RESEARCH METHODOLOGY & INTELLECTUAL PROPERTY RIGHTS [22RIP]

MODULE – 4

Contents: Copyrights and Related Rights: Classes of Copyrights, Criteria for Copyright,
Ownership of Copyright, Copyrights of the Author, Copyright Infringements, Copyright
Infringement is a Criminal Offence, Copyright Infringement is a Cognizable Offence, Copyrights
and Internet, Non-Copyright Work, Copyright Registration, Judicial Powers of the Registrar of
Copyrights. Fee Structure, Copyright Symbol, Validity of Copyright, Copyright Profile of India,
Copyright and the word ‘Publish’, Transfer of Copyrights to a Publisher, Copyrights and the
Word ‘Adaptation’, Copyrights and the Word ‘Indian Work’, Joint Authorship, Copyright Society,
Copyright Board, Copyright Enforcement Advisory Council (CEAC). Trademarks: Eligibility
Criteria, Who Can Apply for a Trademark, Acts and Laws, Designation of Trademark Symbols,
Classification of Trademarks, Registration of a Trademark is Not Compulsory, Validity of
Trademark, Types of Trademarks Registered in India, Trademark Registry, Process for
Trademarks Registration.
Self-study: Case Studies on Patents. Case study of Curcuma (Turmeric) Patent, Case study of
Neem Patent, IP Organizations in India.

1. COPYRIGHTS AND RELATED RIGHTS

Definition and Scope:
➢ Copyrights provide legal rights to the original creator of content, primarily in literature
and computer software, allowing them control over how their work is used, reproduced,
and shared.
➢ Related Rights extend these protections to creators in fields like drama, sound recordings,
films, video recordings, paintings, architecture, etc.
➢ Both Copyrights and Related Rights fall under Intellectual Property (IP) law and are
governed by the Copyright Act of 1957 in India.

Rights Provided Under the Act:

➢ The Act grants the copyright holder specific rights, including:
o Reproduction: Right to make copies of the work.
o Communication to the Public: Right to broadcast or share the work with the
masses.
o Adaptation: Right to alter or modify the work for different formats or contexts.
o Translation: Right to convert the work into other languages.

Key Terms:
➢ Author: Refers to the creator of content in a specific field. Examples include:
o A writer (for literary works),
o A computer programmer (for software),
o A composer (for musical works),

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o A producer (for cinematic films or sound recordings),

o A photographer (for images).
➢ Work: Any content created by an author in fields such as:
o Literature (books, articles),
o Drama (plays),
o Music (compositions),
o Art (paintings, sculptures),
o Cinematography (films),
o Sound Recordings (audio clips).

1.1. Classes of Copyrights

In India, several classes of copyrights are recognized, each protecting different types of creative
work. Here’s an overview:
➢ Literature: Includes written and spoken works such as:
o Books, Essays, Research Articles, Oral Speeches, Lectures, Compilations.
o Computer Programs and Software are also protected under this class.
o Databases containing structured data also fall under literary copyright.
➢ Dramatics: Covers works intended for performance, like:
o Screenplays and Dramas.
➢ Sound Recordings: Encompasses recorded sounds, irrespective of the storage medium,
such as:
o Phonograms and CD-ROMs containing audio.
➢ Artistic: Protects visual and graphic creations, including:
o Drawings, Paintings, Logos, Maps, Charts, Photographs.
o Architectural Works (designs and structures).
o Engravings and Craftsmanship pieces, highlighting unique artistry.
➢ Musical: Relates to musical compositions, specifically:
o Musical Notations (without accompanying words or performance actions).
o Important note: A musical composition does not have to be documented in writing
to be protected.
➢ Cinematograph Films: Refers to visual recordings, often accompanied by sound:
o Includes Motion Pictures, TV Programmes, Visual Recordings, and Sound
Recordings that are part of visual content.
o Defined as a visual recording created through any process, incorporating both the
visual and sound aspects.

1.2. Criteria for Copyright

For a work to qualify for copyright protection, certain conditions must be met. Here are the
essential criteria:
➢ Existence in Tangible Form:

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o Work must be in a physical or tangible form, even if it's temporary. This can
include written text, recorded audio, or any visible or audible form.
o Example: Quickly jotted notes for a spontaneous speech are still considered
tangible enough for copyright protection.
➢ Originality:
o The work must be a result of the creator’s unique thought process and not a copy
of existing works.
o This originality is often referred to as Original Work of Authorship (OWA). While
it might resemble existing work, it should not be identical.
o The original work does not need to be exceptional in quality, length, or aesthetic
value it is a distinct creation.
➢ Creative Effort:
o Some level of creativity is necessary, but there is no strict standard for the
amount. The evaluation of creativity is subjective and may vary.
o Examples of non-qualifying work include:
▪ Changes in the dimensions of a book: This is not seen as a creative effort.
▪ Alphabetically organized address books: Simple organization without any
creative selection doesn’t qualify for copyright.
The Office of the Registrar of Copyrights assesses whether work meets these criteria. Minimal
creativity suffices if it is distinguishable as the author’s original expression.

1.3. Ownership of Copyright

Ownership of copyright is clearly defined by copyright laws, detailing who holds the copyright
under various circumstances:
➢ First Holder of Copyright:
o The individual who creates the work is recognized as the original owner of the
copyright.
➢ Work Created by Employees:
o When a creator is an employee producing work as part of their job (contracted by
an organization or company), the employer or proprietor typically holds the
copyright.
➢ Government-Owned Works:
o For government-related work, the government becomes the primary owner unless
there’s a specific arrangement stating otherwise.
➢ Speeches:
o The person who delivers a speech is automatically the first owner of that content.

To use copyrighted material, permission must be requested from the legal copyright owner. This
could be the original author, a legal heir (if the author is deceased), the publisher, or another
entity. When requesting permission, the following details should be included:

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➢ Title, Author, and Edition of the material.

➢ Specific Material to Be Used: Specify the portion or excerpt intended for use.
➢ Number of Copies: Indicate how many copies will be produced or distributed.
➢ Purpose: State the purpose, such as educational, research, or commercial.
➢ Distribution Method: Specify if it will be distributed as a hard copy, online, etc.
➢ Sale Information: Mention if the material will be sold, such as in a course pack.

1.4. Copyrights of the Author

Under Section 14 of the Copyright Act, 1957, the author holds exclusive rights over their created
work, meaning others cannot use or publish it without the author's consent. These rights ensure
the author has control over the publication, distribution, and usage of their work.

The author’s rights are divided into two main categories:

➢ Economic Rights (Proprietary Rights):
o These rights allow the author to gain financial benefits from their work. The
copyright owner has the authority to permit or prevent others from:
▪ Reproducing the work: Includes creating printed copies or sound recordings.
▪ Distributing copies of the work.
▪ Publicly performing the work.
▪ Broadcasting or communicating the work to the public.
▪ Translating the work into other languages.
▪ Adapting the work, like turning a novel into a screenplay.
➢ Moral Rights (Personal Rights):
o Moral rights protect the author's personal connection to the work, even if
economic rights are sold or licensed. There are two types:
▪ Right of Paternity: The author retains the right to be recognized as the
creator, even if the copyright is transferred to another party (e.g., a
publisher). The author's name must still appear on the work.
▪ Right of Integrity: The author has the right to prevent alterations, additions,
or deletions that could harm the work’s integrity or the author’s reputation.
Misrepresentation of the work is not permitted.
It’s also important to note that multiple individuals can hold rights to a single work. For example,
a musical sound recording may have several rights holders, including the lyricist, composer,
singer, musicians, and sound engineer.

1.5. Copyright Infringements

The Copyright Act, 1957 defines certain actions that, when conducted without permission,
constitute copyright infringement. These actions harm the copyright holder’s rights and can have
legal consequences. Acts considered as infringement include:

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➢ Making Unauthorized Copies for Sale or Hire: Producing copies of the copyrighted work
and selling or renting them without the copyright owner’s consent.
➢ Allowing Unauthorized Public Performance: Providing a space for public performance of
a copyrighted work without permission if it infringes on the copyright holder’s rights.
➢ Distributing Infringing Copies: Distributing unauthorized copies in a way that impacts
the copyright holder’s financial interests or market negatively.
➢ Public Exhibition for Trade: Displaying unauthorized copies of the work publicly,
especially for commercial purposes, without consent.
➢ Importing Infringing Copies: Bringing unauthorized copies into the country for any
purpose without the copyright owner’s permission.
➢ Unauthorized Translation: Translating the work into another language without the
copyright owner’s approval.

1.6. Copyright Infringement is a Criminal Offence

Under Section 63 of the Copyright Act, 1957, copyright infringement is classified as a criminal
offense if done knowingly. The law enforces strict penalties to deter unauthorized use of
copyrighted material:
➢ First Offense:
o Punishable by a minimum imprisonment of six months.
o A minimum fine of ₹50,000 is also imposed.
➢ Second and Subsequent Offenses:
o For repeat offenders, the punishment increases to a minimum imprisonment of
one year.
o The fine is raised to a minimum of ₹1,00,000.
To address copyright infringement cases, there is a specialized IP Division. Additionally, the
Copyright Board, established by the Central Government in 1958, oversees and adjudicates
copyright-related claims, helping ensure that legal rights are upheld.

1.7. Copyright Infringement is a Cognizable Offence

Copyright infringement is classified as a cognizable offense under the Copyright Act, meaning
law enforcement has the authority to take immediate action:
➢ A police officer of sub-inspector rank or higher can seize infringing materials without
needing a warrant.
➢ The confiscated materials are then presented in court as part of the legal proceedings.
This designation allows authorities to act swiftly against copyright violations, emphasizing the
seriousness of copyright protection.

1.8. Copyrights and Internet

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With the rise of digitization in the twenty-first century, copyrighted materials are increasingly
shared online, prompting updates to copyright laws to protect digital content. Here are key points
regarding copyrights on the internet:
➢ Transmission and Fair Use:
o Copyrighted data can be rapidly transmitted online, raising concerns about
unauthorized downloading and sharing.
o Users should observe copyright and fair use principles when accessing materials
from the internet. Downloading or using material without permission may
constitute infringement.
o Some material found online may have been uploaded without the original author’s
consent, so it’s important to verify the source.
➢ Personal vs. Commercial Use:
o Posting a work online by the copyright owner allows others to use it for personal
purposes only—not for commercial gain.
o For electronic distribution, it’s advised to include a copyright notice, such as:
o "This work is protected by copyright laws and is provided for educational
instruction only. Any infringing use may be subject to disciplinary action and/or
civil or criminal liability as provided by law."
➢ Literary Work Definition:
o According to Section 2(o) of the Copyright Act, 1957, the term Literary Work
includes computer programs, tables, compilations, and databases.
o For copyright registration of software or databases, it is mandatory to provide
both the Source Code and Object Code.

1.9. Non-Copyright Work

Certain types of work and materials do not fall under copyright protection. Here are examples of
non-copyrightable content:
➢ Ideas, Concepts, and Principles:
o Copyright only protects the expression of ideas, not the ideas themselves.
Concepts or principles cannot be copyrighted unless they are documented in a
unique form.
➢ Facts and Discoveries:
o Factual information, such as scientific findings or historical facts, is not protected
by copyright. Although a person may spend years researching for a book, the facts
can be freely used by others as long as they express them in their own words.
➢ Titles, Names, and Short Phrases:
o Simple elements like titles, names, slogans, and short word combinations are not
eligible for copyright protection.
➢ Certificates:

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o Certificates lack sufficient creativity for copyright protection and thus cannot be
copyrighted.
➢ Digital and Transformed Works:
o Digitally created works are copyright protected, and even when works are
converted to digital form (e.g., scanned documents), they remain under copyright.
➢ Website Components:
o A website as a whole cannot be registered for copyright; however, specific
components can be. For example:
▪ Literary Works: Software, databases, or compilations on the website.
▪ Artistic Works: Images, diagrams, maps, or charts.
▪ Musical Works: Any musical composition on the site, including graphical
notation.
▪ Each of these components must be registered separately.
➢ Apps (Applications):
o Mobile or computer applications can be copyrighted as they are unique programs
designed for specific tasks and user interactions.
➢ Internet Content:
o If someone uses your online content (such as pictures, songs, or videos) without
permission, it is copyright infringement. Similarly, using others’ content for your
own purposes without permission also constitutes infringement.

1.10. Copyright Registration

In India, copyright registration is not mandatory to claim copyright protection. Once a work is
created in a tangible form, it automatically receives copyright protection. Here’s a summary of
key points about copyright registration:
➢ Automatic Protection:
o Copyright is granted automatically upon creation. There is no requirement to file a
formal request with the Copyright Office to obtain copyright protection.
➢ Role of Registration:
o Registration does not provide additional rights but serves as prima facie evidence
(initial proof) in case of disputes.
o The certificate of registration can act as evidence in court for issues related to
ownership, authorship, financial matters, or the transfer of rights.
➢ Legal Advantage:
o Although not required, registering copyright is advisable for better legal
protection and to strengthen claims in cases of infringement or disputes.
➢ Governing Laws:
o Copyright matters, including registration, are governed by the Copyright Act,
1957 and Copyright Rules, 2013.

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The attached forms (as shown in the images) outline the specific information required for
copyright registration in India. These forms include:
➢ Form-XIV: Application form for copyright registration.
➢ Statement of Particulars: Details about the work, including author, title, publisher, and
other essential information.
➢ Statement of Further Particulars: Additional information, especially relevant for
translations and adaptations.

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1.11. Judicial Powers of the Registrar of Copyrights

The Registrar of Copyrights in India holds powers equivalent to a civil court in certain matters
related to copyright cases. Under the Code of Civil Procedure, these powers include:
➢ Summoning and Examining Individuals:
o The Registrar can summon and require individuals to appear, answer questions,
and be examined under oath.
➢ Discovery and Production of Documents:
o The Registrar may demand the discovery and submission of documents relevant
to a copyright case.
➢ Affidavit Evidence:
o Evidence can be provided through affidavits as part of the proceedings.
➢ Issuing Commissions for Examination:
o The Registrar can issue commissions for the examination of witnesses or
documents as required.
➢ Requisitioning Public Records:

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o The Registrar has the authority to request public records or their copies from any
court or office for the case.
➢ Other Prescribed Matters:
o Additional powers may be defined by law as necessary for handling copyright
cases.

To apply for copyright registration, applicants must complete Form XIV and submit it to the
Copyright Office at:
Address: Registrar of Copyright,
Plot No. 32, Boudhik Sampada Bhawan,
Sector 14, Dwarka, New Delhi - 110075.

➢ Application Submission:
o Applications can be submitted by post or online via the E-filing facility at
[Link].
o The application can be filed by the author of the work or their assignee.
➢ Processing Time:
o Typically, it takes about 2-3 months to complete the registration process.
o After filing, there is a mandatory 30-day waiting period for any objections. If
there are objections, a hearing is conducted, and the Registrar decides.
➢ Evaluation Process:
o After clearing any objections, examiners review the application. If further
clarification is needed, the applicant is given around 45 days to respond.

The flowchart below illustrates the process, starting from the application submission, waiting for
objections, addressing discrepancies, and final approval by the Registrar.

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1.12. Fee Structure

For each copyright registration, a separate application form and associated fee are required. If the
application is rejected, the fee is non-refundable. Here’s a summary of the fee structure:
Attribute Fee (₹)
Registration of Literary, Dramatic, Musical, or Artistic Work ₹500 per work
Registration of Cinematograph Film ₹5,000
Registration of Sound Recording ₹2,000
Literary or Artistic Work used in relation to goods or services ₹2,000
Changes in Literary, Dramatic, Musical, or Artistic Work ₹200
Changes in Literary or Artistic Work related to goods or services ₹1,000
Changes in particulars of Cinematograph Film in the Register of ₹2,000
Copyrights
Changes in particulars of Sound Recording in the Register of Copyrights ₹1,000
Prevention of Importation of Infringing Copies (per place of entry) ₹1,200
Source: [Link]

1.13. Copyright Symbol

Although using the copyright symbol (©) is not mandatory, including it with your name and the
year of creation on published or printed materials strengthens your legal position in case of
infringement disputes. Here’s what to know about copyright symbols and marks:
➢ Key Elements of a Copyright Mark:
o The Copyright Symbol (©), the word "Copyright," or the abbreviation "Copr."
o For sound recordings, the symbol is ℗ (the letter P in a circle) instead of ©.
➢ Year of First Publication:
o For compilations or derivative works that include previously published material,
mention the year of the first publication of the compilation or derivative work.

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o The year may be omitted for certain items like pictorial works, graphic designs,
sculptures, greeting cards, postcards, stationery, jewelry, dolls, and toys.
➢ Owner Identification:
o Include the name or a recognizable abbreviation of the copyright owner, or an
alternative designation by which the owner can be identified.

These elements clearly indicate copyright ownership and provide a visible notice to deter
unauthorized use.

1.14. Validity of Copyright

In India, the validity of copyright generally lasts for 60 years, with the duration varying based on
the type of work:
➢ Literary, Dramatic, Musical, and Artistic Works:
o Copyright protection extends 60 years from the year following the author’s death.
➢ Cinematograph Films, Sound Recordings, Photographs, Posthumous Publications,
Government Works, and Works by International Organizations:
o The 60-year period begins from the date of publication of the work.

1.15. Copyright Profile of India

A five-year analysis (2015–2020) of copyright data in India shows significant trends in copyright
applications, examinations, and registrations:
➢ Applications Received:
o There was a steady increase in copyright applications over the first four years,
peaking at 21,905 in the 2019–20 period.
➢ Applications Examined:
o The highest number of applications examined was 34,388 in 2017–18.
o Following this peak, the number of examinations decreased to 22,658 in 2018–19
and 19,460 in 2019–20.
➢ Copyright Registrations:
o The number of registrations also showed an upward trend, with a maximum of
19,997 registrations recorded in 2017–18.
This data highlights the growing interest and engagement in copyright protection in India over
the studied period, with a notable peak in activities around 2017–18.

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1.16. Copyright and the word ‘Publish’

In copyright terms, a work is considered published when it is made available to the public
without any restrictions. Here’s what that means:
➢ Definition of Published:
o A work is published when it enters the public domain in an unrestricted manner.
o Example: If an author writes an article titled "Life in Himalayas" and shares it
with selected individuals or organizations with a non-disclosure restriction, it is
not considered published.
o If the author removes the non-disclosure condition or posts the article online for
public access, it would then be regarded as published.
➢ Registration Eligibility:
o Both published and unpublished works are eligible for copyright registration,
allowing creators to protect their work regardless of its publication status.
This distinction ensures clarity in copyright registration and enforcement, especially in cases
where content is initially shared under restricted access.

1.17. Transfer of Copyrights to a Publisher

Authors often transfer their copyrights to publishers to reach a wider audience and gain financial
benefits. Here are key considerations and implications of transferring copyright to a publisher:
➢ Financial Benefits:
o The author can transfer copyrights in exchange for a one-time payment, royalties,
or a combination of both.
➢ Implications of Unconditional Transfer:
o If copyrights are transferred without conditions, the publisher gains full control
over the work, which may limit the author's rights. For example:

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o The publisher may restrict the author from displaying the work on institutional
websites.
o The publisher might disallow revisions or updates to the work.
o In some cases, the publisher may choose not to print enough copies or may not
upload the digital version online.
➢ Contractual Precautions:
o Authors are advised to retain certain rights when signing agreements. For
instance:
o Authors can limit the transfer to print rights while retaining digital rights.
o A time limit for printing and selling copies can be specified in the contract.
➢ Modern Publishing Dynamics:
o The internet era has reduced authors' dependence on traditional publishers,
allowing authors to publish and distribute their work independently online.
However, authors under existing contracts with publishers are bound by those
terms.
➢ Termination of Transfer:
o The Copyright Act includes a provision for termination of transfer that allows
authors to reclaim their copyrights after 35 years of the original agreement. This
statutory right applies even if it is not explicitly mentioned in the contract.
Authors should carefully review and understand the terms before signing copyright agreements
to avoid unintended restrictions and ensure control over their work.

1.18. Copyrights and the Word ‘Adaptation’

In copyright law, the term ‘Adaptation’ refers to creating a new work based on an existing one.
The Copyright Act defines several actions as adaptations:
➢ Transformation of a Dramatic Work into a Non-Dramatic Work: For example, converting
a play into a novel.
➢ Changing a Literary or Artistic Work into a Drama: This could involve adapting a novel
or painting into a stage performance.
➢ Re-arrangement of a Literary or Dramatic Work: Modifying or reorganizing the structure
of an existing work.
➢ Depiction Through Pictures of a Literary or Dramatic Work: Illustrating a novel or play
with images, such as creating a graphic novel based on a book.
➢ Making a Cinematograph Film of a Literary, Dramatic, or Musical Work: Adapting a
book, play, or song into a movie.

1.19. Copyrights and the Word ‘Indian Work’

In copyright law, the term ‘Indian Work’ refers to a specific classification of literary, dramatic, or
musical works. A work is considered an "Indian work" if it meets any of the following
conditions:

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➢ Authorship by an Indian Citizen: The author of the work must be a citizen of India.
➢ First Publication in India: The work must have been first published in India.
➢ Unpublished Work by an Indian Citizen: For unpublished works, the author must have
been an Indian citizen at the time of creation.

1.20. Joint Authorship

➢ A ‘Work of Joint Authorship’ refers to a work created through the collaboration of two or
more authors. In such works, the contributions of each author are inseparable and not
distinct from those of the other authors.
➢ This means that each author’s input is blended together, resulting in a single work where
individual contributions cannot be isolated.

1.21. Copyright Society

A Copyright Society is a registered organization that helps authors and copyright owners manage
their rights, track uses of their works, collect royalties, and handle infringement issues.
Established under Section 33 of the Copyright Act, 1957, these societies are collective
administration bodies formed by copyright holders to simplify the management of their
intellectual property.
➢ Functions of a Copyright Society:
o Track Rights and Infringements: Monitor the use of copyrighted works and
identify any infringement issues.
o Issue Licenses: Grant licenses for the use of works covered by the society.
o Collect Fees: Gather royalties and fees from licenses issued for copyrighted
works.
o Distribute Fees: Allocate collected fees to copyright owners, deducting
administrative expenses.
➢ Formation and Registration:
o A Copyright Society can be established by a group of seven or more copyright
holders.
o The registration of a Copyright Society is valid for five years.
➢ Examples of Registered Copyright Societies in India:
o SCRIPT: Society for Copyright Regulation of Indian Producers for Film and
Television, for cinematograph and television films. (Address: 135 Continental
Building, Dr. A.B. Road, Worli, Mumbai 400 018)
o IPRSL: The Indian Performing Right Society Limited, for musical works.
(Address: 208, Golden Chambers, 2nd Floor, New Andheri Link Road, Andheri
(W), Mumbai- 400 058)
o PPL: Phonographic Performance Limited, for sound recordings. (Address: Flame
Proof Equipment Building, B.39, Off New Link Road, Andheri (West), Mumbai
400 053)

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These societies help streamline copyright management, ensuring that creators receive fair
compensation and that their works are used legally.

1.22. Copyright Board

The Copyright Board is a government-appointed regulatory body established under the
Copyright Act of India to perform judicial functions related to copyright matters. The board
consists of a Chairman (equivalent to the level of a High Court judge) and 2 to 14 members. Its
primary role is to arbitrate and resolve copyright-related disputes.
➢ Powers and Functions of the Copyright Board:
o Appeals: Hear appeals against decisions made by the Registrar of Copyrights.
o Rectification of Entries: Handle applications for correcting entries in the Register
of Copyrights.
o Dispute Resolution: Settle disputes over copyright assignments.
o Grant Compulsory Licenses:
▪ Issue licenses to publish or republish works under specific circumstances.
▪ Issue licenses to produce and publish translations of literary or dramatic
works in any language after seven years from the first publication.
o Publication and Term Disputes: Resolve disputes regarding whether a work has
been published, the date of publication, or the term of copyright for works in other
countries.
o Royalty Rates: Set royalty rates for sound recordings under the cover-version
provision.
o Resale Share Rights: Determine resale share rights for original copies of
paintings, sculptures, drawings, and original manuscripts of literary, dramatic, or
musical works.

1.23. Copyright Enforcement Advisory Council (CEAC)

The Copyright Enforcement Advisory Council (CEAC) was established by the Government of
India in 1991 to oversee and improve the enforcement of the Copyright Act.
➢ Key Roles and Functions of the CEAC:
o Review Enforcement Progress: Regularly assess how effectively the Copyright
Act is being enforced.
o Advisory Role: Provide recommendations to the government on measures to
enhance enforcement and address issues related to copyright violations.
➢ Term and Reconstitution:
o The CEAC has a term of three years.
o After each term, the CEAC is reconstituted to ensure continuity and adaptation to
new challenges in copyright enforcement.

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2. Trademarks
A Trademark is a unique symbol or identifier that distinguishes the products or services of one
organization from those of others. It serves as a brand’s identity in the marketplace, helping
consumers recognize and differentiate products or services.
➢ Definition of ‘Mark’:
o The term "Mark" encompasses any sign, design, phrase, slogan, symbol, name,
numeral, device, or a combination of these elements.
➢ Purpose of a Trademark:
o The primary function of a trademark is to create a distinct identity for a brand,
making it easily recognizable to consumers and setting it apart from competitors.

2.1. Eligibility Criteria

To be legally recognized as a Trademark, goods or services must meet certain conditions to
ensure they are distinct and protectable.
➢ Distinctiveness: The goods or services for which trademark protection is sought must be
unique enough to identify the brand in the target market. This distinctiveness enables
consumers to recognize the source of the goods or services, helping them distinguish it
from competitors.
➢ Descriptiveness: The trademark should not merely describe the characteristics of the
goods or services. Descriptive marks are generally not eligible for trademark protection.
However, descriptive words may be registered if they acquire a secondary meaning, as in
the case of the brand name "Apple" used by a U.S.-based technology company, which has
come to represent a specific brand despite its generic meaning.
➢ Similarity to Prior Marks: The trademark must be unique and not resemble any existing
marks. This uniqueness prevents confusion among consumers and maintains a clear
distinction between brands.

2.2. Who Can Apply for a Trademark

Any individual or entity who owns a Trademark is eligible to apply for its registration. This can
include a single proprietor or multiple applicants filing jointly, in which case additional
supporting documents are required. Organizations or associations can also apply for what is
known as a collective mark. A collective mark is used by the members of an organization to
signify their affiliation with a particular brand or standard. For example, the "Reliance" symbol
represents all products and services associated with the Reliance organization, providing a
recognizable mark for consumers across its various offerings.

2.3. Acts and Laws

In India, trademarks are regulated under The Trademarks Act, 1999 and are subject to The
Trademarks Rules, 2002. These laws provide a framework for the registration, protection, and

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enforcement of trademarks in India. Both the Act and Rules have undergone amendments to stay
current with evolving trademark needs, with the latest updates occurring in 2010 and 2017.

The Office of the Controller General of Patents, Designs and Trademarks (CGPDTM) under the
Government of India (GoI) administers trademark matters, ensuring that the rights and
regulations outlined in the Act and Rules are upheld effectively.

For more information, you can refer to:

➢ The Trademarks Act, 1999:
[Link]
➢ The Trademarks Rules, 2002: [Link]
data/Portal/IPORule/1_56_1_1_59_1_tmr_rules_2002_1_.pdf).

2.4. Designation of Trademark Symbols

In trademark usage, specific symbols indicate the registration status of a trademark or service
mark:
➢ TM: Used to indicate an unregistered trademark for goods. This symbol signifies that the
company claims trademark rights, even if the trademark has not yet been officially
registered. It is often used in brand promotion for goods.
➢ SM: Represents an unregistered service mark. Like TM, it indicates a claim of rights over
a brand but is specifically used for services rather than physical goods.
➢ R: The registered trademark symbol (®) signifies that the trademark or service mark is
officially registered with the appropriate trademark authority, granting it legal protection.

2.5. Classification of Trademarks

Trademarks for goods and services are classified based on the Nice Agreement (1957), overseen
by the World Intellectual Property Organization (WIPO). This classification system is widely
used globally, with 149 countries and several regional organizations (like the African Intellectual
Property Organization, African Regional IP Organization, and the Trademark Office of the
European Union) adopting it.

The system divides trademarks into 45 classes:

➢ 34 classes for goods.
➢ 11 classes for services.

Two examples of trademark classes are:

➢ Class 1: Covers chemicals used in industry, science, and agriculture, including
unprocessed resins, plastics, and adhesives, as well as fire prevention and tanning
materials, fertilizers, and biological preparations for industrial and scientific purposes.

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➢ Class 45: Encompasses legal services, security services for protecting property and
individuals, and personal/social services aimed at individual needs.

Additionally, figurative elements (like logos and designs) are classified under the Vienna
Classification, established by the Vienna Agreement (1973). This system categorizes figurative
marks into categories, divisions, and sections based on the elements depicted.

For example, a logo of a "little girl eating" is categorized as follows:

➢ Category 2: Human beings

➢ Division 5: Children
➢ Main Section 3: Girls
➢ Auxiliary Section 18: Children eating or drinking

The full code for this figurative element is noted as 2.5.3, 18.

These classifications help streamline the registration process, making it easier to identify and
categorize trademarks across various industries. For more information on the Vienna
Classification, visit: [Link] nivilo/vienna/[Link]?lang=EN#.

2.6. Registration of a Trademark is Not Compulsory

While trademark registration is not mandatory, it offers significant advantages for the proprietor,
helping secure and strengthen the brand’s position in the market. Here are key benefits of
registering a trademark:
➢ Legal Protection: A registered trademark provides the legal right to prevent unauthorized
use by others, offering protection against exploitation. In legal disputes, registration acts
as strong evidence of ownership and establishes the legal rights of the trademark owner.
➢ Exclusive Right: Registration grants the trademark owner exclusive rights to use the mark
in any lawful way to promote their business, safeguarding the brand’s identity and
uniqueness.
➢ Brand Recognition: A registered trademark helps build brand recognition and value.
Consumers can identify products and services by their logo, fostering brand loyalty.
Registering a trademark early strengthens brand goodwill, which can attract new
customers and retain existing ones.
➢ Asset Creation: A registered trademark is considered an intangible asset, contributing to
the organization’s value. It supports business growth by enhancing brand identification,
drawing new clients, and retaining current customers.
For further details on registered trademarks in India, you can visit IP India -
[Link] Images/pdf/well-known-trademarks-updated-
[Link].

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While unregistered trademarks (or "common law trademarks") have limited legal recourse
against infringement, actions such as “passing off” can be taken if another party uses the mark to
misrepresent their goods or services as those of the original. In such cases, unregistered
trademark owners must demonstrate that their mark has established goodwill or reputation
connected with their offerings.

2.7. Validity of Trademark

➢ In India, a registered trademark is valid for a period of 10 years from the date of
registration. The trademark owner has the option to renew the trademark every 10 years,
ensuring perpetual protection as long as renewals are filed on time.
➢ According to the Indian Trademarks Act, the renewal request must be submitted using
Form TM-R, ideally within one year before the expiry of the current registration period.
This ongoing renewal process helps maintain legal rights to the trademark indefinitely,
allowing the brand to retain exclusive use of the mark.

2.8. Types of Trademark Registered in India

In India, trademarks can take various forms, often chosen to create a strong and memorable
brand identity. A good trademark should be easily spoken, spelled, and remembered. It is
generally advised to select invented words, unique geographical names, or creative combinations
rather than common geographical names, personal names, or words that simply praise the quality
of goods (such as "best" or "super"). Conducting a market survey is recommended to ensure no
similar marks are already in use.

Here are some types of trademarks eligible for registration in India:

➢ Names: Any name, including the personal or surname of the applicant or their business
predecessor. For instance, ‘BAJAJ’ is derived from the name of the industrialist Mr.
Jamnalal Bajaj.
➢ Words Unrelated to Product/Service: Words that have no direct relation to the product or
service they represent. For example, ‘INDIA GATE’ is used as a trademark for food
grains and allied products, though it does not directly describe them.
➢ Letters or Numerals: Trademarks can also include letters, numerals, or combinations. For
instance, ‘YAHOO’, originally an acronym for "Yet Another Hierarchical Officious
Oracle," has become a globally recognized brand.

Below are examples of various types of trademarks used by well-known companies:

Sl. No. Type of the Mark Mark Company/Firm
1 Distinctive General Word Apple IT Company
2 Fanciful Designation Kodak Photography
3 Distinctive Personal Names Ford Automotive

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4 Device Udhaar Financial Technology

5 Number 4711 Perfume
6 Picture Alligator Knitwear Manufacturing
7 Slogan Drink it to believe it Soft Drinks

2.9. Trademark Registry

In India, trademark operations are managed through five regional offices located in Delhi,
Mumbai, Ahmedabad, Kolkata, and Chennai. Each office serves a specific territorial jurisdiction,
meaning businesses must register their trademarks at the office assigned to their state or union
territory. Foreign applicants are assigned a jurisdiction based on their agent’s or attorney’s office
location.

Here is the breakdown of territorial jurisdiction for each Trademark Registration Office:
Sl. No. Office Location States/Union Territories Covered
1 Mumbai Maharashtra, Madhya Pradesh, Chhattisgarh, and Goa.
Ahmedabad Gujarat, Rajasthan, and the Union Territories of Daman, Diu, and Dadra
2
& Nagar Haveli.
Kolkata Arunachal Pradesh, Assam, Bihar, Odisha, West Bengal, Manipur,
3 Mizoram, Meghalaya, Sikkim, Tripura, Jharkhand, Nagaland, and
Andaman & Nicobar Islands.
New Delhi Jammu & Kashmir, Punjab, Haryana, Uttar Pradesh, Himachal Pradesh,
4
Uttarakhand, Delhi, and Chandigarh.
Chennai Andhra Pradesh, Telangana, Kerala, Tamil Nadu, Karnataka, and the
5
Union Territories of Puducherry and Lakshadweep.

2.10. Process for Trademarks Registration

To register a Trademark in India, the applicant (or their agent) must complete a series of steps,
beginning with a prior art search and culminating in the issuance of a trademark registration
certificate. Here’s a breakdown of the process:
➢ Prior Art Search
o Before filing, it’s advisable to conduct a search to ensure the intended trademark
is not already registered or similar to an existing mark. This can be done through
various online databases:
▪ Public Search by CGPDTM
▪ WIPO’s Global Brand Database
▪ TESS (Trademark Electronic Search System)
▪ MARKARIA Trademark Search Engine
▪ VAKIL Search
➢ Filing the Application
o Once satisfied with the distinctiveness of the trademark, the applicant can file
Form TM-A for registration, either on their own or through a certified agent.
o The application is assigned an application number that can be tracked online.

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➢ Examination of Application
o The application is reviewed by an examiner. If there are no issues, the application
details are published in the Trademark Journal.
o If there are objections, the examiner sends a report to the applicant for
rectification. If the response is satisfactory, the application proceeds to
publication. If rejected, the applicant may appeal to the Intellectual Property
Division.
➢ Publication in the Trademark Journal
o Once published, the public has 90 days to file any opposition to the trademark. If
no opposition is filed, or if the opposition is resolved in favor of the applicant, the
trademark proceeds to registration.
➢ Issuance of Trademark Registration Certificate
o After all formalities are completed successfully, a Trademark Registration
Certificate is issued to the applicant.
Important Notes:
➢ If the trademark includes non-English words, an English translation must be provided.
➢ To claim priority from an earlier application, details such as application number, filing
date, country, and relevant goods/services must be specified.

Figure: Flow chart for the process of Trademark registration

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Table of Fees and Forms Related to Trademarks

Amount (₹)
Entry No. Contents Form No.
Physical Filing E- Filing
Individual / Start-
5,000 4,500 TM-A
1 up/Small Enterprise
In all other cases 10,000 9,000 TM-A
Opposition/Application
2 3,000 2,700 TM-O
for Rectification, etc.
Renewal of Trademark
3 10,000 9,000 TM-R
Registration
Register a subsequent
4 proprietor for each 10,000 9,000 TM-P
Trademark
Registration of Registered
5 5,000 4,500 TM-U
User, etc.
Search and issue of
6 10,000 9,000 TM-C
certificate
Miscellaneous requests
7 1,000 9,000 TM-M
(Opposition/Rectification)
Registration of Trademark
8 5,000 4,500 TM-G
agent

References:
1. Tewari, R., & Bhardwaj, M. (2021). Intellectual Property.
2. Jawale, K. V. (2023). Indian Intellectual Property Rights. Academic Guru Publishing
House.
3. [Link]

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