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    INTRODUCTION

    Uploaded by

    Vakisha K 144

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    of 11

    INTELLECTUAL PROPERTY RIGHTS

    VAKISHA K
    INTRODUCTION

     IPR: Intellectual Property Rights.

     TRADEMARK: Any word, phrase, symbol, design or combination of

    these that identifies your goods and services – how the customer

    identifies / recognizes – uniqueness. This legal document should be

    renewed every 10 years.

     COPY RIGHT: Legal term to describe the rights that creators have

    over their literary and artistic works. This document is legally valid

    for 60 years from application.

     PATENT: Exclusive right granted for an invention, discovery etc. This

    document should be renewed annually.

     GEOGRAPHICAL INDICATION: Identity of a good based on the place /

    identification of a good as originally from a particular place.

     DESIGN: Design registration protects any new and innovative

    ornaments, design etc., of an article of manufacturer.


    PROCESS FOR TRADEMARK SEARCH

    STEP 1: Generate search report.

    STEP 2: Search will be conducted in IP India Public Search.

    STEP 3: Once satisfied with the brand – submission of application will

    be done.

    STEP 4: Examination report will be issued. Here the application will

    be directly selected or otherwise objections will be raised.

    STEP 5: If the application is not satisfactory then objections are

    raised in accordance with Section 9 and Section 11 of Indian

    Trademark act, 1999.

    STEP 6: For the objection, reply should be given by the company and

    that too within one month.

    STEP 7: If the reply given is satisfactory then the application will be

    accepted or otherwise hearing will be conducted.

    STEP 8: After the hearing if the reasons are satisfactory then the

    application will get accepted or it will be rejected.


    STEP 9: Only if the application gets accepted, then the mark will be

    published in the Trademark Journal Publication and a period of 4

    months is given for issuing opposition by the other companies.

    STEP 10: If no opposition is filled against the mark of the company,

    then the new trademark is completely registered or otherwise the

    company must prove the fact and after once the court accepts that

    their mark is genuine, then it is considered as a registered

    trademark.

    STEPS INVOLVED IN THE PROCESSS OF OPPOSITON

    STEP 1: Notice of opposition will be issued by the (petitioner) other

    companies.

    STEP 2: Counter for opposition will be issued by the defendant

    company (i.e., the company that have applied for the trademark

    registration).

    STEP 3: Affidavit on support of opposition under Rule 45 / relying on

    letter under Rule 45 will be submitted (within 2 months).


    STEP 4: Affidavit on support of application under rule 46 / relying on

    letter under Rule 46 will be submitted (within 2 months).

    STEP 5: If the company did not respond properly their application will

    be abandoned and refused.

    STEP 6: Show cause hearing will be conducted and if the argument is

    satisfactory the application will be accepted or otherwise it will be

    refused.

    SECTION 9 OF INDIAN TRADEMARK ACT ,1999

    This section deals with the absolute grounds for refusal of

    registration

    1. The trademarks: -

    a) are not distinguished from other goods and services and the

    mark should be unpossessed (have similar characteristics of

    other products)

    b) consist of marks, indications which may serve in trade to

    designate the kind of quality, quantity, intended purpose


    and other characteristics if the product. (Restricts the

    product to be descriptive)

    c) Consist of marks, indications which have become customary

    in current language (nobody can claim exclusive right over

    the use of any word, acronym (or) abbreviation. The name

    should not be generic).

    Provided, if before the date of application, the trademark shall not

    be refused registration if it has acquired a distinctive character.

    2. A mark shall not be registered as a trademark if: -

    a) If the trademark tends to deceive (or) cause any confusion

    (the mark should not confuse the people or cause any

    mistaken impression)

    b) If it hurts any religious sentiments

    c) If the mark displays any form of obscenity (or) contrary to

    the morality (the mark should not be offending against a

    moral principle)
    d) Prohibited under the Emblem and Names Act, 1950 (the

    provisions under this act should not be violated)

    3. Mark shall not be registered if: -

    a) The shape of the good result from the nature of the good

    itself

    b) The shape of the good must be necessary to obtain technical

    result.

    c) The shape that gives substantial value (having more than

    nominal value)

    SECTION 11 OF INDIAN TRADEMARK ACT ,1999

    This section deals with the relative grounds for refusal of registration

    of trademark

    1. A trademark shall not be registered if, because of: -

    a) Its identity with earlier trademark and similarity with goods

    and services
    b) its similarity to earlier trademark and identity with goods

    and services (there exist a likelihood of confusion on part of

    the public)

    2. A trademark which: -

    a) Is identical or similar like an earlier trademark

    b) Is to be registered for goods or services which are not like

    those for which the earlier trademark s registered in the

    name of the different proprietor shall not be registered

    3. A trademark shall not be registered if, or to the extent that, its

    use in India is liable to be prevented

    a) By virtue of any law

    b) By virtue of law of copyright

    4. Nothing in this section can prevent the registration of a

    trademark

    a) A registered trademark has a date of application earlier than

    that of the trademark in question (having a question where

    appropriate, of the proprieties claimed in respect of the

    trademarks)
    b) A trademark which on the date of application for registration

    of the trademark in question (or) where appropriate of the

    priority claimed in respect of the application was entitled to

    protection as a well-known trademark

    5. A trademark shall not be refused registration (mentioned in (2)

    and (3)) unless objection on anyone (or) more is raised in

    opposition proceeding by the proprietor of the earlier

    trademark

    6. The registrar shall while determining whether a trademark is

    well-known trademark, consider: -

    a) recognition of the trademark in public

    b) duration, extend and geographical area of any use of that

    trademark

    c) duration, extend and geographical area of any promotion of

    the trademark

    d) duration and geographical area of any registration of or any

    application for registration of that trademark

    e) the record of successful enforcement of the rights


    7. Registrar shall (sub section (6))

    a) No. of actual or potential consumers

    b) No. of person involved in the channel of distribution

    c) The business circles dealing with the goods and services

    8. If a trademark has been determined to be well-known in at

    least one relevant section, it shall be considered that trademark

    as well-known.

    9. Registrar shall not require as a condition for determining

    whether a trademark is well-known of: -

    a) The trademark has been used in India

    b) The trademark has been registered

    c) The application for registration of trademark has been filled

    in India

    d) That the trademark: -

    i) Is well known in India

    ii) Has been registered

    iii) In respect of which an application for registration has

    been filled
    e) That the trademark is well-known to the public at large in

    India.

    10. While considering an application for registration of a

    trademark and opposition filled in respect thereof the registrar

    shall

    a) Protect a well-known trademark

    b) Take into consideration the bad faith involved.

    11. Where a trademark has been registered in good faith (or)

    where right to a trademark has been acquired, then nothing in

    this Act shall prejudice the validity of the registration of that

    trademark.

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