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/MANUFACTURER
TRADEMARK 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 TRADEMARK
THE 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 PLAINTIFF
KODAK 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.
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 ENGINEER
2. THE EMPLOYER
3. ANY LICENCEES OF THE EMPLOYER, EXCLUSIVE & NON-
EXCLUSIVE
4. OWNERS IN VARIOUS TERRITORIES
MUSIC:
1. RIGHT OF LYRICIST
2. MUSIC DIRECTOR
3. SINGER
4. ORCHESTRA
5. MUSIC COMPANY
6. VERSION RECORDINGS
VARIOUS COPYRIGHTS:
1. RIGHTS OF PERFORMERS
2. RIGHTS OF PRODUCER
3. RIGHTS OF MUSIC DIRECTOR
4. RIGHTS IN TITLE SONG
5. RIGHTS OF THE BROADCASTER VIZ., ZEE TV
BOOKS:
1. RIGHTS OF THE AUTHOR
2. RIGHTS OF THE PUBLISHER IN INDIA AND ABROAD
3. RIGHTS OF A PERSON PUBLISHING THE BOOK ON CD ROM
4. 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 PATENTS
2. TRADEMARK RIGHTS IN COLOUR OF CAPSULES AND
GRANULES
3. NO COPYRIGHTS
PEPSI CAN
1. COPYRIGHT IN THE PACKAGING, COLOURS ETC.,
2. TRADEMARK IN PEPSI
3. COPYRIGHT IN CIRCULAR DEVICE
4. 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