FAQ’s on Copyright

copyright

What is copyright?
Ans: 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 ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create

FAQ’s on Trademark

trademark1.      What is a trademark? 

The legal requirements to register a trademark under the Act are:
·         The selected mark should be capable of being represented graphically (that is in the paper form).

·         It should be capable of distinguishing the goods or services of one undertaking from those of others.

·         It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.

 

2.         How to select a good trademark?
    If it is a word it should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs.

Please avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it.

Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.)

It is advisable to conduct a market survey to ascertain if same/similar mark is used in market.

 
3.         What is the function of a trademark?
  Under modern business condition a trademark performs four functions
Ø      It identifies the goods / or services and its origin.

Ø      It guarantees its unchanged quality

Ø      It advertises the goods/services

Ø      It creates an image for the goods/ services.

 
 4.         Who can apply for a trademark and how ?
              Any person, claiming to be the proprietor of a trademark used or proposed to be used by him, may apply in writing in prescribed manner for registration.  The application should contain the trademark, the goods/services, name and address of applicant and agent (if any) with power of attorney, the period of use of the mark.  The application should be in English or Hindi.  It should be filed at the appropriate office.

The applications can be submitted personally at the Front Office Counter of the respective office or can be sent by post. These can also be filed on line through the e-filing gateway available at the official website.

 

5         What are different types of trademarks that may be registered in India?
  –      Any name (including personal or surname of the applicant or predecessor in business or the signature of the person), which is not unusual for trade to adopt as a mark.

–       An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service.

–       Letters or numerals or any combination thereof.

–       The right to proprietorship of a trademark may be acquired by either registration under the Act or by use in relation to particular goods or service.

–       Devices, including fancy devices or symbols

–       Monograms

–       Combination of colors or even a single color in combination with a word or device

–       Shape of goods or their packaging

–       Marks constituting a 3- dimensional sign.

–       Sound marks when represented in conventional notation or described in words by being graphically represented.
 

 

 

6.         Who benefits from a trademark?

The Registered Proprietor of a trademark can create establish and protect the goodwill of his products or services, he can stop other traders from unlawfully using his trademark, sue for damages and secure destruction of infringing goods and or labels.

The Government earns revenue as a fee for registration and protection of registration of trademarks

The Legal professionals render services to the entrepreneurs regarding selection registration and protection of trademarks and get remunerations for the same

The Purchaser and ultimately Consumers of goods and services get options to choose the best.

 

 

7. What are the benefits of registering a trademark? 
 The registration of a trademark confers upon the owner the exclusive right to the use the trademark in relation to the goods or services in respect of which the mark is registered and to indicate so by using the symbol (R), and seek the relief of infringement in appropriate courts in the country.  The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc.  Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other.

 

 

8. What are the formalities and government fees for major trademark transactions ?
 ·         For filing new applications there are prescribed forms depending on the nature of application such as  Form TM-1, TM-2, TM-3, TM-8, TM-51 etc.      Fees: Rs.4000/-

·         To file a Notice of Opposition to oppose an application published in the Trade Marks Journal (FormTM-5). Fees: Rs. 2,500/- for each class covered

·         For Renewal of a Regd. trademark (Form TM-12 ). Fees: Rs.5,000/-

·         Surcharge for belated renewal (Form TM-10).Fees: Rs. 3,000/-

·         Restoration of removed mark (Form TM-13) Fees: 5,000/-

·         Application for rectification of a registered trademark (Form TM-26) Fees: Rs. 3,000/-

·         Legal Certificate (Form TM-46) (Providing details of entries in the Register)     Fees: Rs.500/-

·         Preliminary advise of the Registrar as to the registrability of a mark (Form TM-55). Fees: Rs.500/-

·         Copyright search request and issuance of certificate (Form TM-60) Fees: Rs, 5,000/-.

 

9. What are the sources of trademark laws?
 (1)   The national statues i.e., the Trade Marks Act, 1999 and rules made thereunder .

(2)   International multilateral convention.

(3)   National bilateral treaty.

(4)   Regional treaty.

(5)   Decision of the courts.

(6)   Office practice reduced in Manuals and guidelines and rulings of the Courts

(7)   Decision of Intellectual Property Appellate Board.

(8)   Text books written by academician and professional experts.

 

 
10. What does the Register of trademark contain?
  The register of trademark currently maintained in electronic form contains inter alia the trademark  the class and goods/ services in respect of which it is registered including particulars affecting the scope of registration of rights conferred; the address of the proprietors; particulars of trade or other description of the proprietor; the convention application date (if applicable); where a trademark has been registered with the consent of proprietor of an earlier mark or earlier rights, that fact.

 

 

11. Can any correction be made in the application or register?
 Yes.  But the basic principle is that the trademark applied for should not be substantially altered affecting its identity. Subject to this changes are permissible according to rules detailed in the subordinate legislation.

 

 

12. Can a registered trademark be removed from the register?
Yes.  It can be removed on application to the Registrar on prescribed form on the ground that the mark is wrongly remaining on the register.  The Registrar also can suo moto issue Notice for removal of a registered trademark?

 

FAQ on Consumer Forum

cf01. Who can approach the redressal agencies established under the Consumer Protection Act for redressal of his grievances?


A consumer, as defined in section 2(1)(d) of the Act, or any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force or the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest, or in case of death of a consumer, his legal heir or representative, can file a complaint in writing alleging that an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; or the goods bought by him or agreed to be bought by him suffer from one or more defects; or the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; or a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price – (a) fixed by or under any law for the time being force; (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties; or goods which will be hazardous to life and safety when used are being offered for sale to the public (i) in contravention of any standards relating to safety of such goods as required to be complied with, by or any law for the time being in force of (ii) if the trader could have known with due diligence that the goods so offered are unsafe to the public; or services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such persons could have known with due diligence to be injurious to life and safety; with a view to obtaining any relief provided by or under the Act.

02. How to approach and where to approach and what are the requirements for filing a complaint before the State Commission and the District Forums


No format is prescribed for filing a complaint. A complaint can be filed even on plain paper. The services of an Advocate are not required. Complaints, where the value of goods or services and the compensation, if any, claimed does not exceed Rs. 20lakhs, can be filed before a District Forum where the Opposite Party or each of the opposite parties where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or any of the opposites parties, where there are more than one at the time of institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given or any of the opposite parties, who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution,; or the cause of action wholly or in part had arisen.
In the case where the value of the goods or services and the compensation, if any, claimed exceeds Rs.20 lakhs but does not exceed Rs. 1 crore, in that event such a complaint can be filed before the State Commission having jurisdiction and in case where the value of the goods or services or compensation, if any, claimed exceedsRs. 1 crore, in that event the complaint straightaway can be filed in the National Commission situated at New Delhi.

03. What are the requirements for filing an Appeal against the orders of the District Forums to the State Commission?


As per the provisions of the Act, any person aggrieved by an order passed by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of order. The period of limitation for filing the appeal is to be computed from the date of communication of the order to the aggrieved party. Proviso to Section 15 of the Act provides that the State Commission may entertain an appeal even after the expiry of said period of 30 days if it is satisfied that there was sufficient cause for not filing the same within that period. The procedure for filing the statutory appeal against the orders of the District Forums to the State Commission has been laid down in Rule 8 of the Delhi Consumer Protection Rules, 1987.
04. In case the orders passed by the redressal agencies are not implemented, remedy available to aggrieved person


In case the orders passed by the District Forum or by the State Commission, as the case may be, are not implemented, the aggrieved person has a right to file an Application for implementation of the orders, under section 25 and/or under section 27 of the Act, as he may be advised.

What is Natural justice?

natural juticeThe word Natural justice denotes that under the given circumstances reasonability and principles of non- arbitrainess have been followed, means what a reasonable person would have done in the given circumstances, that is the Natural justice. It is a principle of Common law, however in India there is written law so there is no application of principles of Natural justice but where any law is silent about natural justice then courts will apply principles of natural justice on their own.

Traditionally,there are two types of natural justice;Rule against Bias, Rule of Fair hearing.

Rule of Bias

The rule of bias  means to exclude any kind of undue favour to a particular person. This principle is derived from the maxim nemo judex in re sua which literally means that a man cannot be a judge in his own cause. This is known as the rule against bias. That bias disqualifies an individual from acting as a judge flows from two principles:

  • No one should be a judge in his own cause
  • Justice must not only be done but seen to be done

Bias is usually of three types:

  1. Pecuniary bias
  2. Personal bias
  3. Bias as to subject matter or policy bias

Pecuniary bias

A direct pecuniary interest, howsoever small or significant, will disqualify a person from acting as a judge buy there must be direct interest no far fetched interest.

Personal bias

It happens when adjudicator has some relationship with one of the party of the case.

Bias as to subject matter

It happens when adjudicator interest is involved in the subject matter.

Audi Alteram Partem:- Rule of fair hearing

The Audi Alteram partem rule ensures that no one should be condemned  unheard. It is the first principle of civilized jurisprudence that a person against whom any action is sought to be taken, or whose right or right is being affected, should be given a reasonable opportunity to defend himself.

Thus rules of natural justice ensures  fairness in all actions. It embodies rules of reasonability and non-arbitrariness, which is the spirit of every administrative action. Every legal system  is based on this principle, this is the foundation of every legal system. No legal system can exist by excluding this principle.

FAQs on IPR

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