labour law first half

8/6/2019 Labour Law First Half

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SEBI act 1992

INTRODUCTION: in theThe securities and exchange board of India Act 1992 was amended in the year 1995,

1999, and 2002, to meet the requirement of changing needs of the securities market andresponding to the development in the securities market. The various malpractices and unfair

trade practices adopted by the companies, brokers, bankers, and others involved in the

securities market had led to erosion of investors confidence. The govt and the stock exchanges

had also failed to protect the interest of investors because of the lack of proper panel.

Realizing this, the SEBI was established by the govt in April 1988 as a

supervisory body under the administrative control of finance ministry to regulate and promote

securities market.

Features of SEBI

1. The SEBI shall be a body of corporate perpetual succession and common seal.2. The head office is at Mumbai and the board had established its offices at other places in

India.

3. The board shall consist of the following members:a) A chairman,b) Two members from among the officials of the Ministers of the Central govt dealing with

finance and law,

c) One member from amongst the officials of RBI,d) The two other members shall be appointed by the central govt.

4. The general superintendence, director and management of affairs of the board shall

vest in board of members.

5. The govt can prescribe terms of office and other conditions of the chairman and othermembers of the board.

6. It is the primary duty of the board to protect the interest of the investors in securitiesand to promote the orderly growth of the security market.

OBJECTIVES:

1. To safeguard the investment of the investors.2. To regulate and develop capital and securities market.3. To fix the minimum application amount of Rs. 2000.


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4. To regulate the investment plan.5. Regulation of the shares of the company.6. To fix the minimum capital limit for the sale of shares.

7. To regulate the working.8. To check inside trading of the securities.9. Fixing up the fees in stock exchange for the brokers.10.Calling information from underwriters and make the enquiry.11.To supervise the working of various organization dealing in securities market.

POWERS OF SEBI

1. SEBI can investigate in any matter relating to stock exchange.2. SEBI can ask for any document relating to the investigation of the enquiry.3. Suspension and cancellation of registration of any broker if found at mistake.4. SEBI can file any complaint without the prior permission of the court.5. Monetary fines can be imposed by SEBI

FUNCTIONS OF SEBI

1) Regulating the business in stock exchange and any other securities market.2) Registering and regulating the working of stock brokers, share transfer agent, bankers

who may be associated with securities market in any manner.

3) Registering and regulating the working of collective investment schemes.4) Promoting and regulating self regulating the organization.5) Prohibiting fraud and unfair practices relating to the security market.6) Calling for information, inspection and conducting audits.7) Regulating acquisition of shares and take over of companies.

ORGANISATION OF STOCK EXCHANGE IN INDIA

1. There are 23 stock exchanges functioning in India including Over The Counter Exchangeof India (OCTEI) and National Stock Exchange (NSE).


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2. Bombay Stock Exchange established in 1875 and is the oldest one in Asia.3. Since 8th August BSE is a public limited company.4. With about 10,000 listed companies, India holds the unique distinction of having the

largest number of listed companies in the world.

5. The policy of the govt is that there shall be only one stock exchange in one area.6. Each stock exchange is managed by an executive committee/ council of mgmt .

MAJOR STOCK EXCHANGES OF INDIA

BOMBAY STOCK EXCHANGE:

1. BSE is one of the oldest stock exchange of India & Asia.2. It is also one of the biggest stock exchange of the world.3. It is said to be the nerve of the Indian Economy, which reveals the health of the

economy.

4. BSE had a turnover of Rs. 68028 crs and a market capitalization of Rs 9,12,842crs in1999-2000.

5. Its daily turnover had increased from Rs 11 crs in 1979-1980 to Rs 4587 crs in 2000-2001.

6. It was established in 1857 and at that time its membership fee was Re 1.7. It plays pivotal role in the development of the countrys capital market.

NATIONAL STOCK EXCHANGE

1. NSE was incorporated in Nov 1992 with an equity capital of Rs 25 crs.2. NSE operates into different segments as Wholesale Debt Market, capital market ,

derivatives market.

3. WDM is concerned with trading in Govt. Services, bonds etc.4. Capital market is concerned with equity and corporate debt instruments by both entities

and individuals.

5. The main objective of NSE is to establish nation wide trading facilities.6. To facilitate equal access to investors across the country.7. To provide fairness, efficiency and transparency to the securities.8. To meet International Securities Market Standards.


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Stock Exchange Operations.

1. BULLS & BEARS:A bull is a buyer in the stock market. He is optimistic about the security prices. A bear is

a seller of securities.

2. Order/Customer Driven & Quote/Dealer Driven Trading System:Trading in a stock exchange takes place on the basis of auction system on a trading floor

. In an order driven system customers buys and sells orders and reach a central point where

they are matched. In a quote driven system dealers compete to give the best price.

3. MARKETMAKER:Market maker makes both bid and offer at the same time. The quoted price which they

would charge from a buyer is offer price The quoted price which they would pay to a seller is

bid price.


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The Environment Protection Act 1986

Objectives:

The main objective of the act is to provide for the protection and improvement ofenvironment and formatters connected therewith

To co-ordinate the activities of the various regulatory agencies already inexistence.

To appoint environment officers to check environmental pollution. To improve the quality of life by protection of environment. Establishing environmental laboratories. To protect the forests and wildlife in the country

Definition of Environment (Sec-2a)

Environment it includes water, air and land and the inter relationship which existsbetween water, air and land and human being, other living creatures, plants, micro-

organisms and property.

Important terms

Hazardous substance

It means any substance or preparation which, by reason of its chemical properties orhandling, is liable to cause harm to human beings, other living creatures, plant, micro-organism,

property or the environment.

Occupier

In relation to any factory or premises, means a person who has, control over the affairs

of the factory or the premises and includes in relation to any person in possession of the

hazardous substance.

Environment pollutant (sec.2 b)

It means any solid, liquid or gaseous substance present in such concentration as may be

injurious to environment

Environment pollution (sec.2c)

It means the presence of any environmental pollutant in the environment. It includes all

extraneous materials that are harmful to human being ,animals and plants life.


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Type of Environmental Pollutions

Sound PollutionMan-made-noises-from machines automobiles, trains, planes, explosives firecrackers

Air Pollutionair getting polluted by industries like thermal power plants, cement, steel, and mines by

emitting pollutants into the air.

Water pollutionChemical contained in water that affects the health of all forms of life in and associated

the water

Soil pollutionDisposal of industrial waste, plastic items on soil that leads to decrease in fertility of the

soil

Prevention and control of pollution (sec-3)

Standard of quality of air, water and soil for various areas and purposes Maximum permissible level of pollutants for different areas Procedures and safeguards for handling of hazardous substances Prohibition and restrictions on handling of hazardous substances Prohibition and restrictions on location of industries Procedures and safeguards for the prevention of accidents which ay cause

environmental pollution

Measures by Central Government

Preventing emissions in excess of standards (sec-7) Procedure for handling hazardous substance (sec-8)

Duties of persons creating environmental pollution (sec-9)

Power of entry and inspection (sec-10) Power to take sample and procedure (sec-11) Establishment of environmental laboratories (sec-12) Appointment of government analyst (sec-13).


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Report of analysis (sec-14) Penalty (sec-15).

Penalties (intended to be harsh)

(Sec - 15) deals with individual penalties

The penalties with a term of imprisonment extending up to five years or with a fine up

to Rs.1,00,000/- or both

(Sec 16) deals with offences by companies. Company as well as person in-charge.

(Sec 17) deals with offences by government department. Head of the department


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Introduction of Information Technology Act 2002

What is the necessity for such a law?

Society is becoming increasingly technology-oriented. Nothing moves without the aid of

computers and telecommunications, these days. As part of the National Information

Technology Policy (NITP) the Government wants to deal with the citizens electronically. Lot of

developments are taking place in regard to E-Commerce and EBusiness in India. To avoid any

legal complications or litigations in such financial transactions, the Government had felt the

need for Cyber Laws. Banking is going to change a lot with the advent of this Act. It has ushered

in a lot of transformation in Banking.

Information technology is one of the important law relating to Indian cyber laws. It had passed

in Indian parliament in 2000. This act is helpful to promote business with the help of internet. It

also set of rules and regulations which apply on any electronic business transaction.

Due to increasing crime in cyber space, Govt. of India understood the problems of internet user

and for safeguarding the interest of internet users, this act was made.

The following are its main objectives and scope:-

1. It is objective of I.T. Act 2000 to give legal recognition to any transaction which is done by

electronic way or use of internet.

2. To give legal recognition to digital signature for accepting any agreement via computer.

3. To provide facility of filling document online relating to school admission or registration in

employment exchange.

4. According to I.T. Act 2000, any company can store their data in electronic storage.

5. To stop computer crime and protect privacy of internet users.

6. To give legal recognition for keeping books of accounts by bankers and other companies in

electronic form.

7. To make more power to IPO, RBI and Indian Evidence act for restricting electronic crime.

Scope

Every electronic information is under the scope of I.T. Act 2000 but following electronic

transaction is not under I.T. Act 2000

1. Information technology act 2000 is not applicable on the attestation for creating trust via

electronic way. Physical attestation is must.


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2. I.T. Act 2000 is not applicable on the attestation for making will of any body. Physical

attestation by two witnesses is must.

3. A contract of sale of any immovable property.

4. Attestation for giving power of attorney of property is not possible via electronic record.

What are the main features of this Act?

Because of this Act, electronic records like, floppies, compact discs, microfilms, magnetic films,

hard disk or any such electronic devices, can be produced in a court of law as evidence. From

now onwards, any evidence need not be in a typewritten, handwritten or

printed paper - it can be in an electronic form. With the advent of this Act, any document or

record or information can be retained in the electronic form. Now this Act has come into effect,

an electronic record can be affixed with a Digital Signature. Heavy penalty can be imposed forthose indulging in computer crimes and hacking. If any person transmits obscene material in an

electronic form, he/she can be punishable with imprisonment and/or heavy penalty.

Highlights the main chapters of I.T. Act 2000 or its main provisions:-

There are 13 chapters in law and all provision is included in this chapters.

1. Chapter II

Any contract which is done by subscriber. If he signs the electronic agreement by digitalsignature. Then it will be valid. In case bank, the verification of digital signature can be on the

basis of key pair.

2. Chapter III

This chapter explains the detail that all electronic records of govt. are acceptable unless any

other law has any rules regarding written or printed record.

3. Chapter IV

This chapter deals with receipts or acknowledgement of any electronic record. Every electronic

record has any proof that is called receipt and it should be in the hand who records electronicway.

4. Chapter V

This chapter powers to organization for securing the electronic records and secure digital

signature. They can secure by applying any new verification system.


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5. Chapter VI

This chapter states that govt. of India will appoint controller of certifying authorities and he will

control all activities of certifying authorities. Certifying authority is that authority who issues

digital signature certificate.

6. Chapter VII

In this chapter powers and duties of certifying authority is given. Certifying authority will issue

digital signature certification after getting Rs. 25000. If it is against public interest, then C.A. can

suspend the digital signature certificate.

7. Chapter VIII

This chapter tells about the duties of subscribers regarding digital signature certificate . It is the

duty of subscriber to accept that all information in digital signature certificate that is within his

knowledge is true .

8. Chapter IX

If any body or group of body damages the computers , computer systems and computer

networks by electronic hacking , then they are responsible to pay penalty uptoRs. 1 crore . Fore

judgment this , govt. can appoint adjucating officer .

9. Chapter X

Under this chapter, cyber regulation appellate tribunal can be established. It will solve the cases

relating to orders of adjudicating officers.

10. Chapter XI

For controlling cyber Crime, Govt. can appoint cyber regulation advisory committee who will

check all cyber crime relating to publishing others information. If any fault is done by anybody,

he will be responsible for paying Rs. 2 lakhs or he can get punishment of 3 years living in jail or

both prison and penalty can be given to cyber criminal.

11. Chapter XII

Police officers have also power to investigate dangerous cyber crime under IPC 1860 , Indian

Evidence Act 1872 and RBI Act 1934 .


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Advantages of I.T. Act 2000

1. Helpful to promote e-commerce

Email is valid

Digital signature is valid.

Payment via credit card is valid.

Online contract is valid

Above all things validity in eye of Indian law is very necessary. After making IT act 2000 , all

above things are valid and these things are very helpful to promote e-commerce in India .

2. Enhance the corporate business

After issuing digital signature, certificate by Certifying authority, now Indian corporate business

can enhance.

3. Filling online forms :-

After providing facility, filling online forms for different purposes has become so easy.

4. High penalty for cyber crime

Law has power to penalize for doing any cyber crime. After making of this law, nos. of cyber

crime has reduced.

Shortcoming of I.T. Act 2000

1. Infringement of copyright has not been included in this law.

2. No protection for domain names.

3. The act is not applicable on the power of attorney, trusts and will.

4. Act is silent on taxation.

5. No, provision of payment of stamp duty on electronic documents.


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PATENT ACT 1970

Concept of Patent

Generally speaking, Patent is a monopoly grant from the Government - which

confers on the Grantee for limited period of time - the exclusive right of making, selling and

using the invention - for which a patent is granted and also of authorising others to do so. The

word monopoly , is derived from Greek words mono which means alone and polein,

which means sale.

ADVANTAGES OF PATENT :-

A Person may spend heavily on his research and development, before he invents

something new and useful. This is his Intellectual Property.

To safeguard it, there are two ( 2 ) options. They are :-

1. Keep the details of the invention secret - so that no one can use it, and

2. Disclose all the details, - but get fair payment for the intellectual property.

In India , we adopted the first method in ancient times, as there was no concept

of patent for intellectual property. The result was that the people did not disclose their

knowledge. The result was further - that the advances made by the ancient Indians - in Science

and Medicine could not be sustained, as the concerned knowledge was not communicated.

Thus, our Ayurveda could not make progress. On the other hand, Allopathy could make

tremendous progress - as the knowledge pertaining to the same was communicated.

Therefore, the system of patenting - has the following advantages , namely-

1. it encourages inventions,

2. reduces the risk of industrial espionage, and

3. helps in spread of knowledge.

The (British) Patent And Designs Act, 1907, became the basis of the Indian

Patents and Designs Act, 1911. The Provisions relating to Patent in that Act - have been

repealed by the Patent Act, 1970, a consolidating law enacted after independence.

DIFFERENCE between PATENT & TRADE SECRET

Patents are not trade Secrets. Coca Cola formula - is a trade secret, which is

not published. However, Patent has to be brought to the knowledge of the public and has to be

published. In return, the Inventor gets exclusive rights - for specific period for commercial

exploitation of his own idea, with reward for creative efforts.

* * *


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Patent Law and Enforcement

The object of Patent law is to encourage - Science Research, new

Technology and Industrial Progress. The fundamental principle of Patent Act, 1970 - is that a

Patent is granted - only for an Invention which is new and useful.

It shall pass the following Tests , namely-

1. It should be new. ( Test of Novelty)

2. It should be useful ( Test of Utility)

3. It should be an invention ( Test of Non- Obvious )

4. It should be a manner of manufacture ( Test of Industrial Application )

5. It should be marketable ( Test of Vendibility)

Scheme of the Act : The Act consists of 24 Chapters - containing 163 Sections and oneSchedule.

* * *

Definitions - Sec. 2

D/1 Sec. 2(ab) - Assignee :- includes

an Assignee of the Assignee and the Legal Representative of a deceased assignee

and references to the assignee of any person include references to the assignee of the legal

representative or assignee of that person;

* * *

D/2 Sec. 2(ac) - Capable of industrial application :- in relation to an Invention, means

that the invention is capable of being made or used in an Industry ;

* * *

D/3 Sec. 2(c) - Convention Application means an application made for a Patent - by virtue

of Sec 135.

* * *

D/4 Sec. 2(d) - Convention Country :- means

a Country or a Country - which is member of a Group of Countries or a Union of

Countries or an Inter-Governmental organisation - notified as such under Sub-Section (1) of

Section 133 ;


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* * *

D/5 Sec. 2 (f) - ExclusiveLicence :- means

alicence from a Patentee - which confers on the licensee, or on the licensee and

persons authorised by him, to the exclusion of all other persons ( including the Patentee ) any

Right - in respect of the patented invention and the exclusive licensee shall be construed

accordingly.

* * *

D/6 Sec. 2(g) - Food :-means

any article of nourishment for human consumption and also includes any

substance - intended for the use of infants, invalids or convalescents - as an article of food or

drink;

* * *

D/7 Sec. 2(j) - invention :-means

anew product or process involving an inventive step and capable of industrial

application ;

* * *

D/8 Sec. 2(ja) - Inventive step :-means

a feature that makes the invention not obvious to a person skilled in the art ;

* * *

D/9 Sec. 2(l) - Medicine or Drug :-includes

(i) all medicines - for internal and external use of human beings or animals,

(ii) all substances - intended to be used for or in the diagnosis, treatment,

mitigation, or prevention of diseases in human beings or animals,

(iii) all substances - intended to be used for or in the maintenance of public health or

the prevention or control of any epidemic diseases among human beings or animals,

(iv) insecticides, germicides, fungicides, weedicides and all other substances -

intended to be used for the protection or preservation of plants,

(v) all chemical substances - which are used as intermediates - in the preparation or

manufacture of any of the medicines or substances referred to.

* * *


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. Not - Inventions etc. - Sec. 3, 4, 5& 6

E/1 WHAT are NOT INVENTIONS - Sec. 3 :-

The following 15 are not Inventions within the meaning of the Act, namely-

1. an invention - which is frivolous or which claims anything obviously contrary to wellestablished natural laws,

2. an invention - the primary or intended use or commercial exploitation of which could be

contrary to public order or morality or which causes serious prejudice to human, animal or

plant life or health or to the environment ;

3. the mere discovery - of a scientific principle or the formulation of an abstract theory ( or

discovery of any living thing or non-living substance occurring in nature ).

4. the mere discovery - of any new property or new use for a known substance or of the

mere use of a known process, machine or apparatus unless such known process results in a newproduct or employs at least one new reactant,

5. a substance obtained - by a mere admixture resulting only in the aggregation of the

properties of the components thereof or a process for producing such substance,

6. the mere arrangement or re-arrangement or duplication of known devices - each

functioning independently or one another in a known way,

7. a method of agriculture or horticulture,

8. any Process - for the medicinal, surgical, curative, prophylactic or other treatment of

human beings or any process for a similar treatment of animals or plants - to render them freeof disease or to increase their economic value or that of their product.

9. plants and animals - in whole or any part thereof other than micro organisms but

including seeds, varieties and species and essentially biological processes - for production or

propagation of plants and animals ;

10. a mathematical or business method or a computer program or algorithms ;

11. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever -

including cinematographic works and television productions ;

12. a mere scheme or rule or method of performing - mental act or method of playing game

13. a presentation of information ;

14. topography of integrated circuits ;

15. an invention which, in effect, - is traditional knowledge or which is an aggregation or

duplication of known properties of traditionally known component or components.


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a. any Person - claiming to be the true and first Inventor of the Invention,

b. any Person being the Assignee of the Person - claiming to be the true and first Inventor -

in respect of the right to make such application, and

c. the Legal Representative of any deceased person - who immediately before his death

was entitledto make such an Application.

Note : - An application ( as above ) - may be made by any of the persons referred to - either

alone or jointly with any other person.

H/2 CONDITIONS ofPATENT - Sec. 47 :-

All Patents - are subject to the following 4conditions, namely

1. The Govt can import - any Machine, Apparatus or Other Article or any article made by

using any Process, - for which the Patent is granted, - for its own use,

2. ANY PROCESS - in respect of which the Patent is granted may be used by (or) on behalf

of the Government - for the purpose -merelyof its OWN use,

3. Any Machine, Process, Apparatus etc., can be made or used by any Person - for merely

experiment or research,

4. The Govt. can import Medicine or Drug - for its own use or for distribution in any

dispensary, hospital etc. as specified by the Central Govt. - with regard to public service carried

out by such dispensary, hospital etc.

Enumerage the terms and conditions under which patent would be granted by the

Controller. ( June 1997 - 7 Marks ; Rep : June 1999 )

* * *

H/3 RIGHTS ofPATENTEES - Sec. 48

Subject to the other provisions contained in this Act and the Conditions specified

in Section 47, a Patent granted under this Act shall confer upon the Patentee :-

a. where the subject matter of the Patent - is a Product, - the exclusive right to prevent

third parties, who do not have his consent, - from the act of making using, offering for sale,

selling or importing - for those purposes that product in India ;

b. where the subject matter of the Patent is a process, - the exclusive right topreventthird

parties, who do not have his consent, from the act ofusing that process, and from the act of

using, offering for sale, selling or importing - for those purposes - the product obtained directly

by that process in India ;

Provided that the Product obtained is not a product - in respect of which no

patent shall be granted under this Act.


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? What are the rights of patentees ? State the Conditions subject to which a patent is

granted under the Patents Act, 1970 ?( June 2000 - 7 Marks )

* * *

H/5 TERM ofPATENT - Sec. 53

1. Subject to the provisions of this Act, the term of every Patent granted, after the

commencement of the Patents (Amendment) Act, 2002, and the term of every patent which

has not expired and has not ceased to have effect, on the date of such commencement, under

this Act, - shall be twenty years -from the date of filling of the application for the patent.

2. A Patent shall cease to have effect - notwithstanding anything therein or in this Act - on

the expiration of the period - prescribed for the payment of any renewal fee, if that fee is not

paid within the prescribed period or within that period as extended under this Section.

3. The period prescribed for the payment of any renewal fee shall be extended to such

period, not being more than six months longer than the prescribed period, as may be specified -in a request made to the Controller - if the request is made and the renewal fee and the

prescribed additional feepaidbefore the expiration of the period so specified.

4. Notwithstanding anything contained in any other law for the time being in force, on

cessation of the Patent Right - due to non-payment of renewal fee or on expiry of the term of

patent, - the subject matter covered by the said patent - shall not be entitled to any protection.

? What is the term of a patent granted under the patents Act, 1970 ?( June 1994 - 5 Marks

)

* * *

H/6 APPLICATION - for the RESTORATION of LAPSED PATENTS - Sec. 60

A patent lapses- for the non-payment of renewal fees. It can be restored by

making an application within 1 year from the date of lapse. Application for the restoration of

the lapsed patentshall be made in the prescribed form alongwithprescribed fees.

A Statement - showing the circumstances leading to failure to pay the prescribed

fee in time should also be submitted. If the Controller General is satisfied - that the failure was

not intentional, he will advertise the application in the Official Gazette. After hearing the

Applicant and the Opponent, if any, - the Controller may allow the restoration or refuse the

restoration, as the case may be.

What is the law and procedure for the restoration of lapsed patents ?( June 96 - 8 M ; Rep :

Dec.98 ; Dec.2001)

* * *

H/8 ASSIGNMENT of a PATENT - Sec. 68


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Patentee can assign, licence, mortgage or create interest in his rights infavourof

any other person. However, to make such assignment etc, valid, - the agreementmust be in

writing.

The document - containing all terms and conditions governing Rights and

Obligations - must be filed alongwithapplication - in prescribed form within 6 months - from thedate of execution of the document (or) within such FURTHER period - NOT exceeding 6 months

- in the aggregate as the CONTROLLER allows. The document, when registered, is effective -

from the date of execution of the document.

* * *

Procedure - In Getting a Patent Granted

The following steps are involved - in getting a Patent granted :-

1. Filing of an Application for a Patent - accompanied by either provisional specification

or complete specification .

ProvisionalSpecification shallcontain the following details :-

a. Title of the Invention ;

b. Name, address and nationality of the Applicant ;

c. Description of the Nature of Invention. ;

d. Date and Signature

CompleteS

pec

ific

ation shallc

ontain the following details :-

a. Title of Invention ;

b. Name, address and nationality of the Applicant

c. Prescribed preamble to the description of the Invention

d. Description of the Invention and the manner in which it is to be performed

e. Statement of Claims and date and signature of the Applicant

2. Filing of complete specification, - if Provisional specification is filed alongwiththe

application.

3. Acceptance of the Application and advertisement - of such acceptance in the Official

Gazette.

4. Overcoming the opposition, if any, - for the grant of Patent.

5. Sealing of the Patent.


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The trademark act 1999 has been enacted to provide for registration of trademark for

goods and services including prohibition to the registration of imitation of well-known

trademarks. A persons right to trade mark is based on prior use or priority of claim.

Important terms used in the Act

MARK: sec 2 (1) TRADE MARK: sec 2(1)(Zb) WELL KNOWN TRADE MARK COLLECTIVE MARK CERTIFICATION TRADE MARK: sec 2 (1) (e) PERMITTED USE: sec 2(1)(r)

WELL KNOWN TRADE MARK: Section 2(1) (zg)Well known trade mark in relation to any goods or services, means a mark which has

become so to the substantial segment of the public which uses such goods or receives such

services that the use of such mark in relation to other goods or services would be likely to be

taken as indicating a connection in the course of trade or rendering of services between those

goods or services and a person using the mark in relation to the first-mentioned goods or

services.

Example: Coco Cola, Frooti, Bata.

CERTIFICATION TRADE MARK: Section 2 (1) (e)There is a species of trade mark called as Certification Trade mark. Its function is to

indicate that the proprietor of the mark has certified the goods bearing the mark as to certain

characteristics of the goods.

e.g. Geographical origin, ingredients and so on such as ISI, AGMARK, FPO

FUNCTIONS OF TRADE MARK

TM may be used to indicate that the goods are of a particular maker The goods of that maker are of a particular kind or quality.


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Trader may indicate his best quality by one TM, and his second best quality by anotherTM and so on. E.g. MRF with the symbol of person holding tyre is good quality and MRF

written plainly indicates the second quality.

It serves the purpose of identifying the source of origin of goods. As per modern business conditions a TM performs following functions:

It identifies the product and origin. It guarantees its unchanged quality. It advertises the product. It creates an image for the product. e.g. Zip Drive associated with Santro Car; TajMahal for a particular quality of tea

which will be different in quality from Brooke Bond; SONY is associated with

electronic items etc.

The functions of service marks in relation to services are similar to that of a TM inrelation to goods. E.g. Courier services such as DHL, DTDC, GATI etc.

ESSENTIAL FEATURES OF TM

A Trade mark should have the following essential elements:

1. A Trademark should have Distinctive Character (Distinctiveness of the Trademark) A trade mark would be considered a good trade mark when it is distinctive.

Features of Distinctiveness

Distinctiveness may be class dependent. What is distinctive in relation to one class of goods may not be so in relation to

another class of goods.

The TM may be united wholly to one or more specified colours and this colourcombination may become the distinctive character of the particular mark.

Distinctiveness may be inherent or acquired. Inherent distinctiveness means that the mark or get up is distinct in itself from

everything else and no one can justifiably claim the right to use it. E.g. RIN,

ZEN.

Acquired distinctiveness means


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Distinctiveness through use. E.g. the trade marksYashica, Hawkins, Surf and Lux have

acquired distinctiveness through use as also they are distinctive due to the inherent quality of

why being invented words.

2. Trademark should preferably be an invented word. The best trade marks areinvented words. E.g. ZEN ( a car) , DIO (non-geared scooter).

3. Trademark, if it is a word, or name, then it should be easy to pronounce andremember. E.g. Lux for soap, Maruti Zen for car, Mercedes for cars, Levis for

jeans, Reynolds for pens, Parker for pens etc.

4. In case of a device mark, the device should be capable of being described by asingle work. E.g. Camel for Camel Ink, Kingfisher bird for Kingfisher Beer.

5. Trade mark should be easy to spell correctly and write legibly.6. It should not be descriptive but may be suggestive of the quality of goods. For

example, a mark A-I would generally suggest superior quality. Avon (A-1) cyclesfor instance.

7. It should be short. E.g. Flex, Bru, Rin.8. It should appeal to the eye as well as ear.9. It should satisfy the requirements of registration.10.It should not belong to the class of marks prohibited for registration. E.g. Mark

prohibited under the Emblems and Names (Prevention of Improper Use) Act,

1950

labour law first half

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