law. To be patentable, an invention must, in general, satisfy certain criteria. The invention must be of industrial applicability, must be new and must show an inventive step which could not be deduced by a person reasonably skilled in the field. Above all, its subject matter must be accepted as "patentable" under law. As for example, Inventions which are frivolous or claim anything contrary to well established natural laws are not patentable. There are also other specific categories of inventions which are declared as non-patentable. An inventor or any other person/company assigned by the inventor can apply and obtain the patent over the invention. A patent is obtained by the inventor or his assignee by filing an application with the appropriate office of the patent office in stipulated forms and fees as required by the Act. An Indian resident can file application for patent at the appropriate Patent Office under whose jurisdiction he resides or has his principal place of business. For non residents, the address for service in India or principal place of business of his agent determines the appropriate patent office where applications for patent can be filed. It is prudent to conduct searches as early as possible to avoid spending time and money re-inventing a known matter. A patent is not granted to an invention if it is already available with the public either in the form of published literature or common knowledge. The process of patenting typically involves conducting prior art searches to distinguish the invention and develop a description that illustrates the best method of working the invention. The description of the invention is called specification. Depending upon the sufficiency of the description a specification may be either provisional or complete Specification. A provisional specification is often the first application filed in respect of an invention, and usually contains only a brief description of the invention. It need not contain claims. Compared with the provisional, the complete specification contains the full description of the invention, and the best method of making the invention work. The complete specification comprises a title, field of invention, the background of the invention, the description of the related art, drawbacks of the prior art, the summary of the invention, the brief description of the figures, the detailed description of the preferred embodiments, claims and abstract. Complete specification must be filed within 12 months from the date of filing of the provisional specification. Claims are the most important component in the patent specification as it is the legal operative part which define and determine the legal protection sought for. The extent of patent protection for an invention shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims. The procedure for the grant of a patent in India starts with filing of the patent application along with the prescribed fees at the appropriate office of the patent office followed by filing of request for examination in the prescribed format (present time limit within 48 months), after the publication of the application. Presently, application for patent is not open to open to public for 18 months from the date of filing or date of priority, though the applicant can request for early publication. The applications are examined substantively and a first examination report stating the objections is communicated to the applicant. Application may be amended in order to meet the objections. Normally all the objections must be met within 12 months from the date of first examination report. If the applicant does not comply with the objection, the application will be abandoned. Upon complying the requirements the application is published in the Official Journal. At that time, opposition can be filed on limited grounds, but hearing is not mandatory. Patent will be granted if the application is found to be in order. Then, the application and other related documents will be open for public inspection. Thereafter, at any time after the grant but before the expiry of a period of one year from the date of publication opposition on substantive grounds is available. The whole process typically takes at least two years. The term for patents in India is 20 years from the date of filing of the application for the patent. It is the responsibility of the patentee to maintain an issued patent by paying the annuities until the patent expires. After 20 years term the invention claimed in the patent falls into the public domain. Restoration of a patent that lapses due to non-payment of renewal fees can be made within one year of lapse. However, certain limitations will be imposed on the rights of the patentee when the patent is restored. It is the sole responsibility of the patentee to see that his patent is not being infringed. It is the patentee's duty to file a suit of infringement against the infringer. The reliefs which may be usually awarded in such a suit are – i. Injunctions whether interim or final. ii. Damages or account of profits. There is no international or world patent. An inventor has to file an application in each country, where he seeks to protect his invention. However, there are regional and/or International treaties to facilitate the procedure to seek protection like Patent co-operation Treaty (PCT) or European Patent Convention (EPC).DESIGN Legislation The Indian law of designs is enshrined in the Designs Act, 2000. The Act seeks to provide for the registration of designs in India. The rights granted under the Act are operative in the whole of India. What is a Design A DESIGN is defined as “the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle of construction or anything which is in substance a mere mechanical device and does not include any trademark or property mark or artistic work” . Design Act protects only designs that is aesthetic in nature. They may be decorative elements added to the article or they may be part of very shape or configuration. Novelty and originality are important criteria in a design for registration. In addition, only those designs that are applied to an article by an industrial process will be protected. Classification* Almost all jurisdictions including India follow Locarno Classification for registration of design comprising 32 classes, numbered 1 to 31 and an additional class 99 to include articles not falling under the aforesaid 31 classes. Most of the classes are further divided into sub classes. Design applications must be filed in a particular class depending upon the predominant material with which the article is made or is capable of being made. Rights conferred by registration The registration of a design confers the proprietor copyright in the design for the period of registration. Copyright means the exclusive right to apply the design in respect of the article for which it is registered. Who can apply for a Design An inventor or any other person/company assigned by the inventor can apply and obtain the registration for the design. Filing and Prosecuting Design Applications An application for design on Form-1 accompanied by four copies of representation of the design and prescribed fee of Rs. 1000/- is filed at one of the four office of the Patent Office located at, Kolkata, Mumbai, Delhi and Chennai. The Designs Office initially provides a filing number and filing date and issues a filing receipt, which is sent to the applicant or his attorney. Thereafter the application is formally examined by the Designs Office. Defects will be communicated to the applicant. Once the application is found to be in order it is accepted and the Designs Office issues the registration certificate. Duration of registration The term of a design registration is initially for a period of ten years. The renewal is possible for further period of 5 years. Remedies for Infringement It is the sole responsibility of the proprietor to see that his design is not being infringed upon by others. It is the proprietor's duty to file a suit of infringement against the infringer. The relieves which may be usually awarded in such a suit are – • Injunctions whether interim or final. • Damages. Use of Design in Foreign Countries Design rights are granted on a country-by-country basis. An Indian registration provides protection only in India and its territories. If the proprietor of a design wishes to protect a design in other countries, the owner must seek protection in each country separately under the relevant laws. International design protection There is no system as yet wherein a single design application is sufficient to protect the design right internationally. However, Paris convention * provides certain privileges to member countries in design registration. A party who files design application in a member state of the Convention, such as India, can within six months of that filing date file applications in other member countries claiming the priority of the first application. If such a design is accepted for registration it will be deemed to have registered from the same date on which the application is made in the home country. * Paris Convention is the most basic and important multilateral convention relating to intellectual property, including trademarks, of which India is a member. It defined the meaning and scope of industrial property rights protection and established basic principles and rules. * Classification for the Purposes of the Registration of Designs According to the Locarno Classification system the Designs Register is divided into 32 classes. The application for design has to be filed in a particular class to obtain protection in that class. List of classes : CLASS 1 Foodstuffs. CLASS 2 Articles of clothing and haberdashery. CLASS 3 Travel goods, cases, parasols and personal belongings, not elsewhere specified. CLASS 4 Brush ware. CLASS 5 Textile piece goods, artificial and natural sheet material. CLASS 6 Furnishing. CLASS 7 Household goods, not elsewhere specified. CLASS 8 Tools and hardware. CLASS 9 Packages and containers for the transport or handling of goods. CLASS 10 Clocks and watches and other measuring instruments, checking and signaling instruments. CLASS 11 Articles of adornment. CLASS 12 Means of transport or hoisting. CLASS 13 Equipment for production, distribution or transformation of electricity. CLASS 14 Recording, communication or information retrieval equipment. CLASS 15 Machines, not elsewhere specified. CLASS 16 Photographic, cinematographic and optical apparatus. CLASS 17 Musical instruments. CLASS 18 Printing and office machinery. CLASS 19 Stationary and office equipment, artists’ and teaching materials. CLASS 20 Sales and advertising equipment, signs. CLASS 21 Games, toys, tents and sports goods. CLASS 22 Arms, pyrotechnic articles, articles for hunting, fishing and pest killing. CLASS 23 Fluid distribution equipment, sanitary, heating, ventilation and air-conditioning equipment, solid fuel. CLASS 24 Medical and laboratory equipment. CLASS 25 Building units and construction elements. CLASS 26 Lighting apparatus. CLASS 27 Tobacco and smokers’ supplies. CLASS 28 Pharmaceutical and cosmetic products, toilet articles and apparatus. CLASS 29 Devices and equipment against fire hazards, for accident prevention and for rescue. CLASS 30 Articles for the care and handling of animals. CLASS 31 Machines and appliances for preparing food or drink, not elsewhere specified. CLASS 99 Miscellaneous.Legislation The Indian law of copyrights is enshrined in the Copyright Act, 1957. The Act seeks to provide for the registration of copyrights in India. The object of copyright law is to encourage authors, artists and composers to create original works by rewarding them with exclusive right for a fixed period to reproduce the works for commercial exploitation. What is Copyright? COPYRIGHT is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work. Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work, thereby protecting and rewarding creativity. Copyrights subsist in following class of works: a) Original literary, musical, dramatic and artistic works. b) Cinematograph films c) Sound recordings The rights vary according to the class of work. Copyright also subsists in translations, abridgements or compilations of such works, provided the permission of the Copyright holder is obtained. Computer programs are considered as literary works and are protected under the Copyright Act. There is no copyright in an idea. Rights conferred by registration In general, registration is voluntary. Copyright exists from the moment the work is created. Under Indian law, registration is not required either for acquiring copyright or for enforcing it in an infringement action. However, registration has evidentiary value in a court of law with reference to dispute relating to ownership of copyright. Author of copyright Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright, unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the provider of the work is considered to be the author. Filing and Prosecuting Copyright Applications An application for copyright ( Including Statement of Particulars and Statement of Further Particulars) at Copyright Office of the Department of Education, New Delhi. The Copyright Office initially provides a filing number and filing date and issues a filing receipt. Thereafter the application is formally examined by the Office. Defects will be communicated to the applicant counsel. Once the application is found to be in order it is accepted and the Copyright Office issues the registration certificate. Duration of registration. The duration granted for works of copyright varies depending on the type of work. Literary or musical works or artistic works, other than photographs, have a life span, which extends for the life of the author and 60 years from the end of the year in which the author dies. However, if the work has not been published, performed, or offered for sale or broadcast during the life of the author, the copyright protection shall continue for a period of 60 years from the end of the year in which any of these acts are done relating to the work. Cinematograph films, photographs and computer programs are protected for 60 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or published, or, failing such an event, for 60 years from the end of the year in which the work is made. Sound recordings are protected for 60 years from the end of the year in which the recording is first published. In the case of anonymous or pseudonymous works, the copyright is for 60 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or from the end of the year in which it is reasonable to presume that the author died, which ever term is shorter. Use of the "©" symbol Anyone who claims copyrights in a work can use copyright notice to alert the public of the claim. It is not necessary to have a registration to use the designations though it is highly advisable to incorporate a copyright notice like the symbol, letter "c" in a circle or the word "Copyright" followed by name of copyright owner and year of first publication. For example, © Corporate pages Remedies for Infringement It is the sole responsibility of the owner to see that his copyright is not being infringed upon by someone else. It is the owner's duty to file a suit of infringement against the infringer. The relieves which may be usually awarded in such a suit are: – I) Injunctions whether interim or final. ii) Damages. Criminal action also can be taken on the basis of copyright registration. The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh. International copyright protection India is a member of both Berne and Universal Conventions and Indian law extends protection to all copyrighted works originating from any of the convention countries. Foreign works first published in a country which is a member of either of the Conventions would be accorded the same copyright protection in India as Indian works without undergoing any formalities, on the assumption that the home country accords reciprocity to Indian works ________________________________________
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