Frequently Asked Question about Trademark, Copyright, Patent, Design Registration in India

1.What is meaning of IP ( Intellectual Property ) ?

IP is the Property, which has been created by your own intelligence. It is the result of persons Intellectual Activities. Thus Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislation. Intellectual Property rights reward creativity & human endeavor which fuel the progress of humankind.

The intellectual property is classified into different categories i.e.

a. Patent b. Design c. Trade Marks d. Copyright e. Geographical Indications f. Lay out designs of integrated circuits g. Protection of undisclosed information/Trade Secret according to TRIPs h. Plant verities Act.

2.What is Trade Marks / Service Marks :-

A ‘Mark/Brand` may consist of a word or invented word, signature, device, letter, numeral, brand, heading, label, name written in a particular style, the shape of goods other than those for which a mark is proposed to be used, or any combination thereof or a combination of colors and so forth. Subject to certain conditions, a trademark may also be symbolized by the name of a person, living or dead.

For the purpose of registration, a mark chosen should be capable of distinguishing goods or services of one person from those of the others. Further it should not be deceptively similar to an existing mark of another person and not the one expressly prohibited under the Act.

The marks devoid of any distinctive character, or which are only indicative of the kind, quality, quantity, purpose, value or geographical origin of the goods, or which are marks already in vogue in the trade due to their customary use may not be registered. But these disqualifications do not apply to marks, which have already acquired distinction due to their popularity and consistent use. Internationally acclaimed brand names are freely available for use in India.

3.Any one can apply for Trade Marks Registration ?

A person who claims to be the proprietor of the trademark can apply for the registration of its mark for goods as well services.
A person may apply for registration of a trade mark to the Trademark office under whose jurisdiction the principal place of the business of the applicant in India falls.
In case, the principal place of business is outside India, then the application can be filed in the Trademark office under whose jurisdiction the office of the lawyer appointed by you is located.
In case of a company about to be formed, anyone may apply in his name for subsequent assignment of the registration in the company’s favor.
Before making an application for registration it is prudent to conduct a trademark search in the Trademark office in context of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one.

4.How it regulate ?

The Trade Marks Act, 1999

The Trade Marks Rules, 2002. The law is based mainly on the United Kingdom Trade Marks law and provides for the registration of trademarks which are being used, or which will be used, for certain goods to indicate a connection between them and some person who has the right to use the marks with or without any indication as to the identity of the person

5.What Symbol have to adopt for better Protection ?

symbol can be used only once the mark is registered with the Trade Marks Registry and registration certificate is received by the applicant. Where an application is pending before the registry, it is not proper or legal to use the above mentioned mark. Pending registration, one can use the words TM within a circle indicating pending registration of a trade mark or the words SM within a circle indicating pending registration or a service mark.

6.What Remedies after getting Registration of the Trade Marks ?

Through registration of your Intellectual properties under relative Acts the Registered Proprietor / owner may acquire legal remedies like

• Civil Remedies : IPR owner have right to file civil suit before appropriate court for compensation and temporary / permanent injunction against the person / firms/ companies who are involved in infringement or passing off of your mark, name, style, designs, goods or services.
• Criminal : IPR owner have right to file criminal Complaints
  Remedies : against the person who are infringing your I.P.R.
• Administrative : Trade Mark, Design, Patent and other IPR registered owner Remedies have rights to file complaint before the Police officer of the rank of C.S.P.. against infringer to got seized or banded the goods, process, designs or services on the spot.

7.What is Copyright ?

Copyright is the intellectual work of the author / owner / applicant by birth of the “work”. it may be different type –

Copyright Covers. i) Literary, dramatic and musical work. ii) Artisitic work. iii) Cinematographic film includes sound track and video film. iv) Computer programmes/softwares ,

8.What is the Duration of Copyright ?

a) If published within the life time of the author of a literary work, the term is for the life time of the author plus 60 years, after such period it may not renew. (b) For cinematographic films, records, photographs, posthumous publication, anonymous publication, works of government and international agencies, the term is 60 years from the beginning, of the calendar year following the year in which the work was published

9.What is mean by an article under the Designs Act, 2000 ?

Under the Designs Act, 2000 the “article” means any article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately.

10.What is meaning of ‘Design’ under the Designs Act, 2000 ?

‘Design’ means only the features of outer shape, configuration, pattern or surface or composition of lines or colour or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle or construction or any thing which is in substance a mere mechanical device, and does not include any trade mark, as define in clause (v) of sub-section of Section 2 of the Trade and Merchandise Marks Act, 1958, property mark or artistic works as defined under Section 2(c) of the Copyright Act, 1957.

11.What is the object of registration of Designs?

Object of the Designs Act to protect new or original designs so created to be applied or applicable to particular article to be manufactured by Industrial Process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The important purpose of design Registration is to see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.

12.What are the main requirements for the registration of ‘design’ under the Designs Act, 2000?

(1) The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter. Practical example: The known shape of “Lal-kila” when applied to a rice holder the same is registrable. However, if the design for which application is made does not involve any real mental activity for conception, then registration may not be considered.

(2) The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registrable under the Act.

(3) The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act.

(4) The features of the design in the finished article should appeal to and are judged solely by the eye.

(5) Any mode or principle of construction or operation or any thing which is in substance a mere mechanical device, would not be registrable design.

(6) The design should not include any Trade Mark or property mark or artistic works as define under the Copyright Act, 1957.

When does the Applicant for Registration of Design get the registration certificate?

When an application for registration of a Design is in order, it is accepted and registered and then a certificate of registration is issued to the applicant.

What is a Register of Designs?

The Controller of Designs is a document maintained by The Patent Office, Kolkata as a statutory requirement. It contains the design number, class number, date of filing (in this country) and reciprocity date (if any), name and address of Proprietor and such other matters as would affect the validity of proprietorship of the design and it is open for public inspection on payment of prescribed fee & extract from register may also be obtained on request with the prescribed fee.

13.What is the effect of registration of design?

The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.

14.Is it possible to re-register a design in respect of which Copyright has expired?

No. A registered design, the copyright of which has expired cannot be re-registered.

15.How one can ascertain whether registration subsists in respect of any design?

For ascertaining whether registration subsists in respect of a design, a request should be made to the Patent Office, Kolkata. If the serial number of the registered design is known, the request should be made on Form 6, otherwise on Form 7, together with fee of Rs. 500/- or Rs. 1,000/- respectively. Each such request should be confined to information in respect of a single design.

16.What is piracy of a Design?

Piracy of a design means the application of a design or its imitation to any article belonging to class of articles in which the design has been registered for the purpose of sale or importation of such articles without the written consent of the registered proprietor. Publishing such articles or exposing terms for sale with knowledge of the unauthorized application of the design to them also involves piracy of the design.

17.Can the Registration of a Design be rectified ?

The registration of a design may be cancelled at any time after the registration of design on a petition for cancellation in form 8 with a fee of Rs. 1,500/-to the Controller of Designs on the following grounds:

1. That the design has been previously registered in India or
2. That it has been published in India or elsewhere prior to date of registration or
3. The design is not new or original or
4. Design is not registrable or
5. It is not a design under Clause (d) of Section 2.

18.How does a registration of design stop other people from exploiting ?

Once a design is registered, it gives the legal right to bring an action against those persons (natural/legal entity) who infringe the design right, in the Court not lower than District Court in order to stop such exploitation and to claim any damage to which the registered proprietor is legally entitled. However, it may please be noted that if the design is not registered under the Designs Act, 2000 there will be no legal right to take any action against the infringer under the provisions of the Designs Act, 2000.

The Patent Office does not become involved with any issue relating to enforcement of right accured by registration, similarly The Patent Office does not involve itself with any issue relating to exploitation or commercialization of the registered design.

19.What is meant by classification of goods mentioned in the Third Schedule ?

In the third Schedule of Design Rules, 2001 the classification of goods has been mentioned. The classification is based on Locarno Agreement. Only one class number is to be mentioned in one particular application. It is mandatory under the Rules. This classification has been made on the basis of Articles on which the design is applied.

20.How can get Patent Registration in India ?

Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement over an existing article. The basic criteria for the registration of patent is that, the invention should be new, useful and industrial applicable. We provide our client’s professional and high quality service that could best meet their requirement. We provide cost effective Patent Registration in India and all parts of the world. Our fee is very fair and practical and therefore the clients entrust their cases to us and expect satisfactory service with an excellent cost to performance ratio.

21.What is the Patent Registration Process ?

For the Registration of Patent first an application is to be filed within the territorial limits where the applicant is residing. Some documents are also required. After this the specification is to be examined completely, then publication is to be made. If there is objection then satisfactory explanation is to be given by the applicant. If no opposition is made then patent is granted to the applicant.

22.What are the Type of the Patent ?

Normally two type of patent are available in India :- 1. Product Patent and 2. Process Patent.

23.What is Period to get Patent in India ?

No, prescribed period available for registering Patent in India but it may 3 to 5 year long in different steps of Patent : –

STEP 1: Request the Patent Search Study.
STEP 2: Request the Patent Application.
STEP 3: Once your patent has been granted, obtain your Patent Issue.
The attorneys in charge of your registration will complete each one of the above procedures

For the patent services we have separated the process in 3 different stages that we call the ” Steps”: STEP 1 Patent Search – STEP 2 Patent Application -STEP 3 Patent Issue. The reason of the separation is that you pay only for the services received, and only when you advance in the process of registration you are advised to request the following service(s).