Short Question & Answers

1). Paris Convention

Paris Convention for the Protection of Industrial Property, 1883. The IS

Convention for the protection of Industrial Property, signed in Paris, on Paris March
20, 1883 was one of the first intellectual property treaties. It is established a Union
for the protection of Industrial property. The Convention is still in force.

The Paris Convention is administered by the World Intellectual Property

Organization (WIPO), based in Geneva, Switzerland. India's membership into the
convention came into force on December 7, 1998.

2). Berne Convention

For the protection of Literary and Artistic Works,1986. Adopted on September

9, 1886 at Berne and entered into force on December 4,1887. This Convention on
Copyrights rests on 3 basic principles

1). National Treatment,

2). Automatic Protection
3). Independence of Protection

It also contains a series of provisions determining the minimum protection to

be granted.

3). Madrid Agreement, 1891

The agreement was established in 1891 for the purpose of providing a

mechanism that would allow for a single and inexpensive international trademark
registration and to eliminate the need for filing, prosecuting or maintaining separate
registrations in multiple countries.

Protocol Relating to the Madrid Agreement Concerning the International

Registration of Marks:

Adopted on June 27, 1989 at Madrid and entered into force on December 1, 1995.
The Madrid Agreement facilitates the registration of trademarks outside India. it
came into force in India from July 8, 2013.

4). Patent Cooperation Treaty (PCT),1970

Adopted on June 19, 1970 at Washington D.C. and entered into force on
January 24,1978. It facilitates patent protection for an invention simultaneously in a
large number of countries; it came into force in India from December 7,

5). The World Intellectual Property organization (WIPO), 1970

The World Intellectual Property Organization (WIPO) was established by a

convention of 14 July 1967, which entered into force in 1970. The origin of WIPO
goes back to 1883 and 1886 when the Paris Convention for the protection of
Industrial Property and the Berne Convention for the Protection of Literary and
Artistic Works, respectively, were concluded. Both Conventions provided for the
establishment of an
international bureau. The two bureaus were united in 1893 and, in 1970, were
replaced
by the World Intellectual Property Organization, by virtue of the WIPO Convention.

WIPO's objectives are to promote intellectual property protection throughout

the world through co-operation among states and, where appropriate, in
collaboration with any other international organization. WIPO also aims to ensure
administrative cooperation among the intellectual property unions created by the
Paris and Berne Conventions and sub treaties concluded by the members of the
Paris union.

6. General Agreement on Tariffs and Trade (GATT), 1948

The General Agreement on Tariffs and Trade (GATT) is a legal agreement

between many countries, whose overall purpose was to promote international trade
by reducing or eliminating trade barriers such as tariffs or quotas. According to its
preamble, its purpose was the “substantial reduction of tariffs and other trade
barriers and the elimination of preferences, on a reciprocal and mutually
advantageous basis."

General Agreement on Tariffs and Trade (GATT)

Type Multilateral Treaty
Signed 30 October 1947
Location Geneva, Canton, Switzerland

The GATT was first discussed during the United Nations Conference on
Trade and Employment and was the outcome of the failure of negotiating
governments to create the International Trade Organization (ITO). It was signed by
23 nations in Geneva on 30 October 1947, and took effect on 1 January 1948.

7. World Trade Organization (WTO), 1995

It is an intergovernmental organization that is concerned with the regulation of

international trade between nations. The WTO officially commenced on 1 January
1995 under the Marrakesh Agreement, signed by 123 nations on 15 April 1994,
replacing the General Agreement on Tariffs and Trade (GATT), which commenced in
1948. It is the largest international economic organization in the world.

World Trade Organization (WTO-1995)

Formation I January 1995
Type International Trade Organization
Purpose Reduction of tariffs and other barriers to trade
Headquarters Centre William Rappard, Geneva, Switzerland

8. The Agreement on Trade Related Aspects of Intellectual Property Rights

(TRIPS), 1 January 1995
 The Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS) is an international agreement administered by the World Trade Organization
(WTO) that sets down minimum standards for many forms of intellectual property
(IP) regulation as applied to nationals of other WTO Members. It was negotiated at
the end of the Uruguay Round of the General Agreement on Tariffs and Trade
(GATT) in 1994. The TRIPS agreement introduced intellectual property law into the
international trading
system for the first time and remains the most comprehensive international
agreement
on intellectual property to date.

9. European Patent convention, 1978

The European Patent Convention EPC began to operate in 1978 and has 17
members states. EPC was the first to introduce specific provisions for biotechnology
Inventions, including the need for depositing cultures of microorganisms for which
patent are sort and Exclusion of plant and animal varieties bred through classical
methods from patent coverage.

10). Fair Use

In the doctrine of fair use, the law permits limited use of copyrighted material
without a sanction from the copyright owner. It provides the limitations to copyright to
balance the interest of the copyright owner and the public distribution. It is otherwise
considered an infringement of copyright.

Section 107 of the Copyright Act gives examples of purposes that are
favoured by fair use: “criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, [and] research.” Use for one of
these purposes is not automatically fair, and uses for other purposes can be fair.

Fair use is the right to use a copyrighted work under certain conditions
without permission of the copyright owner. The doctrine helps prevent a rigid
application of copyright law that would stifle the very creativity the law is designed to
foster. There is no legal formula or rule to determine what percentage or amount of a
copyrighted work you can use under the fair use doctrine. Using small portions from
a copyrighted work is more likely to be considered fair use than using a larger portion
of the work.

Under this law, fair use is permitted for the following purposes:
 Private study,
 Research,
 Criticism,
 Review,
 Journalistic reporting, inter alia.

11). Rights of Performers

 1. Performer has right to make sound or visual recording: A performer has
the right to make the sound or visual recording. He can also give consent to
other people to record the live performance. Without the consent of the
performer, no other person can make use of that sound recording. But, in
case, their performance is for the cinematograph film and the written
agreement is made consenting the incorporation of his performance in such
film then all the rights will, therefore, be enjoyed by the producer of such film
irrespective of whether the performer is a singer or actor.

2. Performer has the right to produce the sound or visual recording: A

performer may also become producer of the sound or visual recording and
can enjoy all the rights that a producer enjoys such as reproducing a number
of copies, giving the copies for commercial rental, communicating the work to
the public etc. But for that purpose, the performer must have the prior
permission from the individual copyright owner like lyricist and music
composer and should have the certificate related to the sound or visual
recording by the competent authority.

3. Performer has the right to broadcast performance: Performers can

prevent others from broadcasting their live performance. In case the consent
of the performer is not taken and any other individual is broadcasting his
performance then it will amount to copyright infringement. But, if the
performance is for the cinematograph film and then rights will be enjoyed by
the producer of the cinematograph film but if the performance is commercially
exploited for other purposes than such film then the performer has the right to
claim the royalties.

4. Performer has the right to communicate the work other than by

broadcast: Performer can use other means to communicate with the public
than by means of broadcast. Broadcast means communication to the public
either by means of wireless diffusion or by wire.

Some Important Case Laws

 One of the earliest cases where the performers rights came into question and
where it was completely denied by the court to recognize the performer’s right
in the cinematograph film was in Fortune Films International v. Dev Anand,
here the court held that an actor has no right to control the use of their
performance in the film. The actors were given a fee for their performance and
after that the producer was free to use their performance in whatever they
wish to use it. But with the amendment in the Copyright Act in 1994,
performer’s rights were given recognition.

 In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High

Court held that copyright and performers rights are two different things and in
case the song is re-recorded then the prior permission of the original singer is
required.
  In Neha Bhasin v. Anand Raj Anand, the court addressed the issue that what
will constitute the live performance, here it held that whether the performance
is recorded in the studio or in front of the audience, for the first instance, both
will be called live performance and if anyone use such performance without
the consent of the performer then performer’s rights is said to be infringed.

 Other than the abovementioned decisions, there has not been much
development in the field of performer’s rights in India. But with the evolution of
technology, one may expect in the future that new issues will arise testing the
provisions of the performer’s rights.

12). Remedies against performers Rights infringement

The remedies are available against the infringer of performer’s right in Section
55 and also from Section 63 to 70 of the Copyright Act. The following remedies may
be availed:

 Civil Remedies: The owner of the performer’s right or his exclusive licensee may
go to the court and obtain the injunction either temporary or permanent or they
may also claim damages.

 Criminal Remedies: Not only civil remedy but criminal remedy is also available
against the infringer. The infringer may be sentenced for six months which may
extend up to three years or may be liable to pay a fine of Rs. 50,000 to Rs.
2,00,000 or both.

 Anton Pillar Order: Sometimes the court gives permission to the plaintiff, on an
application by him, to enter into the defendant’s place along with the attorney and
inspect the relevant documents. This is necessary because the defendant may
remove the documents from his premises if he knows beforehand that the
inspection is going to happen or any search warrant is released by the court.

13). Property Mark

A mark used for denoting that movable property belongs to a particular

person is called a property mark.

Property Marks means any Participating Property's trade names,

trademarks, service marks, domain names and other visual representations thereof,
including logos, designs, symbols, word marks, images, colours and colour
combinations, trade dress, characters and other publicity rights, or other indicia of
ownership owned or used by such Participating Property.

Property marking is a process where a physical mark is etched onto a piece

of property such as a bike, laptop or tools. The mark is made by a specially-designed
machine which embosses the property item with small dots in the pattern of the
owner's Eircode – to make it harder for criminals to sell on stolen property.
 Property marks are distinctive signs, symbols, or identifiers used to indicate
ownership of a particular item or property. These marks can be found on various
objects, ranging from livestock and tools to machinery and personal belongings.
Historically, property marks have been crucial in preventing theft, facilitating the
identification of lost or stolen goods, and asserting ownership rights. Common forms
of property marks include:

1. Branding: Often used on livestock, branding involves burning a unique

symbol into the animal's skin.
2. Engraving: Frequently used on tools, machinery, and jewelry, engraving
involves inscribing a unique mark or name onto the item.
3. Labels or Tags: These can be attached to various items, such as clothing,
equipment, or luggage, indicating ownership.
4. Paint or Markers: Used on larger items like vehicles or containers, paint or
marker identifiers provide a visual indication of ownership.

Property marks serve as a practical and legal means to establish and protect
property rights, helping to resolve disputes and maintain order in personal and
commercial contexts.

14). Rights of Design Holders

The Designs Act, 2000, in India provides legal protection for the aesthetic
aspects of an article. This includes the shape, configuration, pattern, ornamentation,
or composition of lines or colors applied to any article, whether in two-dimensional or
three-dimensional form. Here are the key aspects of the rights of design holders
as per the Designs Act, 2000:

1. Exclusive Rights: The registered design holder has the exclusive right to apply the
design to any article in any class in which the design is registered. This includes the
right to prevent others from using the design without permission.

2. Duration of Protection: The protection under the Designs Act, 2000 lasts for an
initial period of ten years from the date of registration. This period can be extended
by an additional five years, providing a maximum protection duration of fifteen years.

3. Criteria for Protection: To be eligible for registration under the Designs Act, 2000, a
design must be:

o New or Original: The design should not have been disclosed to the public anywhere
in the world prior to the date of application.

o Significantly Distinguishable: The design should be significantly distinguishable

from known designs or a combination of known designs.

o Not Scandalous or Obscene: The design should not contain any scandalous or
obscene matter.

o Not Contrary to Public Order or Morality: The design should not be contrary to
public order or morality.
4. Registration Process: The design must be registered with the Controller General of
Patents, Designs, and Trade Marks. The application should include the
representation of the design, along with the class of articles to which it is to be
applied.

5. Infringement Remedies: The registered design holder can take legal action against
any person who, without permission, applies the design to any article in the same
class, or any fraudulent or obvious imitation thereof. Remedies include:

o Injunctions: Court orders to stop the infringing activities.

o Damages: Monetary compensation for the losses suffered due to infringement.
o Seizure of Infringing Articles: Seizure and destruction of infringing articles.

6. Legal Provisions: Key provisions under the Designs Act, 2000 include:

o Section 2(d): Defines "design" and sets out the criteria for what constitutes a
protectable design.
o Section 11: Details the term of copyright in registered designs.
o Section 22: Outlines the remedies for piracy of registered designs.

7. International Design Protection: India is a member of the Paris Convention and

the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS), providing a framework for international protection of designs.

The Designs Act, 2000, thus ensures that creators of industrial designs have
exclusive rights to use and monetize their creations, fostering innovation and
protecting against unauthorized copying and use.

15). TRIPS
The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) is a comprehensive international agreement that sets out minimum
standards for various forms of intellectual property (IP) regulation as applied to
nationals of other WTO Members. Key aspects and legal provisions of TRIPS
include:

1. Purpose and Scope: TRIPS aims to harmonize intellectual property laws globally,
promoting effective and adequate protection of IP rights and ensuring that measures
and procedures to enforce these rights do not themselves become barriers to
legitimate trade.

2. Categories of IP Rights:

o Copyrights and Related Rights: Includes protection for literary and artistic
works (Article 9), performances, broadcasts, and sound recordings (Articles 11-
14).

o Trademarks: Provides protection for distinctive signs (Article 15), including

provisions on registration and duration (Articles 18-19).
 o Geographical Indications: Protection for names indicating the origin of goods
with specific qualities or reputation (Articles 22-24).

o Patents: Standards for patent protection (Article 27), including criteria of novelty,
inventive step, and industrial applicability, with a minimum term of protection of
20 years (Article 33).
o Industrial Designs: Protection for the aesthetic aspects of products (Articles 25-
26).

o Trade Secrets: Protection for undisclosed information and trade secrets (Article
39).

3. Enforcement:
o General Obligations: Members must ensure enforcement procedures are
available under their law to permit effective action against infringement of IP
rights (Article 41).

o Civil and Administrative Procedures and Remedies: Includes

requirements for fair and equitable judicial procedures (Articles 42-49).

o Provisional Measures: Allows for temporary measures to prevent

infringement (Article 50).

o Border Measures: Procedures for the suspension of release of counterfeit

and pirated goods by customs authorities (Articles 51-60).

o Criminal Procedures: Provides for criminal procedures and penalties to be

applied in cases of wilful trademark counterfeiting or copyright piracy on a
commercial scale (Article 61).

4. Flexibilities and Exceptions:

o Public Health and Compulsory Licensing: Allows for compulsory licensing and
other measures to address public health needs (Article 31). The Doha
Declaration on the TRIPS Agreement and Public Health (2001) affirms these
flexibilities, particularly in the context of pharmaceuticals.

o Transition Periods: Allows for extended implementation periods for developing

and least-developed countries (Articles 65-66).

5. Dispute Settlement: TRIPS disputes between WTO members are subject to the
WTO’s Dispute Settlement Understanding (Article 64), allowing members to resolve
disputes regarding the interpretation and application of TRIPS provisions.
6. Implementation and Compliance: Members are required to comply with the
minimum standards of IP protection set out in TRIPS, but they are free to provide
more extensive protection in their national laws (Article 1).

TRIPS is integral to the global IP framework, promoting innovation and economic

development while balancing the interests of IP holders and public welfare.

16). WIPO

The World Intellectual Property Organization (WIPO) is a specialized agency

of the United Nations dedicated to the promotion and protection of intellectual
property (IP) rights worldwide. Established in 1967, WIPO provides a global forum
for IP services, policy, information, and cooperation.

Key Aspects of WIPO:

1. Purpose and Objectives:

o Promotion of IP Protection: WIPO aims to promote the protection of IP

across the globe to foster creativity and innovation.
o Development of IP Policies: It provides a platform for the development and
harmonization of international IP laws and standards.
o Support for Member States: WIPO assists member states in developing
balanced and accessible IP systems.

2. WIPO Treaties and Legal Provisions:

o Paris Convention for the Protection of Industrial Property (1883): One of

the oldest treaties administered by WIPO, it provides protection for industrial
property, including patents, trademarks, and industrial designs.

o Berne Convention for the Protection of Literary and Artistic Works

(1886): Ensures the protection of literary and artistic works and the rights of
authors.

o Patent Cooperation Treaty (PCT) (1970): Facilitates the filing of patent

applications in multiple countries through a single international application.

o Madrid System for the International Registration of Marks (1989): Allows

for the registration of trademarks in multiple jurisdictions with a single
application.

o Hague System for the International Registration of Industrial Designs

(1925): Simplifies the process of protecting industrial designs in multiple
countries.

o WIPO Copyright Treaty (WCT) (1996): Strengthens the international

protection of copyrights in the digital environment.
 o WIPO Performances and Phonograms Treaty (WPPT) (1996): Provides
international protection for performers and producers of phonograms.

3. Dispute Resolution:

o WIPO Arbitration and Mediation Center: Provides services for the

resolution of international commercial disputes between private parties
involving IP rights through arbitration and mediation.

4. Capacity Building and Technical Assistance:

o Support for Developing Countries: WIPO provides technical assistance,

capacity building, and training programs to help developing countries and
least-developed countries enhance their IP systems.

o Educational Resources: Offers various educational and informational

resources to raise awareness about IP issues and promote IP literacy.

5. Global IP Systems:

o International Patent System (PCT): Simplifies the process of seeking patent

protection internationally.

o International Trademark System (Madrid): Streamlines the process of

trademark registration in multiple countries.

o International Design System (Hague): Facilitates the international

registration of industrial designs.

6. Policy and Legal Framework:

o Development of International IP Norms: WIPO plays a key role in

developing international IP norms and standards to address emerging
challenges and opportunities in IP.

o Advisory and Legislative Assistance: Provides advisory services and

legislative assistance to member states for the formulation and
implementation of national IP laws in compliance with international standards.

WIPO's comprehensive framework and services support the global protection

and enforcement of IP rights, fostering innovation, creativity, and economic
growth worldwide.

17). Passing off

"Passing off" is a common law tort used to enforce unregistered trademark rights. It
protects the goodwill of a business from misrepresentation. The essence of passing
 off is to prevent one party from misleading the public into believing that its goods or
services are those of another party.

Legal Provisions

Elements of Passing Off

To succeed in an action for passing off, a plaintiff generally needs to establish three
key elements:

1. Goodwill: The plaintiff must show that their goods or services have acquired
goodwill or reputation in the market and are known by some distinguishing feature.

2. Misrepresentation: The plaintiff must demonstrate that the defendant has

misrepresented their goods or services as being those of the plaintiff. This
misrepresentation must be likely to deceive or confuse the public.

3. Damage: The plaintiff must show that they have suffered or are likely to suffer
damage as a result of the misrepresentation.

Legal Framework in Different Jurisdictions

 United Kingdom: The law of passing off is well-established in the UK. It is primarily
governed by common law principles developed through case law. The leading case
often cited is Reckitt & Colman Ltd v Borden Inc [1990] 1 WLR 491 (the "Jif Lemon"
case), which solidified the "classic trinity" of goodwill, misrepresentation, and
damage.

 United States: While the U.S. does not explicitly use the term "passing off," similar
concepts are covered under the Lanham Act (15 U.S.C. § 1125(a)), which addresses
false designation of origin and false advertising.

 India: Passing off is recognized under the Indian Trade Marks Act, 1999. Section
27(2) provides that nothing in the Act shall affect the right of action against any
person for passing off goods or services as those of another person or the remedies
in respect thereof.

Remedies

The remedies for passing off include:

 Injunction: A court order restraining the defendant from continuing the
misrepresentation.

 Damages: Compensation for any loss suffered by the plaintiff.

 Account of Profits: Requiring the defendant to hand over any profits made from the
misrepresentation.

 Delivery Up: Requiring the defendant to deliver up or destroy infringing materials.

 Passing off is an essential tool for businesses to protect their brands and maintain
their market position against unfair competition.

18). Provisional Specification

Provisional specifications are a temporary form of patent application that

allows inventors to establish an early filing date without the need for a formal patent
claim, oath, or declaration. This type of application is commonly used to secure a
priority date while the inventor continues to develop and refine the invention. The
provisional application must include a detailed description of the invention and can
be filed with the relevant patent office. It lasts for 12 months, during which time the
inventor must file a non-provisional (or regular) patent application to benefit from the
earlier filing date. Provisional specifications are useful for protecting intellectual
property during the early stages of development and for conducting market research
before committing to the more expensive and complex process of obtaining a full
patent.

19). Invention – not patentable

In India, certain inventions are deemed not patentable under the Patents Act, 1970.
Section 3 and Section 4 of the Act outline the categories of inventions that cannot be
patented. These include:

1. Frivolous Inventions: Inventions that are frivolous or contrary to well-established

natural laws (Section 3(a)).

2. Contrary to Public Order or Morality: Inventions whose primary or intended use

would be contrary to public order or morality, or cause serious prejudice to human,
animal, or plant life or health or to the environment (Section 3(b)).

3. Discovery of Scientific Principle or Abstract Theory: Mere discovery of a

scientific principle or the formulation of an abstract theory (Section 3(c)).

4. Discovery of Living Things: Discovery of any living thing or non-living substances

occurring in nature (Section 3(c)).

5. Mathematical Methods or Business Methods: Mathematical or business methods,

computer programs per se, or algorithms (Section 3(k)).

6. Methods of Agriculture or Horticulture: Any method of agriculture or horticulture

(Section 3(h)).

7. Medical, Surgical, Curative, Prophylactic, Diagnostic, Therapeutic, and Other

Treatment of Humans or Animals: Methods for treatment of the human or animal
body (Section 3(i)).

8. Plants and Animals: Plants and animals in whole or any part thereof other than
microorganisms, but including seeds, varieties, and species (Section 3(j)).
9. Traditional Knowledge: An invention which, in effect, is traditional knowledge or
which is an aggregation or duplication of known properties of traditionally known
components (Section 3(p)).

Additionally, Section 4 states that inventions relating to atomic energy are not
patentable. These legal provisions ensure that only those inventions which are novel,
non-obvious, and have practical utility are granted patent protection, promoting
genuine innovation while safeguarding public interest and ethical standards.

20). Geographical Indications

Geographical Indications (GIs) are a form of intellectual property protection that

identifies goods as originating from a specific geographical location, where a given
quality, reputation, or other characteristic of the goods is essentially attributable to
that origin. GIs are used for a wide range of products, including agricultural products,
foodstuffs, wines and spirits, handicrafts, and industrial products.

Legal Provisions in India

In India, GIs are governed by the Geographical Indications of Goods

(Registration and Protection) Act, 1999. Key provisions include:

1. Definition: According to Section 2(1)(e) of the Act, a GI is an indication which

identifies goods as originating from a specific place, where a given quality,
reputation, or characteristic is attributable to its geographical origin.

2. Registration: The Act provides for the registration of GIs. An application for
registration can be made by any association of persons, producers, or any
organization or authority established by or under the law representing the interests of
the producers of the concerned goods (Section 11).

3. Protection: Once registered, GIs are protected, and unauthorized use of a

registered GI by others is prohibited. This helps prevent misuse and ensures that
only those who are entitled to use the indication can do so (Section 21).

4. Duration: The registration of a GI is valid for 10 years and can be renewed from time
to time (Section 18).

5. Infringement and Penalties: The Act provides for remedies in case of infringement,
including civil and criminal actions. Unauthorized use of a registered GI can lead to
penalties, including imprisonment and fines (Sections 20 and 39-44).

Examples
Prominent examples of GIs in India include:
 Darjeeling Tea: Renowned for its distinctive flavor, grown in the Darjeeling district of
West Bengal.

 Pashmina: High-quality wool from the Kashmir region.

 Nagpur Orange: Oranges grown in the Nagpur region of Maharashtra.

Importance
GIs play a crucial role in:

 Economic Development: They help in enhancing the economic prosperity of

regions by promoting and protecting local products.

 Cultural Heritage: They help preserve traditional knowledge and cultural heritage
associated with specific regions.
 Consumer Protection: They ensure that consumers get genuine products with the
qualities they expect.

In conclusion, Geographical Indications are vital for protecting the uniqueness and
reputation of products linked to specific regions, benefiting both producers and
consumers while contributing to the cultural and economic fabric of the area.

21). Assignment of Copy right

The assignment of copyright refers to the transfer of ownership rights in a

copyrighted work from the original owner (the assignor) to another party (the
assignee). This transfer can be either full or partial and is governed by the
Copyright Act, 1957 in India.

Key Provisions

1. Definition and Scope: According to Section 18 of the Copyright Act, 1957, the
owner of a copyright can assign the copyright either wholly or partially and either
generally or subject to limitations. This includes the right to reproduce the work,
distribute copies, perform the work in public, or make adaptations.

2. Form of Assignment: The assignment must be in writing and signed by the

assignor or their duly authorized agent (Section 19(1)). Oral agreements are not
recognized for the assignment of copyright.

3. Specifics of Assignment: The assignment deed must specify:

o The rights being assigned.
o The duration and territorial extent of the assignment.
o The amount of royalty payable, if any, to the assignor.
o Other terms and conditions governing the assignment (Section 19(2)).

4. Validity and Duration: If the period of assignment is not specified, it is deemed to

be five years from the date of assignment. If the territorial extent is not specified, it
applies to the whole of India (Section 19(5)).
5. Reversion of Rights: If the assignee does not exercise the assigned rights within
one year of the assignment, the assignment may be revoked, and the rights may
revert to the assignor unless otherwise agreed upon (Section 19(4)).

6. Termination of Assignment: The assignor can terminate the assignment if the

assignee breaches the terms of the agreement. This is typically subject to the
conditions laid out in the assignment agreement.

Importance

1. Economic Exploitation: Assigning copyright allows the copyright owner to

economically exploit their work by transferring rights to parties who can better market
or distribute the work.

2. Legal Clarity: A written assignment ensures legal clarity regarding the ownership
and use of the copyrighted work, preventing disputes and misunderstandings.

3. Flexibility: Copyright assignment provides flexibility in managing and distributing the

rights to a work, allowing for partial or conditional transfers tailored to specific needs.

Example

For instance, an author may assign the rights to publish and distribute a book
to a publishing company while retaining the rights to adapt the book into a
screenplay. The assignment agreement would detail the scope of the rights
transferred, the duration, and any royalties payable to the author.

In summary, the assignment of copyright is a crucial mechanism in intellectual

property law that facilitates the effective management and exploitation of creative
works, ensuring that both parties' interests are legally protected and clearly defined.

22). Infringement of copy Right

Infringement of copyright refers to the unauthorized use of a copyrighted work

in a manner that violates the exclusive rights granted to the copyright owner under
the Copyright Act, 1957. These exclusive rights include the rights to reproduce,
distribute, perform, display, or create derivative works based on the original work.

Key Provisions

1. Definition: According to Section 51 of the Copyright Act, 1957, copyright is infringed

when any person, without a valid license or permission from the copyright owner,
does anything that the owner has the exclusive right to do.

2. Types of Infringement:

o Direct Infringement: Occurs when a person directly engages in activities

reserved exclusively for the copyright owner, such as copying, distributing, or
publicly performing the work.
 o Secondary Infringement: Involves activities that facilitate or contribute to
infringement by others, such as distributing infringing copies, renting out
infringing works, or providing means to infringe (Section 51(b)).

3. Examples of Infringement:

o Making and selling unauthorized copies of a book or a movie.

o Performing a play or a song in public without permission.
o Distributing pirated versions of software or music.

4. Exceptions and Limitations: Certain acts are not considered infringement under
the Act, including:

o Fair use for purposes such as criticism, comment, news reporting, teaching,
scholarship, or research (Section 52).
o Use of work for private or personal use, including research.
o Reproduction of a work by a teacher or pupil in the course of instruction.

5. Remedies for Infringement:

o Civil Remedies: The copyright owner can seek injunctions to prevent further
infringement, claim damages, or seek an account of profits earned through
infringement (Section 55).

o Criminal Remedies: Infringement of copyright can also attract criminal penalties,

including imprisonment and fines (Section 63).

6. Burden of Proof: In a copyright infringement case, the burden of proof lies on

the plaintiff (copyright owner) to show that the work in question is original and that
there has been an unauthorized use of the protected elements.

Importance

1. Protection of Creators: Ensures that creators and copyright owners can control and
financially benefit from their works, encouraging innovation and creativity.

2. Economic Rights: Safeguards the economic rights of creators by allowing them to

take legal action against unauthorized use of their works.

3. Legal Framework: Provides a clear legal framework for resolving disputes related to
unauthorized use of copyrighted materials.

Example

If a filmmaker produces and distributes copies of a movie without obtaining

the necessary rights from the scriptwriter, this constitutes copyright infringement. The
scriptwriter can seek an injunction to stop the distribution and claim damages for the
unauthorized use of their script.
 In summary, infringement of copyright involves unauthorized actions that
violate the exclusive rights of copyright owners, and the Copyright Act, 1957,
provides comprehensive legal remedies to address and prevent such violations,
protecting the interests of creators and maintaining the integrity of intellectual
property rights.

23). Protection of Intellectual Property in Plant Varieties

The protection of intellectual property in plant varieties is crucial for

encouraging innovation in agriculture and ensuring that breeders can benefit from
their efforts in developing new and improved plant varieties. In India, this protection
is governed by the Protection of Plant Varieties and Farmers' Rights Act, 2001
(PPVFR Act).

Key Provisions

1. Purpose: The PPVFR Act aims to establish an effective system for the protection of
plant varieties, the rights of plant breeders, and farmers' rights. It also encourages
the development of new varieties of plants.

2. Protection Criteria: To qualify for protection under the PPVFR Act, a plant variety
must meet the criteria of being:

o New: Not previously sold or disposed of in India or elsewhere.

o Distinct: Clearly distinguishable from any other variety whose existence is a
matter of common knowledge.
o Uniform: Sufficiently uniform in its essential characteristics.
o Stable: Remains unchanged in its essential characteristics after repeated
propagation (Section 15).

3. Breeders' Rights: The Act grants breeders exclusive rights to produce, sell, market,
distribute, import, and export the protected variety (Section 28).

4. Farmers' Rights: Recognizing the role of farmers in conserving plant varieties, the
Act grants them rights to:

o Save, use, sow, re-sow, exchange, share, or sell their farm produce including
seed of a variety protected under the Act, provided it is not sold under a brand
name (Section 39).
o Be rewarded for their contribution in conserving plant genetic resources (Section
41).

5. Registration of Varieties: Plant varieties must be registered with the Plant Variety
Authority to receive protection. The application must include detailed information
about the variety and the way it meets the protection criteria (Section 14).

6. Duration of Protection: The duration of protection varies:

o For trees and vines: 18 years from the date of registration.

 o For other crops: 15 years from the date of registration.
o For extant varieties: 15 years from the date of notification (Section 24).

7. Benefit Sharing: The Act provides for equitable sharing of benefits arising from the
use of plant genetic resources. Breeders must disclose the use of any genetic
material obtained from farmers, and a portion of the benefits must be shared with the
communities or individuals who have conserved and provided these resources
(Section 26).

8. Infringement and Remedies: Unauthorized use of a registered variety constitutes

infringement. The breeder can seek civil remedies such as injunctions and damages.
Criminal penalties may also apply for certain offenses (Sections 64-72).

Importance
1. Encourages Innovation: Provides incentives for breeders to develop new and
improved plant varieties, enhancing agricultural productivity and sustainability.
2. Protects Farmers: Balances the rights of breeders with the traditional practices of
farmers, ensuring that farmers can continue their customary practices.

3. Biodiversity Conservation: Encourages the conservation of plant genetic

resources by recognizing and rewarding the efforts of farmers and local
communities.

4. Economic Growth: Stimulates economic growth in the agricultural sector by

fostering a competitive market for high-quality plant varieties.

Example

A breeder develops a new, high-yielding variety of wheat that is resistant to

certain pests. By registering this variety under the PPVFR Act, the breeder gains
exclusive rights to commercialize the variety, while farmers can still save and use
seeds from their harvest, ensuring a balance between innovation and traditional
farming practices.

In summary, the Protection of Plant Varieties and Farmers' Rights Act, 2001,
provides a comprehensive legal framework for the protection of plant varieties,
promoting agricultural innovation while safeguarding the rights and interests of
farmers and ensuring the conservation of plant genetic resources.

24). Procedure for the Registration of a Trademark

The registration of a trademark in India is governed by the Trade Marks Act,

1999. The process involves several steps to ensure that the mark meets all legal
requirements and is not infringing on existing marks. Here is a step-by-step outline of
the procedure:

1. Preliminary Search

 Purpose: To check if a similar or identical trademark already exists.

 Procedure: Conduct a search in the trademark database available on the website of
the Controller General of Patents, Designs, and Trade Marks (CGPDTM). This helps
in assessing the likelihood of successful registration.

2. Application Filing

 Form: The application can be filed using Form TM-A.

 Details Required: The application must include:

o The applicant's name and address.

o A clear representation of the trademark.
o A list of goods or services for which the trademark is to be used.
o The class or classes of the goods or services as per the Nice Classification.
o A statement of use or an intention to use the trademark.

 Fee: The applicable fee depends on whether the applicant is an individual, start-up,
or a small enterprise, and whether the application is filed for a single or multiple
classes.

3. Examination

 Procedure: The Registrar of Trademarks examines the application to ensure it

complies with the requirements of the Act.

 Grounds for Examination: The examination includes checking for:

o Absolute grounds for refusal (e.g., the mark is not distinctive, is descriptive, or
is deceptive).
o Relative grounds for refusal (e.g., the mark is identical or similar to an existing
trademark).

 Examination Report: If any objections are raised, an examination report is issued,

detailing the grounds for objection.

4. Response to Examination Report

 Time Frame: The applicant must respond to the examination report within one
month from the date of receipt.

 Procedure: The response should address the objections raised, providing necessary
clarifications or amendments to the application. If required, a hearing can be
requested.

5. Publication in the Trademark Journal

 Purpose: To invite opposition from the public.

 Procedure: If the Registrar is satisfied with the response, the trademark is published
in the Trademark Journal.

 Opposition Period: Any person can file an opposition within four months from the
date of publication.

6. Opposition Proceedings

 Notice of Opposition: If an opposition is filed, the applicant is notified.

 Counter-Statement: The applicant must file a counter-statement within two months

of receiving the notice.

 Evidence and Hearing: Both parties submit evidence and may be called for a
hearing.

 Decision: The Registrar decides the case based on the submissions and hearing.

7. Registration

 Certificate of Registration: If no opposition is filed or if the opposition is decided in

favor of the applicant, the trademark is registered, and a certificate of registration is
issued.

 Validity: The trademark is registered for a period of ten years from the date of
application, renewable indefinitely for further periods of ten years each.

8. Renewal

 Procedure: The trademark can be renewed within six months before the expiry date
by filing the prescribed form and paying the renewal fee.

 Grace Period: There is a grace period of six months after the expiry during which
the trademark can still be renewed with the payment of additional fees.

Conclusion

The trademark registration process in India is designed to ensure that only

unique and legally compliant trademarks are granted protection. The steps involved,
from the preliminary search to the issuance of the registration certificate, provide
multiple checks and opportunities for public objection, ensuring that the rights of
existing trademark holders and the public are safeguarded. By following this
procedure, applicants can secure legal protection for their trademarks, which is
essential for establishing and maintaining brand identity in the market.

25). Procedure for Obtaining a Patent

Obtaining a patent in India is governed by the Patents Act, 1970, and the Patents
Rules, 2003. The process involves several steps to ensure that the invention meets
 all legal requirements and is novel, non-obvious, and useful. Below is a step-by-step
outline of the procedure:

1. Preliminary Steps

 Patent Search: Conduct a thorough search in the patent database to ensure

that the invention is novel and has not been previously patented.

 Patentability Assessment: Assess whether the invention meets the criteria

of patentability: novelty, inventive step, and industrial applicability.

2. Preparation of the Patent Application

 Types of Applications: Decide the type of application to file:

o Provisional Application: If the invention is in the early stages of development,

this can be filed to secure an early filing date. It must be followed by a
complete specification within 12 months.
o Complete Application: A full description of the invention, including the best
method of performing it.

 Documents Required:

o Form 1: Application for Grant of Patent.

o Form 2: Provisional/Complete Specification.
o Form 3: Statement and Undertaking Regarding Foreign Applications.
o Form 5: Declaration as to Inventorship.
o Form 9: Request for Publication (optional).
o Form 18: Request for Examination.
o Abstract of the Invention.
o Drawings (if any).

3. Filing the Patent Application

 Where to File: The application can be filed electronically at the Indian Patent Office
or manually at one of its branches (Kolkata, Mumbai, Chennai, or Delhi).

 Filing Fee: Pay the requisite fee, which varies depending on the type of applicant
(individual, small entity, or large entity) and the nature of the application (provisional
or complete).

4. Publication

 Automatic Publication: The patent application is automatically published 18 months

from the date of filing or priority date.

 Early Publication: By filing Form 9, the applicant can request early publication,
usually within one month from the date of request.

5. Examination
 Request for Examination: File Form 18 to request the examination of the
application. This request can be made within 48 months from the date of filing or
priority date.

 Examination Report: The Controller issues the First Examination Report (FER),
detailing any objections.

 Response to FER: The applicant must respond to the FER, addressing all
objections, within six months from the date of the report (extendable by three
months).

6. Pre-Grant Opposition

 Filing Opposition: Any person can file a pre-grant opposition after publication but
before the grant of the patent, on various grounds such as lack of novelty or
inventive step.

 Hearing: The Controller may conduct a hearing if the opposition is found to have
merit.

7. Grant of Patent

 Decision: If all objections are resolved, and there is no valid opposition, the patent is
granted.

 Patent Certificate: The Patent Office issues a certificate of grant, and the details are
published in the Patent Journal.

8. Post-Grant Opposition

 Time Frame: Within one year from the date of grant, any interested person can file a
post-grant opposition.

 Opposition Board: The opposition is examined by an Opposition Board, which

provides its recommendations to the Controller.

 Decision: The Controller decides the outcome based on the Board's

recommendations and submissions from both parties.

9. Maintenance of Patent

 Annual Fees: Pay annual renewal fees to maintain the patent, starting from the third
year of the patient’s life.

 Restoration: If the patent lapses due to non-payment of fees, it can be restored

within 18 months from the date of lapse by filing Form 15 and paying the requisite
fee.

Conclusion
 The patent application process in India involves several steps designed to
ensure that only deserving inventions receive patent protection. From conducting a
preliminary search to the grant and maintenance of the patent, each step requires
careful attention to legal requirements and timelines. Successfully navigating this
process grants the inventor exclusive rights to their invention, encouraging
innovation and providing a competitive edge in the market.

IPR