Trademarks in India

TRADEMARKS IN INDIA

Trademarks have a definite role in development and growth of any enterprise, and in turn, of the economy of the nation. Reputed trademarks make or mar an economy. A successful trademark ensures higher level of sales and production, thus more employment, better wages and better purchasing power for workers and more profits for shareholders and managers. This facilitates expansion of business activity horizontally in other nations, and by way of vertical integration, i.e. the undertakings may be able to produce and sell integrating forward and backward and in turn more success.

Trademark may be seen as the source of information about the products. The emphasis on the right to information or concepts like transparency in relation to products are satisfied to large extent by trade marks and not by detailed brochures of the products. Trademarks impart important information about products to customers. The purchase decision made with the help of trademarks. A person might decide against buying a product with a certain trademark because he did not like the quality. If he tries some other trademark that satisfies his needs, it appears he has been helped by the presence of the trademarks.

Trademarks exerting a pull on goods or services thereby creating a demand in the market, result in an increased production for the enterprise, giving it better profitability. If the pull on goods or services were experienced from the abroad, it would lead to increased exports by the enterprise. The merits of increased exports are too well known to be mentioned. It is necessary for an economy to build its reputed marks, for enterprises may experience a demand for their goods in the markets rather than concentrating on the efforts in pushing the goods.

A Trademark is any sign that individualize the goods or services of a given enterprise from the goods or service of the competitors. Trademark gives an exclusive right to the owner of the mark over its use. With a view to ensuring protection to the goodwill that the manufacturer's product, enjoy in the market. Registration of trademark is almost compulsorily required.
Aspects relating to Trademark Registration, Assignment & Transmission, Registered User Rectification and Correction of Register of Trademark etc.
The trade and Merchandise marks rule 1959, govern these procedural aspects. The government having jurisdiction over the principal place of business and at present the registration office is situated at four metropolitan cities Delhi, Mumbai, Kolkata & Chennai, has specified appropriate office of Trademark registry. Registration of trademark is governed by rule 25 to 70 the Trade and Merchandise Marks Rules 1959.
Assignment & Transmission-A trademark is assignable as well as transmissible which can be done after following procedural formalities in connection with Assignment & Transmission.
Registered User - A person can use the trademark as a registered user subjects to certain conditions.
Rectification and Correction of Register of Trademark-After following the procedure there corrections can be made in register of trademark or amendment in classification of goods
Special Provision for Certification Trademark-The Act provides special procedure for registration of certification trademark.
Infringement and Passing Off-A registered proprietor of a trademark can prevent others from using an identical or deceptively similar trademark in relation to any goods in respect of which the mark is registered by either civil suit or criminal complaint or passing off.

OTHER INTELECTUAL PROPERTY RIGHTS

The object to grant patent is to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay. It is not granted merely to enable patentees to enjoy a monopoly for the patented article. Patent is granted to inventions. An invention must be new and useful. That is to say, it must have novelty and utility.
Section 2(j) of the Patents Act, 1970 defines invention as to mean a new product or process involving an inventive step and capable of Industrial application. Section 2(ja) defines the term 'inventive step' as to mean a feature that makes the invention not obvious to a person skilled in the art.
There are certain inventions where only methods or processes of manufacture are patentable viz. the inventions claiming substances intended for use, or capable of being used, as food or as medicine or drug or relating to substances prepared or produced by chemical process (including alloys, optical glass, semi-conductors and inter-metallic compounds), no patent shall be granted in respect of claims for the substances themselves but claims for the methods or processes of manufacture shall be paten table.
However, a claim for patent of invention for substance itself intended for use, or capable of being used, as medicine or drug except the specified medicine or drug, may be made in the manner provided in the chapter VIA dealing with "Exclusive Marketing Right".
Procedural Aspect
True and first inventor of the invention, his assignee or legal can make application representative.
Application is required to be made in accordance the procedure along with prescribed fee and provisional specification (complete specification will have to be filed within 12 months of Date of Application). After publication of application request of exam> ination has to be filed. After perusal of examiner report the applications will be published.
There are certain procedures under the Patent Act governing opposition, restoration of lapsed patents, surrender & addition of patents revocation and compulsory licensing of patents. There are penalties in case of infringement of patent of others.
Term of patent is 20 years from date of applications in general.
Apart from this there are exclusive marketing right which has been recently prescribed by the government in order to meet the obligation under article 70(8) and (9) of TRIPS agreement of WTO under chapter IVA in the Patents Act 1970 on EMR which contain sections 24A to 24F inserted by the Patents (amendment) Act 1999 w.e.f Jan/1995.

COPYRIGHT:
It is the exclusive right given by law for a certain number of years to an author composer etc. to publish, print or sell copies of his original work. Only original works are protected under the Copyright Act.
U/s - 14 of Copy Right Act 1957 Copy Right means "the exclusive Right which by virtue of and subject to the Provisions of this act is provided in the case of literary, Dramatic or musical work, Computer Programme, Artistic work, Cinematography and sound Recording.
In the above work copyright subsists through out India. But Copy Right work shall not subsists in any work specified above unless: -

1. In the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India.

2. In the case of an architectural work of art, the work is located in India.

3. In any cinematography film if a substantial part of the film is not an infringement of the copyright of any other works.
Registration of Copyright
Registration of any work is not obligatory. The provision is only optional and non-registration does not deprive the owner of his right to bring both a civil and criminal action against an offence of infringement.
Assignment and Licensing of Copyright
Copyright can be assigned, and owners of Copyright can also grant Licence of any interest of Copy Right work. Copyright is also subject to some compulsory Licensing for republication, performance and communication of published work.

The author is a partner at a leading Indian law firm, Naashree Associates, Advocates.