ORIGIN OF TRADEMARK

THE CONCEPT OF IDENTIFYING SOURCE OF MANUFACTURE BY A MARK

ITS IMPORTANCE WAS RECOGNISED ONLY AFTER INDUSTRIAL REVOLUTION

LARGE COMPANIES MANUFACTURING VARIOUS PRODUCTS BY ITSELF OR THROUGH OTHERS AND MARKETED BY IT LEAD TO USE OF ITS OWN TRADEMARK.

BY EXTENSIVE USE AND ADVERTISEMENT TRADEMARK BECOMES POPULAR AND ACQUIRES GOODWILL.

COMPETITION LEAD TO PIRACY/DUPLICATION.

TO PROTECT THE GOODWILL OF A TRADER/MANUFACTURERTRADEMARK LAWS ARE TO BE ENACTED.

IN INDIA AT PRESENT TRADE MARKS ACT, 1999 AND TRADE RULES 2002 ARE IN VOGUE.

THE FIRST TRADEMARK REGISTERED IN U.K UNDER NO.1 OF 1876 IN RESPECT OF READ EQUILATERAL TRIANGLE IN RESPECT OF ALCOHOLIC.

WHAT IS TRADEMARK?

A TRADEMARK MUST BE A MARK WHICH INCLUDES:

A DEVICE - PEPSI / MYSORE SANDAL SOAP

BRAND - LIFE BOY / BPL

HEADING - WINDOWS

LABEL - PEPSI / COCA COLA

NAME - TATA / BIRLA / GODREJ

SIGNATURE -

WORD - INFOSYS / JAVA / MICROSOFT

LETTER - MTR

NUMERICAL - 555

SHAPE OF GOODS, PACKAGE OR COMBINATION OF COLOURS.

PROPERTY IN TRADEMARK

RIGHT ACQUIRED IN A TRADEMARK MERELY BY USING IT

ON REGISTRATION UNDER ACT, THE OWNERS RIGHT GET CRYSTALLIZED AND HE WILL BE CALLED REGISTERED PROPRIETOR.

REGISTRATION IS NOT MANDATORY.

IT IS ADVISABLE TO REGISTER A TRADEMARK TO PREVENT PIRACY/DUPLICATION AND INNOCENT ADOPTION BY ANOTHER PERSON.

WHAT MARKS ARE REGISTERABLE.

(I) CAPABLE BY BEING REPRESENTED GRAPHICALLY.

(II) CAPABLE OF DISTINGUISHING THE GOODS AND SERVICES OF ONE PERSON FROM TO THOSE OF OTHERS.

NOT ENTITLE FOR REGISTRATION

NOT ORIGINAL

COMMERCIALLY EXPLOITED IN INDIA OR OTHER CONVENTIONAL COUNTRY

NOT DISTINCTIVE

NOT CAPABLE OF DISTINGUISHABLE FROM OTHER REGISTERED LAYOUT DESIGN

REFUSAL OF REGISTRATION:

NOT CAPABLE OF DISTINGUISHING

WHICH INDICATES QUALITY OR DESCRIPTIVE CHARACTER OF GOODS.

GENERIC NAMES OR MARKS COMMON TO TRADE.

NOT REGISTRABLE UNDER ANY CIRCUMSTANCES:

MARK DECEIVES PUBLIC

MARK LIKELY TO HURT RELIGIOUS FEELING.

SCANDALOUS OBSCENE MATTER.

PROHIBITED UNDER EMBLEMS AND NAMES ACT.- MAHATMA/BALAJI/VIVEKANANDA/EMBLEM OF REDCROSS/OLYMPICS ETC.

SHAPE OF GOODS PURELY FUNCTIONAL.

CHEMICAL NAMES AND INTERNATIONAL NON-PROPRIETARY

NAMES.

PROCEDURE

AN APPLICATION WITH FEE SIGNED BY AGENT OR APPLICANT HIMSELF REPRESENTATION OF MARK APPLIED EITHER IN USE OR PROPOSED TO BE USED. BEFORE APPLYING IT IS ALWAYS BETTER TO CARRYOUT SEARCH IN TRADEMARK REGISTRY, PUBLICATION AND MARKET. AFTER APPLICATION IS FILED, EXAMINATION OF MARK AND EXAMINERS REPORT IS FURNISHED. AFTER COMPLYING WITH OBJECTIONS THE MARK WILL BE ACCEPTED AND ADVERTISED IN THE TRADEMARK JOURNAL. IF NO OPPOSITIONS ARE FILED WITHIN THREE MONTHS, THE MARK WILL BE REGISTERED. RENEWAL HAS TO BE DONE ONCE IN SEVEN YEARS ON PAYMENT OF REQUISITE FEE.

ASSIGNMENT OF TRANSMISSION

A REGISTERED TRADEMARK CAN BE ASSIGNED AND THE SAME HAS TO BE DULY REGISTERED WITH THE REGISTRY.

AN UNREGISTERED TRADEMARK CAN BE ASSIGNED ONLY WITH GOODWILL OF THE BUSINESS.

A PERMITTED USE OF TRADEMARK CAN BE GRANTED UNDER CERTAIN CONDITIONS.

LICENCE CAN BE GRANTED FOR USE OF UNREGISTERED

TRADEMARK.

RECTIFICATION

THE REGISTER SUFFERS FROM THE ABSENCE OR OMISSION VIZ., DISCLAIMER, A CONDITION OR LIMITATION.

ENTRY MADE WITHOUT SUFFICIENT CAUSE.

ENTRY WRONGLY REMAINING IN THE REGISTER.

MARK NOT IN USE FOR MORE THAN 5 YEARS.

NON-PAYMENT OF RENEWAL FEE.

THE EXCLUSIVE RIGHT- CERTAIN LIMITATION

IF REGISTRATION IS NOT VALID IF TRADEMARK USED VIOLATING CONDITIONS AND LIMITATIONS ATTACHED AT THE TIME OF REGISTRATION. REGISTRATION WILL NOT OPERATE AGAINST ANOTHER REGISTERED PROPRIETORS OF IDENTICAL OR SIMILAR TRADEMARKS. REGISTERED PROPRIETOR CANNOT INTERFERE WITH PRIOR USER OF THE SAME OR SIMILAR MARK. BONAFIDE USE OF HIS OWN NAME OR THAT OF HIS PLACE OF HIS BUSINESS OR THE USE OF ANY BONAFIDE CHARACTER OR QUALITY OF GOODS. IF IN THE COURSE OF TIME IT BECOMES THE NAME OF AN ARTICLE OR SUBSTANCE, THEN THE RIGHTS CONFERRED CEASES. REGISTRATION IS NOT DEFENCE AGAINST PASSING-OFF.

INFRINGEMENT OF TRADEMARKTHE FOLLOWING USER OF REGISTERED TRADEMARK WHICH ARE LIKELY TO CAUSE CONFUSION CONSTITUTE INFRINGEMENT

MARKS IDENTICAL AND GOODS AND SERVICES ARE SIMILAR MARKS SIMILAR AND GOODS AND SERVICES SIMILAR MARKS IDENTICAL OR SIMILAR, THE GOODS AND SERVICES ARE NOT SIMILAR THE REGISTERED PROPRIETOR HAS REPUTATION IN INDIA DETRIMENTAL TO THE DISTINCTIVE CHARACTER OR REPUTE OF THE REGISTERED TRADEMARK USE OF REGISTERED TRADEMARK AS PART OF TRADENAME OR PART OF TRADEMARK OR NAME OF BUSINESS CONCERN.

FOLLOWING ACTS CONSTITUTE INFRINGEMENT

(1) AFFIXES REGISTERED TRADEMARK TO GOODS, MANUFACTURERS

OFFERS, EXPOSES, SALES, STOCKS, OR SUPPLIES GOODS AND SERVICES UNDER REGISTERED TRADEMARK.

IMPORT AND EXPORT

USE OF REGISTERED TRADEMARK ON BUSINESS PAPERS OR ADVERTISEMENT.

NOT CONSTITUTES INFRINGEMENT

NOT TAKING UNFAIR ADVANTAGES OF OR CAUSE

DETRIMENT TO DISTINCTIVE CHARACTER OR REPUTE OF TRADEMARK.

USE IN RELATION TO GOODS OR SERVICES INDICATING CHARACTER, QUALITY OR GEOGRAPHICAL ORIGIN. THE OBJECT OF USE IS TO INDICATE THAT THE SERVICES HAVE BEEN PERFORMED BY THE PROPRIETOR. CHANGE THE CONDITION OF GOODS.

Contd.

Contd. IF REGISTRATION IS CONFINED TO CERTAIN TERRITORIES, USE OF TRADE BEYOND THOSE TERRITORIES DOES NOT CONSTITUTE INFRINGEMENT, BUT AMOUNTS TO PASSING-OFF.

SALE OF GOODS ON RETAIL BASIS AFTER PURCHASING THE SAME IN BULK, EXCEPT REPACKING.

SALE OF ACCESSORIES OF GOODS SUCH AS MACHINERY, AUTHORITIES, CYCLES WHERE PARTS ARE MANUFACTURED BY DIFFERENT PERSONS.

IDENTICAL MARK REGISTERED BY MORE THAN ONE PERSON. SALE OF GOODS BY ASSIGNEE OF A TRADEMARK AS LONG AS HE DOES NOT

ACTION FOR INFRINGEMENT

A SUIT CAN BE FILED IN THE DISTRICT COURT HAVING JURISDICTION.

A SUIT CAN BE FILED IN ADDITION TO DISTRICT JUDGE IN HIGH COURT OF DELHI, MUMBAI, CALCUTTA AND CHENNAI WHICH HAVE ORIGINAL JURISDICTION.

RELIEFS:-

(1) MANDATORY INJUNCTION RESTRAINING DEFENDANTS FROM USING TRADEMARK

(I) DAMAGES AND COSTS(II) SUITS FOR ACCOUNTS(III) SURRENDER OF INFRINGED GOODS.(IV) SURRENDER OF LABELS, BILLS, HOARDINGS, LETTER HEADS, TRANSPERENCIES, NEGATIVES, POSITIVES, PAMPHLETS, BROUCHERS, ETC.,

AN INTERLOCUTORY APPLICATION CAN ALSO BE FILED FOR INTERIM INJUNCTION.

EVIDENCE/PROOF

CERTIFIED COPY OF REGISTERED TRADEMARK CERTIFICATE.

BILLS, INVOICES, ST AND IT ASSESSMENT ORDERS

ADVERTISEMENTS

AUDITED BALANCE SHEETS

PACKAGES, BOXES ETC.,

PHOTOGRAPHS

DEFENDANTS DOCUMENTS/PROOF

PHOTOGRAPHS

BILLS AND INVOICES

PRODUCT

PACKAGES, PAMPHLETS

ADVERTISEMENTS

AFFIDAVIT OF PERSONS WHO HAVE KNOWLEDGE ABOUT

INFRINGEMENT.

PASSING-OFF

IN RESPECT OF UNREGISTERED TRADEMARK, ACTION FOR

PASSING OFF CAN BE INTIATED.

ESSENTIAL CHARACTERS:

MISREPRESENTATION MADE BY A PERSON DURING THE COURSE OF TRADE

TO PROSPECTIVE CUSTOMERS.

CALCULATED INJURE OR LOSS TO THE GOODWILL AND BUSINESS OF A TRADER.

DAMAGE OR LIKELIHOOD OF DAMAGE IS ESSENTIAL

METHODS WHICH CONSTITUTES PASSING-OFF

FALSE REPRESENTATION ADOPTION OF TRADEMARK WHICH IS THE SAME OR A COLOURABLE IMITATION OF A TRADEMARK ADOPTION OF ESSENTIAL CHARACTER OF A TRADEMARK COPYING GET UP OR COLOUR SCHEME. IMITATING THE DESIGN OR SHAPE OF GOODS ADOPTING THE WORD OR NAME OF RIVAL TRADER.

AGAINST INTERLOCUTORY ORDER APPEAL LIES TO HIGH COURT AND THEREAFTER TO SUPREME COURT.

AGAIN FINAL ORDER APPEAL LIES TO HIGH COURT AND THEREAFTER TO SUPREME COURT.

OFFENCES & PENALTIES

FOR INFRINGEMENT OF TRADEMARK CRIMINAL ACTION CAN ALSO BE INITIATED EITHER BY FILING FIR BEFORE POLICE OR BY FILING PRIVATE COMPLAINT BEFORE MAGISTRATE.

GROUNDLESS THREATS

PERSON AGGRIEVED OF GROUNDLESS THREATS CAN ALSO INITIATE ACTION AGAINST PERSON WHO IS MAKING THREATS.

THE SEMI-CONDUCTOR INTEGRATED CIRCUITS LAYOUT DESIGN BILL 2000

THE BILL IS DESIGNED TO GIVE STATUTORY PROTECTION TO INTEGRATED CIRCUITS LAYOUT FOR A PERIOD OF TEN YEARS SUBJECT TO CERTAIN CONDITIONS.

CASE LAWS OF TRADEMARK:

EASTMAN VS. JOHN GRIFFTHS (1898) 15 RPC 105

KODAK FOR CAMERAS BY PLAINTIFFKODAK FOR BICYLES BY DEFENDANTS

INJUNCTION GRANTED SINCE PLAINTIFFS HAS SOLD CAMERAS WHICH CAN BE FITTED TO BICYLES

DUNLOP PNEUMATIC VS. DUNLOP LUBRICANT (1899) 16 RPC 12

PLAINTIFFS USED DUNLOP FOR TYRES FOR BICYLES.

DEFENDANTS STARTED USING DUNLOP FOR OILS AND LUBRICANTS FOR BICYLES, INJUNCTION GRANTED RESTRAINING DEFENDANTS FROM USING THE TRADE MARK DUNLOP

COMPUTER VISION CORPORATION VS. COMPUTER VISION LTD. (1975) RPC 17

PLAINTIFFS USED TRADEMARK FOR MANUFACTURE OF COMPUTERS AND OTHER SOPHISTICATED ELECTRONIC SYSTEMS SINCE 1966

DEFENDANTS ADOPTED SIMILAR NAME IN 1973 FOR SELLING ELECTRONIC CHECKOUT SYSTEM FOR SUPER MARKET.INJUNCTION GRANTED FOR COMMON FIELD OF ACTIVITY

KAMAL TRADING VS. GILLETTE (1988 IPL 135)

7' O CLOCK FOR BLADES USED FOR SHAVING BLADES FOR MANY YEARS DISCONTINUED SINCE 1958 FOR IMPORT BAN.

DEFENDANT USED 7'O CLOCK FOR TOOTH BRUSH SINCE 1982.

INJUNCTION GRANTED ON ACCOUNT OF REPUTATION AND THE

CONDUCT OF DEFENDANT WAS DISHONEST AND FRAUDULENT

A.B.VOLVO VS. VOLVO STEELS LTD., 1998 PTC 47 (DEL) (DB) PLAINTIFF A SWEDISH COMPANY MANUFACTURING VOLVO AUTOMOBILES.

VOLVO IS LATIN WORD NOT KNOWN IN INDIA.

SWEEDISH COMPANY IS REGISTERED PROPRIETOR OF TRADEMARK VOLVO IN INDIA.

DEFENDANT STARTED USING VOLVO AND 'VOLVO GROUP' AS A PART OF THEIR TRADING STYLE.

INJUNCTION GRANTED FOR DISHONEST ADOPTION.

DONGRE VS. WHIRLPOOL CORPORATON (1996) PTC 583 SC

WHIRLPOOL ADOPTED BY DEFENDANT FOR HOME APPLIANCES/WASHING MACHINES ETC.,

WHIRLPOOL CORPORATION OBTAINED INJUNCTION RESTRAINING DEFENDANT FROM USING TRADEMARK WHIRLPOOL.

THE REGISTRATION OF TRADEMARK WHIRLPOOL OBTAINED BY DEFENDANT WAS CANCELLED.

ADOPTION OF TRADEMARK WHIRLPOOL BY DEFENDANT IS HELD TO BE DISHONEST AND FRAUDULENT

TRANSBORDER REPUTATION OF TRADEMARK DISCUSSED.

SOME OF THE RECENT CASES DECIDED BY COURTS IN INDIALAKSHMAN REKHADR. REDDY’S LABAROTORIESMANIKCHANDKIRLOSKARADIGASSIFFYNETDEEPAMSUKHSAGARBAJAJSARABAI

THE GEOGRAPHICAL INDICATION OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999.

UNDER TRADEMARKS ACT, A GEOGRAPHICAL NAME, EXCEPT UNDER CERTAIN CIRCUMSTANCES IS CONSIDERED NOT DISTINCTIVE AND CAN BE REGISTERED ONLY AFTER PROVING ITS DISTINCTIVENESS. THE ACT IS DESIGNED TO OVERCOME THE ABOVE DAMNA/SHORTFALL FACED BY TRADER/MANUFACTURERS.

WHAT IS GEOGRAPHICAL INDICATION

AN INDICATION USED TO IDENTIFY THE GOODS, WHETHER NATURAL OR MANUFACTURED GOODS EMANATING FROM A PARTICULAR AREA OR TERRITORY KNOWN FOR PARTICULAR QUALITY OR CHARACTERISTIC OF THE GOODS, SUCH GEOGRAPHICAL NAMES IF USED BY A PERSON IN RELATION TO GOODS ORIGINATING FROM ENTIRELY DIFFERENT PLACES IS LIKELY TO CAUSE CONFUSION OR DECEPTION. THE ACT IS AIMED TO GIVE STATUTORY PROTECTION TO CONSUMERS FROM SUCH CONFUSION AND DECEPTION THROUGH PROCESS OF REGISTRATION OF INDICATION BY LAW.

EG: BASUMATI RICE,CHAMPAGNE, COORG HONEY, COORG COFFEE, NILGIRIS OIL, DARJEELING TEA, ETC., KANCHIPURAM SAREE, MYSORE SILK ETC.,

THE PROTECTION OF PLANT VARIETIES AND FARMER'S RIGHTS BILL, 1999.

THIS BILL IS IN CONFIRMITY WITH TRIPS AGREEMENT.

THE BILL IS AIMED TO GIVE PROTECTION TO RESEARCHERS IN PLANTS OR ORGANISATIONS ASSOCIATED WITH RESEARCH ON PLANT. THE BILLS ALSO AIMED TO ENCOURAGE AND TO PROVIDE INCENTIVES FOR PRODUCING NEW PLANT VARIETIES BY GRANTING THEM EITHER PATENT RIGHT OR SUI GENERIS SYSTEM. GOVERNMENT OF INDIA HAS DECIDED TO ADOPT A SUI GENERIS LEGISLATION TO PROTECT BREEDERS OF NEW VARIETIES OF PLANTS.

INFORMATION TECHNOLOGY ACT, 2000

DIGITAL TECHNOLOGY HAVE BROUGHT OUT SIGNIFICANT CHANGES IN OUR DAILY LIFE, PARTICULARLY IN THE FIELD OF INFORMATION TECHNOLOGY.

EVENTHOUGH PEOPLE ARE AWARE OF ADVANTAGES OF USE OF COMPUTER, THEY WERE RELUCTANT TO USE THE SAME ON ACCOUNT IF FEAR THAT THEIR TRANSACTION WILL NOT STAND TEST OF FINAL IN COURT OF LAW. THE TWO PRINCIPLE HURDLES WHICH STAND IN THE WAY OF FACILITATING ELECTRONIC COMMERCE AND ELECTRONIC GOVERNANCE ARE THE REQUIREMENTS AS TO WRITING AND SIGNATURE FOR LEGAL EVIDENCE.

Contd.

AT PRESENT, THE EVIDENCE ACT WHICH DEAL WITH EVIDENCES IN COURTS ENACTED IN THE YEAR 1872 ONLY DEAL WITH DOCUMENTS AND RECORDS BASED UPON PAPER AND ORAL TESTIMONY. ACT IS DESIGNED TO GIVE STATUTORY PROTECTION TRANSACTION ARISING OUT OF ELECTRONIC COMMERCE AND ELECTRONIC BUSINESS.

THE ACT HAS BEEN DESIGNED AS MODEL LAW ADOPTED BY UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW.

Contd.

Contd.

THE ACT DEALS WITH AUTHENTICATION OF ELECTRONIC RECORDS BY AFFIXING ONE’S DIGITAL SIGNATURE.

THE ACT ALSO PROVIDES FOR LEGAL RECOGNITION AND ELECTRONIC RECORDS AND DIGITAL SIGNATURE.

IT PERMITS USE OF ELECTRONIC RECORDS AND DIGITAL SIGNATURE IN GOVERNMENT AND ITS AGENCIES.

DOCUMENTS CAN BE RETAINED IN ELECTRONIC FORM.

THE FOLLOWING ACTS HAVE ALSO BEEN AMENDED.

INDIAN PENAL CODE

INDIAN EVIDENCES ACT

BANKER'S BOOK EVIDENCE ACT

RESERVE BANK OF INDIA ACT

COPYRIGHT IS DERIVED FROM THE EXPRESSION "COPIES OF WORDS" USED IN OXFORD DICTIONARY IN 1586.

THE WORD 'COPY' DATE BACK TO 1485 AND USED TO CANNOTE A MANUSCRIPT FOR PRINTING.

COPYRIGHT MEANS THE EXCLUSIVE RIGHT TO DO CERTAIN ACTS IN RELATION TO DO CERTAIN ACTS IN RELATION TO:

LITERARY, DRAMATIC OR MUSICAL WORKS

ARTISTIC WORK

CINEMOTOGRAPHIC FILM

SOUND RECORDING

SCOPE OF COPYRIGHT

NO COPYRIGHT EXCEPT THOSE PROVIDED UNDER COPYRIGHT ACT. GIVES PROTECTION TO THE WRITER OR CREATOR OF THE ORIGINAL WORK FROM UNAUTHORISED EXPLOITATION OR REPRODUCTION. EXCLUSIVE RIGHT WITHOUT AUTHORITY. COPYRIGHT IS A MULTIPLE RIGHT CONSISTING OF BUNDLE OF DIFFERENT RIGHTS IN THE SAME WORK. NO COPYRIGHT IN IDEALS SUBSISTS ONLY IN MATERIAL FORM. COPYRIGHT PROTECTION ONLY IF THE AUTHOR HAS BESTOWED UPON THE WORK SUFFICIENT JUDGEMENT, SKILL, LABOUR OR CAPITAL. COPYRIGHT SUBSISTS ONLY IF ORIGINAL WORK. NO COPYRIGHT IS IMMORAL OR ILLEGAL WORK.

QUALIFICATION FOR COPYRIGHT SUBSISTANCE.

FIRST PUBLICATION IN INDIA

IF PUBLISHED OUTSIDE INDIA, AUTHOR MUST BE CITIZEN OF INDIA.

IF PUBLICATION AFTER THE DEATH OF THE AUTHOR, HE MUST HAVE BEEN A CITIZEN OF INDIA.

IF UNPUBLISHED WORK, THE AUTHOR MUST BE A INDIAN CITIZEN AT TIME OF MAKING WORK.

ARCHITECTURAL WORK OF ART, THE WORK IS LOCATED IN INDIA.

LITERARY WORKS

INCLUDES

TABLES

COMPILATIONS

COMPUTER IF RECORDED IN DISC, TAPES OR OTHER INFORMATIVE STORAGE DEVICE

ANY WORK EXPRESSED IN PRINT OR WRITING

DRAMATIC

A DRAMATIC WORK INCLUDES ANY PIECE OF REITATION, CHOREOGRAPHIC WORK OR ENTERTAINMENT IN DUMB SHOW, SCENIC ARRANGEMENT OR ACTING FORM OF WHICH FIXED IN WRITING.

MUSICAL WORKS

COMBINATION OF ANY MELODY AND HARMONY OR EITHER OF THEM PRINTED, REDUCED TO WRITING OR OTHERWISE GRAPHICALLY PRODUCED OR REPRODUCED

IT MUST BE ORIGINAL TO QUALIFY FOR COPYRIGHT.

NO COPYRIGHT IN A SONG

IF MUSIC AND SONG IS OWNED BY SAME PERSON, COPYRIGHT SUBSISTS.

ARTISTIC WORK

MEANS:

PAINTING A SCULPTURE A DRAWING INCLUDING A DIAGRAM, MAP, CHART OR PLAN AN ENGRAVING A PHOTOGRAPH WHETHER ARTISTIC OR NOT AN ARCHITECTURAL WORK OF ART WORK OF A ARTISTIC CRAFTMENSHIP. CINEMOTOGRAPHIC FILMS.

TYPES OF OWNERSHIP IN COPYRIGHTS:

SOFTWARE/MULTIMEDIA:

1. SOFTWARE ENGINEER2. THE EMPLOYER3. ANY LICENCEES OF THE EMPLOYER, EXCLUSIVE & NON- EXCLUSIVE4. OWNERS IN VARIOUS TERRITORIES

MUSIC:

1. RIGHT OF LYRICIST2. MUSIC DIRECTOR3. SINGER

4. ORCHESTRA5. MUSIC COMPANY6. VERSION RECORDINGS

VARIOUS COPYRIGHTS:

1. RIGHTS OF PERFORMERS2. RIGHTS OF PRODUCER3. RIGHTS OF MUSIC DIRECTOR4. RIGHTS IN TITLE SONG5. RIGHTS OF THE BROADCASTER VIZ., ZEE TV

BOOKS:

1. RIGHTS OF THE AUTHOR2. RIGHTS OF THE PUBLISHER IN INDIA AND ABROAD3. RIGHTS OF A PERSON PUBLISHING THE BOOK ON CD ROM4. RIGHTS ON THE INTERNET

MACHINERY

THIS CAN BE SUB-MATTER OF PATENT AND COPYRIGHT. BUT DRAWINGS OF MACHINERY FALLS IN COPYRIGHT.ESCORTS CONSTRUCTION CASE.

MEDICINES

1. REALM OF PATENTS2. TRADEMARK RIGHTS IN COLOUR OF CAPSULES AND GRANULES3. NO COPYRIGHTS

PEPSI CAN

1. COPYRIGHT IN THE PACKAGING, COLOURS ETC.,2. TRADEMARK IN PEPSI3. COPYRIGHT IN CIRCULAR DEVICE4. COPYRIGHT IN MANNER OF WRITING PEPSI

TO SECURE COPYRIGHT - IS IT ESSENTIAL TO SECURE REGISTRATION

COPYRIGHT IS RIGHT WHICH COMES INTO EXISTENCE WHEN

THE WORK IS CREATED. NO REGISTRATION IS NECESSARY.

HOWEVER, EVEN IF PROTECTION EXISTS, IT IS ADVISABLE TO GET REGISTRATION.

PROCEDURE FOR REGISTRATION OF COPYRIGHT

APPLICATION WITH FEE

5 COPIES OF THE COPYRIGHT WORK

ADVANTAGE OF REGISTRATION OF COPYRIGHT

IT CONSTITUTES PRIMA-FACIE EVIDENCE OF COPYRIGHT

FIRST OWNER OF COPYRIGHT

THE AUTHOR OF WORK IS DEEMED TO BE THE FIRST OWNER OF THE COPYRIGHT

HOWEVER, IN CASE OF A WORK MADE IN THE COURSE OF THE EMPLOYMENT UNDER A CONTRACT OF SERVICE THE EMPLOYER IS THE FIRST OWNER OF THE SAME.TRANSER OF COPYRIGHT

LICENSING

ASSIGNMENT

MORAL RIGHTS :

APART FROM COPYRIGHT LAW PROPER, THE AUTHOR HAS TWO BASIC MORAL RIGHTS:

RIGHTS OF PATERNITY

RIGHT OF INTEGRITY

THE TERM OF COYRIGHT

FOR LITERARY, DRAMATIC MUSICAL OR ARTISTIC WORK IS LIFETIME OF AUTHOR + 60 YEARS

FOR ANONYMOUS OR PSEUDONYMOUS WORK IS 60 YEARS FROM THE DATE OF PUBLISHING

FOR A PHOTOGRAPH, SOUND RECORDING,

CINEMATOGRAPHIC FILM AND GOVERNMENT WORK IS 60

YEARS FROM DE OF PUBLISHING OF THE WORK.

INFRINGEMENT OF COPYRIGHT

WHAT CONSTITUTES INFRINGEMENT?

DOING OR AUTHORIZING TO DO ANY OF THE FOLLOWING ACTS WITHOUT THE CONSENT OR LICENSE OF OWNER OF COPYRIGHT

REPRODUCE THE WORK INCLUDING ITS STORAGE ISSUE COPIES TO THE PUBLIC PERFORM/COMMUNICATE THE WORK TO PUBLIC MAKE TRANSLATION OF THE WORK MAKE ADAPTION OF THE WORK PERMIT FOR PROFIT ANY PLACE TO BE USED FOR COMMUNICATION OF THE WORK WHEN INFRINGEMENT MAKE INFRINGING COPIES OF WORK FOR SALE, HIRE OR DISPLAY OR OFFER FOR SALE OR HIRE IMPORT INFRINGING COPIES IN INDIA.

CIVIL REMEDIES FOR INFRINGEMENT OF COPYRIGHT INCLUDE

INJUNCTION

DAMAGES

DELIVERY OF INFRINGING COPIES

RENDITION OF ACCOUNTS

CRIMINAL REMEDIES

SECTION 63 OF THE COPYRIGHT ACT, 1957 DEFINES OFFENCE OF INFRINGEMENT OF COPYRIGHT.

INFRINGEMENT OF COPYRIGHT IS A COGNIZABLE OFFENCE PUNISHABLE WITH IMPRISONMENT UPTO 3 YEARS AND FINE UPTO 2 LAKH RUPEES.

EXCEPTIONS - FAIR USE

SECTION 52 OF THE COPYRIGHT ACT ENLISTS ACTS WHICH DO NOT CONSTITUTE INFRINGMENT, VIZ.,

FAIR DEALING FOR THE PURPOSE OF PRIVATE USE, INCLUDING RESEARCH AND CRITICISM OR REVIEW OF THE WORK FAIR DEALING FOR THE PURPOSE OF REPORTING CURRENT EVENTS IN A NEWSPAER, ETC., REPRODUCTION FOR THE PURPOSE OF JUDICIAL PROCEEDING OR REPORT OF JUDICIAL PROCEEDING MAKING OF TEMPORARY OR BACK-UP COPIES TO PROVIDE AGAINST DESTRUCTION OR DAMAGE OBSERVATION, STUDY OR TESTING OF FUNCTIONING OF THE COMPUTER PROGRAMME MAKING OF COPIES OF SOFTWARE FROM A LEGAL COPY FOR NON-COMMERCIAL PERSONAL USE.

SOFTWARE AND BUSINESS METHODS

TRADITIONALLY, COMPUTER SOFTWARE IS PROTECTED UNDER THE COPYRIGHT ACT, 1957. THE SOURCE CODE AND OBJECT CODE ARE TREATED AS LITERARY WORKS AND COPYRIGHT PROTECTION IS GRANTED.

UNDER THE PATENTS ACT, 1970, SOFTWARE AND BUSINESS METHODS ARE NOT SPECIFICALLY DEALT WITH. THE SITUATION THEREFORE WAS THAT SOFTWARE WAS BEING INDIRECTLY PATENTED SINCE THERE WAS NO BAR. HOWEVER, THE PRACTICE WAS THAT SOFTWARE COUPLED WITH A HARDWARE APPLICATION WAS BEING TREAED AS A "PROCESS" & "INVENTION".

CASE LAWS FOR COPYRIGHT:

ANAND R G VS. M/S DELUXE FILMS AIR 1978 S C 1613

NO COPYRIGHT SUBSISTS IN:

IDEA

THEME

SUBJECT MATTER PLOTS OR HISTORICAL OR LEGENDARY FACTS AND VIOLATION OF THE COPYRIGHT IN SUCH CASE IS CONFINED TO THE FORM, MANNER, ARRANGEMENT AND EXPRESSING OF IDEA BY THE AUTHOR

INDIAN PERFORMING RIGHTS SOCIETY LTD., VS. EASTERN INDIA MOTION PICTURES ASSOCIATON AIR 1977 S C 1443

THE COMPOSER OF LYRIC OR MUSICAL WORK WHO HAS AUTHORISED A PRODUCER TO USE HIS LYRIC CANNOT RESTRAIN PRODUCER OF THE MOVIE FROM EXPLOITING THE SAID LYRICS RECORDED ON A SOUND TRACK FOR COMMERCIAL GAINS OR SCREENING TO THE PUBLIC

HARRINGTON CONSTRUCTION & FINANCE LTD., VS. EICHER GONDMEARTH LTD., (1997 PTC 72) DB

IF THE AUTHOR UTILISES HIS OWN SKILL AND INTELLIGENCE AND BRINGOUT HIS OWN AND INTELLIGENCE AND BRINGOUT HIS OWN WORK, EVEN IF THE IDEA IS COPIED FROM SOMEONE ELSE THE WORK IS ENTITLE TO COPYRIGHT PROTECTION.

IN THE FOLLOWING WORKS THE COURTS HAVE HELD THAT COPYRIGHT SUBSISTS

COMPILATION OF EXAMINATION PAPERS TAMBOLA TICKETS ABRIDGEMENT OF HEAD NOTE OR JUDGEMENTS COMPILATION OF ADDRESS USING COMPUTER, COMPUTER PROGRAMME.

DOES NOT SUBSISTS

IN WORDS SIMPLE DRAWING WHERE NO SKILL AND INTELLIGENCE IS EMPLOYED WHILE IN EMPLOYMENT WITH AN EMPLOYEE

GRAMAPHONE INDIA VS. SUPER CASSETTE INDUSTRIES LTD., 1996 PTC 252 (DEL)

COMBINATON OF MELODY AND/OR HARMONY UNLESS REDUCED IN WRITING OR GRAPHICALLY PRODUCED OR REPRODUCED IS NOT A MUSICAL WORK UNDER THE ACT

GEOGRAPHICAL INDICATION:

Geographical Indication is used to identify agricultural, natural or manufactured goods originated in any definite territory of India which has a special quality or characteristic or reputation based upon the climatic or production characteristic unique to the Geographical Indication.

Examples: * Basmati Rice* Darjeeling Tea* Kancheepuram Silk* Mysore Silk Saree* Nagpur Orange* Kollapuri Chappal* Chennapatna Toys* Mysore Sandal Soap* Nanjangud Rasbale