Ipr Notes

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IPR notes
Intellectual Property Rights (Guru Gobind Singh Indraprastha University)
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Intellectual Property Rights

UNIT-I: The Copyrights (Indian Copyright Act, 1957)
a. Introduction to Copyright Law
b. Brief Introduction to related International Treaties and Conventions
c. Subject Matter of Copyright, Economic and Moral Rights (ss2,13,14,15,16, 57)
d. Authorship and Ownership (s17), Term of Copyright and Assignment-Licensing (ss18-31)
e. Infringement and Remedies (ss50-61)
f. Exceptions: Fair Dealing
g. International Copyright Order (ss40-41)
h. Issues in Digital Copyrights
UNIT-II: Trademarks (The Trademarks Act, 1999)

a. Introduction to Trademark Law
c. Definitions (s2),
Registration of Trademarks
Procedure
Grounds of Refusal and
Well Known Trademarks
d. Passing Off
Infringement and
Exceptions to Infringement Actions
Remedies
e. Assignment and Licensing (ss48-53)
f. Intellectual Property Appellate Board (ss83-100)
g. Conflicts of Trademarks with Domain Name
h. Unconventional Trademarks
UNIT-III: Patent (The Patents Act, 1970)

a. Introduction to Patent Law
c. Definitions (s2), Criteria for Patents, Patentable Inventions
d. Non-Patentable Inventions (s3)
e. Procedure for Filing Patent Application (ss6-53)
f. Revocation of Patent (s64), Licensing, Compulsory Licensing (ss82-92A)
g. Parallel Import (s107A)
h. Rights of Patentee, Patent Infringement and Defences (ss47-48,s104 and s107)

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UNIT-IV: Industrial Design (The Designs Act, 2000)

a. Introduction to Designs Law
c. Definitions (s2), Registration of Designs and Procedure (ss3-9, s16,s21)
d. Cancellation of Registration of Design (s19)
e. Piracy of Registered Design (s22) and Remedies
f. Overlapping Between Designs Copyrights and Trademark

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UNIT-I: The Copyrights (Indian Copyright Act, 1957)
a. Introduction to Copyright Law

Copyright is a bundle of exclusive rights given by the law to the creators of original works. It is a form
of intellectual property protection granted by law. The rights provided under Copyright law include the
rights of reproduction of the work, communication of the work to the public, adaptation of the work
and translation of the work. Copyright laws serve to create property rights for certain kinds of
intellectual property, generally called works of authorship. Copyright laws protect the legal rights of
the creator of an Ôoriginal workÕ by preventing others from reproducing the work in any other way. The
main goals of copyright are: -
To encourage the development of culture, science and innovation

To provide a financial benefit to copyright holders for their works
To facilitate access to knowledge and entertainment for the public.
Copyright provides a framework for relationships between the different players in the content
industries, as well as for relationships between rights holders and the consumers of content.
Copyright is a form of Intellectual Property, along with trademarks and patents in all countries, and
other creations (such as trade secrets, database rights, rights of publicity and the like) that may vary
from country to country.

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c. Subject Matter of Copyright, Economic and Moral Rights (ss 2, 13, 14,
15, 16, 57)
Modern copyright laws serve to protect a variety of intellectual property ranging from songs and
jingles to computer software and proprietary databases. All subject matters protected by copyright
are called ÔworksÕ. Thus according to Section 13 of The Copyright Act 1957, it may be subjected to the
following works:
Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c)
provides secondary works.
Primary Works
1. Original Literary Work,
2. Original Dramatic work,
3. Original Musical work,
4. Original Artistic Work,
Secondary Works
1. Cinematography films, and
2. Sound recordings.
Original Literary Works:
Section 2(o) of the Copyright Act, 1957 provides an inclusive definition of word literary works
according to which the literary work includes computer programming, tablets, and compilations
including computer database. These cover published works including books, articles, journals, and
periodicals, as well as manuscripts. Even adaptations, translations, and abridgements are taken as
original works and are protected under copyright law. Section 13(a) classify literary works in the
primary work.
Case: Zee Telefilms v. Sundial Communications
Facts: A had prepared concept notes for the purpose of television film which consists of characters,
plots, notes and sketches etc.
Issues: Whether A is entitled to the copyright of those concept notes?
Held: Yes, since A invests labour and skill in preparing the concept paper. Such a person is entitled
to copyright.
Original Dramatic Works:

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According to section 2(h) of the Copyright Act, 1957, the dramatic work includes any piece for
recitation, choreographic work or entertainment in dumb shows, the scenic arrangement or acting
form which is fixed in writing or otherwise but does not include a cinematographic film. Since the
definition is an inclusive one, the other things fall within the general meaning of dramatic work, and
may also be covered by the definition.
Original Musical Works:
According to section 2(p) of the Copyright Act, 1957, musical work means any work consisting of
music and includes any graphical notion of such work, but does not include any words or any action
intended to be sung, spoken or performed with the music. The words in a song and the music have
separate rights and the rights cannot be merged. In order to qualify for copyright protection, a musical
work must be original.
Example:- Famous song ÒYaaramÓ which is written by Gulzar and composed by Vishal Bharadwaj. The
copyright of the lyrics will belong to Gulzar and the musical composition will be of the composer
Vishal Bharadwaj.
Original Artistic Works:
According to the section 2(c) of the Copyright Act, 1957, the artistic work includes any painting,
sculpture, drawing, engraving photograph of any work possessing artistic qualities. However, it also
includes the architecture and artistic craftsmanship of such works.
Case: Associated publishers vs Bashyam
Facts: A portrait of Mahatma Gandhi was made based on two photographs.
Held: A portrait based on photographs will be entitled to copyright if it produced a result from the
photograph and the portrait itself is original.
Example: A photographer took a photograph of a painting of MF Hussain, then paints the same
himself and sells such copies painted by him.
Held: A copyright in a painting is infringed when a person copies from the original painting or a
picture of painting.
Cinematographic Films
Section 2(f) of the Copyright Act, 1957 defines cinematographic films which include any work of
visual recording and a sound recording accompanying such visual recording and the expression
cinematograph shall be construed as including any work produced by any process analogous to
cinematographic including video films. It is classified into secondary works as suggested in clause (b)
of section 13 of the act.
Case: R.G. Anand vs Delux Films

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Facts: Plaintiff was a producer and play writer of play ÔHum HindustaniÕ. The plaintiff tried to
consider the possibility of filming and narrated the play to the defendant. The defendant, without
informing the plaintiff, made the picture ÔNew DelhiÕ which was alleged to be based on the said play.
Issue: Whether the film ÔNew DelhiÕ was an infringement of the plaintiffÕs copyright in play ÔHum
HindustaniÕ?
Held: No, because the stories were different, only the theme Òlove storyÓ was same.
Sound Recordings:
According to section 2(xx) of The Copyright Act, 1957, sound recording suggests that a recording of
sounds from which that sound may be produced regardless of the medium on which such recording is
made or the method by which the sounds are produced. Clause (c) of section 13 of the act state
sound recordings as a by-product works.
Case: Gramophone Co. India v. Super Cassette Industries
Facts: ÔG.coÕ, Plaintiff, produced audio records titled ÔHum Aapke Hain KaunÕ by Rajashree
production ltd, who were the owners of cinematographic work. They had already sold 55 lakhs
audio cassettes and 40,000 compact discs titled ÔHum Aapke Hain KaunÕ. The defendants too
launched an audio cassette by adopting the same title with its design, color scheme, get up and
layout deceptively similar. Permanent Injunction was sought.
Held: Injunction varied by stipulating not to use the same title, design color scheme etc. with bold
letters the record is a version of different artists.
RIGHTS OF THE COPYRIGHT HOLDER
In the Copyright Act, 1957, the owner possesses the rights which are to prevent others from using his
works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are
two types of rights given to the owner:
Economical rights;
Moral rights.
Economic rights
This right is also known as the Exclusive Rights of the copyright holder provided under Section 14 of
the Act. In this Act different types of work come with different types of rights. Such as:
1. In the case of original literary, musical, and dramatic work:

Right to reproduce;
Right to issue copies;
Right to perform at public;
Right to make cinematography and sound recording;
Right to make any translation;

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Right to adaptation; and

Right to do any other activities related to the translation or adaptation.
2. In the case, of computer program work:
Right to do any act aforesaid mentioned; and
Right to sell, rent, offer for sale of the copyrighted work.
3. In the case of artistic work:
Right to reproduce;
Right to communicate;
Right to issue copies;
Right to make any cinematography and sound recording;
Right to make an adaptation; and
Right to do any other activities related to the translation or adaptation.
4. In case of a cinematograph film work:
Right to sell, rent, offer for sale of the copyrighted work; and
Right to communicate.
5. In the case of a sound recording work:
Right to communicate;
Right to issue copies; and
Right to sell, rent, offer for sale of the copyrighted work.
Moral rights
In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects ethical
rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the
creator, just as much as the economic rights reflect the authorÕs need to keep the body and the soul
of his work out from commercial exploitation and infringement. These rights are supported by Article
6 of the Berne Convention of 1886, formally referred to as a world convention for the protection of
literary and inventive works, whose core provision relies on the principle of national treatment, i.e.
treats the opposite good as oneÕs own.
Section 57 of The Copyright Act, of 1957 recognizes two types of moral rights which are:
Right to paternityÐ which incorporates the right to assert the authorship of the work, and the right
to forestall others from claiming authorship of his work; and
Right to integrity- which incorporates the right to restrain, or claim damages in respect of any
distortion, modification, mutilation, or any other act relating to the said work if such distortion,
multiplication, or alternative act would be prejudiced to claimant honor or name.

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d. Authorship and Ownership (s17), Term of Copyright and

Assignment-Licensing (ss18-31)
Authorship and Ownership in Copyright
Section 17 of this Act recognizes the author as the first owner, which states that subject to the
provision of this Act, the author of a work shall be the first owner of the copyright therein:
In the case of literary or dramatic composition, the author,

In the case of musical work, the musician,
In the case of creative work apart from photography, the artist,
In the case of photographic work, the artist,
In the case of cinematographic or recording work, the producer,
In case of any work generated by any computer virus, the one who created it.
However, this provision provided to bound exception:
In case of creation is made by the author underemployment of the proprietor of any newspaper,
magazine or any periodic, the said proprietor,
In the case where a photograph is taken, painting or portrait is drawn, a cinematograph is made
for the valuable consideration of any person, such person,
In case of work done in the course of the authorÕs employment under the contract of service, such
employer,
In case of address or speech delivered on behalf of another person in public, such person,
In the case of government works, the government,
In the case of work done under the direction and control of public undertaking such public
undertaking, such and
In the case of work done in which the provision of Section 41 apply, concerned international
organizations.
Assignment of Copyright (Section 18)
The owner of the copyright of a work has the right to assign his copyright to any other person. The
effect of assignment is that the assignee becomes entitled to all the rights related to the copyright to
the assigned work2. However, mere grant of right to publish and sell the copyrighted work amounts to
publishing right and not assignment of copyright.
Where the assignee of a copyright becomes entitled to any right comprised in the copyright, he shall
be treated as the owner of the copyright in respect of those rights. The assignor shall also be treated
as the owner of copyright with respect to unassigned rights. The legal representatives of the assignee
shall be entitled to the benefits of assignment, if the assignee dies before the work comes into
existence.

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In Video Master v. Nishi Production3, the Bombay High Court considered the issue whether
assignment of video rights would include the right of satellite broadcast as well. The Court agreed
with the contentions of defendant that there were different modes of communication to the public
such as terrestrial television broadcasting (Doordarshan), satellite broadcasting and video TV. The
owner of the film had separate copyright in all those modes, and he could assign it to different
persons. Thus, satellite broadcast copyright of film was a separate right of the owner of the film and
the video copyright assigned to the plaintiff would not include this.
Mode of the assignment agreement
As per Section 19, these conditions are necessary for a valid assignment:
It should be in writing and signed;

It should specify the kinds of rights assigned and the duration or territorial extent; and
It should specify the amount of royalty payable if required in any case.
It is also provided that, if the period is not mentioned in the agreement it will be considered as five
years and if the territorial extent is not stipulated in the agreement, it will be considered as applicable
to the whole of India.
In Saregama India Ltd v. Suresh Jindal, it was held that the owner of the copyright in a future work
may assign the copyright to any person either wholly or partially for the whole of the copyright or any
part thereof and once the assignment is made the assignee for the purpose of this Act is treated as
the owner of the copyright.
Section 20
Copyright in manuscripts is transferred through testamentary disposal
Section 20 states that if a person is entitled to copyright under bequest and such work has not been
published before the testatorÕs death, unless a contrary intention is shown in the testatorÕs will or any
codicil thereto, such person is considered to have copyright in the work to the extent that the testator
was the owner of copyright immediately before his death.
Section 21
Right of author to relinquish copyright
Section 21 of the Act gives the owner of a work the option to give up all or any of the rights in the
work. As the term implies, relinquishment refers to the authorÕs surrender or abandonment of the
rights in the copyrighted work. This usually signifies that the authorÕs rights have been surrendered or
abandoned, and he or she can no longer claim ownership of the work. The author can choose which
rights they want to relinquish.
Section 22

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Term copyright in published literary, dramatic, musical, and artistic works
There are certain restrictions that must be met in order to obtain protection under the Copyright Act
of 1957. These restrictions can be broadly grouped into three categories: a limited period of copyright
permissible uses, non-voluntary licensing (statutory license), and statutory licenses. The duration or
term of the copyright is discussed further below.
Chapter V of the Indian Copyright Act of 1957 specifies the duration of copyright protection. Section
22 of the Act provides that the term of copyright in published literary, dramatic, musical, and artistic
works must survive, if published during the authorÕs lifetime, until sixty years after the authorÕs death,
commencing with the first day of the calendar year following his or her death. In this section, the
reference to the author shall be construed as a reference to the author who dies last in the case of a
work of joint authorship. The Amendment of 1992 expanded this duration from fifty to sixty years.
In the case of a cinematograph film, sound recording, photograph, posthumous publications, or

anonymous organizations, the sixty-year period begins on the date of publication.
Section 23
Copyright terms in anonymous and pseudonymous works
If the work is published anonymously, that is, when the author of the work is unknown. According to
Section 23 of the Copyright Act of 1957, the copyright term of an anonymous publication is also sixty
years, computed from the beginning of the calendar following the year the work was originally
published. The part also allows for the authorÕs identity to be revealed. In its proviso, it is stated that if
the identity of the author is revealed before the expiration of the abovementioned term, the copyright
exists for a period of sixty years, calculated from the start of the calendar year following the year in
which the work is first published.
Section 24
Term of Copyright in Posthumous Work
It is the publication of a work after the authorÕs death. The term of copyright protection for a
posthumous publication is sixty years, and unlike in other jurisdictions, this time is computed from the
date of publication.
Section 25
Term of copyright for photographs
The Indian Copyright Act grants copyright in photographs for a term of 60 years from the beginning of
the calendar year succeeding the year in which the photograph is published. However, the 2012
amendment deleted this section.
Section 26

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Term of Copyright in Cinematograph Films
Cinematograph Films has a copyright that lasts for sixty years from the start of the calendar year
following the year in which the film is published.
Section 27
Term of copyright in sound recording
Sound recording copyright is valid for sixty years from the beginning of the calendar year following
the year in which the sound recording is published.
Section 28
Term of Copyright Government works
In the event of a Government production, when the Government is the first owner of the copyright, the
copyright lasts for sixty years from the start of the calendar year following the year in which the work
was first published.
Section 28A
Copyright terms in works of public ventures
The copyright term in which a public undertaking is the first proprietor. When a public undertaking is
the first owner of the copyright in a work, the copyright lasts for sixty years from the beginning of the
calendar year following the year in which the work is first published.
Section 29
Copyright in international organizationÕs works
In the case of an international organizationÕs work to which the requirements of section 41 apply,
copyright lasts for sixty years from the start of the calendar year succeeding the year in which the
work is first published.
Section 30
Voluntary Licensing: Expanding Copyright Opportunities
The author has full ownership of their artistic creation and has the power to issue licenses pertaining
to said work.
Section 30 of the Indian Act addresses the voluntary licensing of copyright.
Under this section, the owner has the ability to grant any interest in their copyright to another person
through a written license.
This license must be duly signed by the content owner or their authorised representative.

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ItÕs important to note that a license can be granted not only for existing works but also for future
works.
In the case of future works, the license takes effect once the work comes into existence.
In the event that a licensee for a future work passes away before the work is realised, their legal
representatives are entitled to the benefits of the license, unless otherwise specified.
The process of obtaining a license shares similarities with that of an assignment deed, and may
require certain adjustments, as detailed in Section 19 (Section 30A).
Therefore, a license deed should include essential details such as:
1. Duration of the license

2. Rights being licensed
3. Territorial extent of the license
4. Amount of royalty payable
5. Terms regarding revision, extension, and termination
By adhering to these particulars, both the owner and the licensee can establish clear and
comprehensive agreements, allowing for the authorised use of copyrighted material while
safeguarding the interests of all parties involved.
Exploring the Spectrum of Voluntary Copyright Licenses
Here are some common categories of voluntary licenses:
1. Exclusive License: An exclusive license, as defined in Section 2(j), grants the licensee and those
authorised by them the exclusive rights encompassed within the copyrighted work. This
exclusivity means that no other individuals or entities can exercise the same rights granted by the
license.
2. Non-Exclusive License: A non-exclusive license does not bestow the right of exclusion. It
represents a granting of authority to perform a specific action that would otherwise be considered
an infringement. When the owner grants a non-exclusive license, they retain their rights and
economic claims on the work while permitting others to utilise it within the parameters specified in
the license.
3. Co-Exclusive License: In a co-exclusive license arrangement, the licensor grants licenses to
multiple licensees but limits the group of additional licensees to a specific, defined set. This
arrangement ensures that only a select group can obtain licenses for the work, maintaining a
sense of exclusivity within that limited scope.
4. Sole License: A sole license provides exclusive rights to both the licensor and the licensee,
excluding any other third party from utilising the licensed work. It establishes a unique
arrangement wherein only the licensor and licensee possess the authority to exercise the granted
rights.
5. Implied License: An implied license arises when the author implicitly allows or permits the use of
their work. For example, if the author has knowledge of someone using their work but takes no
action to prevent it, an implied license can be inferred.

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Compulsory License
India, as a member of the Berne Convention, has included the compulsory license provision in the
Indian Act.
The Act outlines circumstances under which a compulsory license may be granted for Indian work in
the public interest.
Granting Compulsory Licenses for Withheld Works from Public
The Indian Act includes provisions for the issuance of compulsory licenses in cases where a work has
been published or performed in public but is being withheld from the public.
This empowers the Appellate Board to direct the Registrar to grant a license upon receiving a written
complaint under the Act.
However, certain conditions must be met before the Board exercises its power.
These conditions include approaching the owner of the work for a license and the owner refusing to
publish or allow the republication of the work, thereby withholding it from the public.
In situations where multiple complaints are filed, the license will be granted to the complainant
deemed by the Copyright Board to serve the interests of the general public.

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e. Infringement and Remedies (ss50-61)
What is Copyright
The term ÒcopyrightÓ describes a group of legal privileges that belong to the person who first created
an original work of authorship, such as a piece of literature, music, film, or software. The owner of the
copyright, or the person who created the original work, has control over it. He can grant others access
or maintain complete ownership by forbidding others from reproducing or duplicating it.
Section14
According to Section 14 of the Copyright Act of 1957, copyright is the exclusive right to perform or
authorise the performance of any of the following acts in relation to a work or any significant portion
thereof:
Any kind of reproduction is permitted, including saving the work in any format.
Publicize the work and distribute copies of it.
Execute the Task in the Public
Create any cinematic production in homage to the work
Make an adaption of the text by translating it
Copyright Infringement
Unauthorized use of a work protected by copyright is copyright infringement. Thus, it is the

unauthorised use of someone elseÕs copyrighted work that violates the ownerÕs rights, such as the
right to reproduce, distribute, exhibit, or perform the protected work.
Section-51
When copyright is violated is specified in Section 51 of the Copyright Act. Section 51 of the Act states
that a copyright violation occurs if:
Any act that only the copyright holder is authorised to perform is carried out by a person without
the copyright holderÕs consent.
Unless he was unaware or had no cause to suspect that such consent would result in a breach of
copyright, a person permits the use of the location for communication, selling, distribution, or
exhibition of an infringing work.
Someone brings in pirated copies of a work.
Without the copyright holderÕs permission, someone reproduces his work.
Section 57. AuthorÕs special rights.

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1[(1) Independently of the authors copyright and even after the assignment either wholly or partially of
the said copyright, the author of a work shall have the right--
---
(a) to claim authorship of the work; and
---
((b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in
relation to the said work 2*** if such distortion, mutilation, modification or other act would be
prejudicial to his honour or reputation:
Provided that the author shall not have any right to restrain or claim damages in respect of any
adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.
Explanation._-- Failure to display a work or to display it to the satisfaction of the author shall not be
deemed to be an infringement of the rights conferred by this section.]
(2) The right conferred upon an author of a work by sub-section (1), 3***, may be exercised by the
legal representatives of the author.
Elements of Copyright Infringement

The author was the sole creator of the piece.
In fact, the accused plagiarised the authorÕs work. It is crucial to remember that not every factual
copying is punishable by law. To demonstrate that the defendant has violated the authorÕs
copyright, there must be considerable similarity between the authorÕs and the defendantÕs works
Civil Remedies for Copyright Infringement
Interlocutory Injunctions
The most important remedy is the issuance of an interlocutory injunction. Most frequently, a request
for interlocutory relief is made, and the case seldom gets past the interlocutory stage. An
interlocutory injunction may only be granted under three circumstances: a case of first impressions. A
balance between cost and convenience is also necessary. Last but not least, there must be damage
that cannot be repaired.
Pecuniary Remedies
Three monetary remedies are also available to copyright owners under Sections 55 and 58 of the
Copyright Act of 1957. First, a profit account enables the owner to demand an amount equal to the
profit obtained by illegal means. Second, compensating damages enables the copyright owner to
recover losses he incurred due to the infringement. Third, conversion damages are calculated based
on the itemÕs worth.
Anton Pillar Orders

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The ownership in Anton Pillar AG V. Manufacturing Processes gave rise to the name of the Anton Pillar
order. An Anton Pillar Order has the following components: First, a court must issue an injunction
prohibiting the offender from damaging or stealing property. Second, a court order allows the
plaintiffÕs attorney to search the defendantÕs property and remove any items they keep in safekeeping.
The defendant should be required to reveal the names and addresses of suppliers and customers as
the third order.
Criminal Remedies
The Copyright Act of 1957 provides the following remedies for infringement:
Up to three years in jail but no less than six months

The maximum fine is 2,00,000, but it cannot be less than 50,000.
Searching for and seizing counterfeit goods
Delivery of counterfeit goods to the owner of the copyright
Fair dealing defence is a crucial component of copyright law. The fair dealing defence permitted some
literary work consumption that would have otherwise violated copyrights. According to the fair dealing
defence, copyrights cannot impede the same creativity that the law is designed to encourage. It is Òan
essential component of the social bargain at the core of copyright law, in which we yield some
restricted private property rights to assure the benefits of creation to a living culture.Ó

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f. Exceptions: Fair Dealing
What is the ÒFair Dealing DoctrineÓ?
A legal term known as ÒFair DealingÓ enables someone to make limited uses of a work without the
ownerÕs consent. The four elements primarily determine the fairness of the deal. They are-
The objective of the use

What sort of work
The quantity of work put in
The impact of a used work on the original
Section 13 of Copyright Act, 1957
Under this section, copyright protection is conferred on literary works, dramatic works, musical works,
artistic works, cinematographic films and sound recordings. Copyright provides us a bundle of rights
under section 14 of the said act. These rights are exercised exclusively y the owner of such original
work. It includes right of adaptation, right of reproduction etc. Such right takes birth from the moment
such work is created. Mere idea is not a copyright subject matter.
Under section 17 of the said act, the author or creator is the first owner of copyright. So IPR provides
exclusive rights to the true owner of the original content. But there are certain exceptions to
copyright. Section 52 of Copyright Act, 1957 deals with such exceptions which is also known as
doctrine of fair dealing.
Doctrine of Fair Dealing
There is no such definition of fair dealing but this concept is very widely interpreted. It is a legal
doctrine which clarifies the issue that up to what extent the material is to be copied/ used. There
exists a difference between fair dealing and infringement of copyright. This concept depends upon
the facts and circumstances of each case.
The fair nature of the dealing depends on the following four factors:
the purpose of use
the nature of the work
the amount of the work used, and
the effect of use of the work on the original
According to section 52 of the said act following are the exclusions from
copyright infringement because they constitute the fair dealing:
The material copied for the purpose of research (All works except Computer Programmes)
Work copied for criticism or review (All works except Computer Programmes)

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Fair dealing of any work used to report current affairs (Computer Programmes)
Legally obtained copies for non-commercial personal use, and making their copies further is fair
dealing under copyright act (Computer Programmes)
Transient or incidental storage of a work or performance purely in the technical process of
electronic transmission or communication to the public (All Works)
Legislative material (All Works)
Reading the content in public (Sound Recordings)
Publication in collection of non-copyright matter, bona fide intended for instructional use (Literary
or dramatic works)
Reproduction by teacher or pupil (All Works)
Most importantly, the question and answers in the examination (All works)
Performance in educational institution (All works)
A recording heard in residential premises (Sound recordings)
Reproduction of newspaper and articles (All works)
Storing work in non-commercial library (All works)
Making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart
or plan) by or under the direction of the person in charge for the use of the library if such book is
not available for sale in India (Literary works)
Material used for the purpose of research, private study or publication (Literary, dramatic or
musical works)
Report of any committee, commission, council, board appointed by Government (Literary works)
The making or publishing of a painting, drawing, engraving or photograph of a work (Artistic work)
The making or publishing of a painting, drawing, engraving or photograph of a sculpture if such
work is permanently situated in a public place (Artistic work)
Any judgment or order by court, tribunal or other judicial authority (Literary works)
Storage, reconstruction and exhibition (Cinematographic films)
The making or publishing of a painting, drawing, engraving or photograph of a sculpture if such
work is permanently situated in a public place (Artistic work)
The above list is not exhaustive. The fair dealing includes many other materials also. Therefore we can
clearly say that any use which is not solely used for commercial purpose comes under the exception
of copyright materials. Moreover, the doctrine of fair use, as the name suggests, the content copied
for fair dealing comes under this category.
So, there are certain exceptions to copyright infringement of which we can take advantage of. This act
provides the protection to the owner of copyright material but it also permits the use of such material
to public at large up to certain limitation. So, doctrine of fair dealing is very important in copyright law.

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g. International Copyright Order (ss40-41)
INTERNATIONAL COPYRIGHT ORDER
[8] ÒA significant component of legislation governing the copyright of foreign works is the
International Copyright OrderÓ. It was passed on March 24, 1999, and it became effective on April
6, 1999. It was adopted by the Central Government under the authority granted to it by Section 40 of
the Copyright Act of 1957. It was adopted to replace its forerunner, the International Copyright Order
of 1991. A schedule that is broken up into six parts and lists the nations that are entitled to copyright
protection in India is included in the Order along with the conditions and processes for foreign works.
The nations that have signed the
1971 Berne Convention

The 1951 Universal Copyright Convention
Convention on Phonograms in Geneva, 1971.
Agreement Regarding Trade-Related Aspects of Intellectual Property Rights.

Who are eligible to get protection under the Copyright Act, 1957 are those
who have either ratified, accepted, or acceded to the aforementioned Conventions, or who have not
yet ratified, accepted, or acceded to the aforementioned Conventions.
COPYRIGHT INFRINGEMENT
Unauthorized use of a work that has been granted copyright is known as copyright infringement.
Thus, it is the unauthorized use of someone elseÕs copyrighted work, which violates the ownerÕs rights
to the workÕs reproduction, distribution, exhibition, and performance.
Section 51 of the Copyright Act specify when a copyright is infringed.
Any act that only the copyright holder is authorized to perform is carried out by someone else
without first receiving consent from them.
A person authorizes the use of the space for the transmission, sale, distribution, or display of an
unauthorized work unless they know or have good reason to suspect that doing so will result in a
copyright violation.
A person brings in counterfeit copies of a work
Without getting permission from the copyright holder, someone reproduces his work in any way
THE COPYRIGHT ACT OF 1957
Despite the fact that Chapter IX of the Act deals with international copyright, the phrases Òforeign
worksÓ or Òinternational copyrightÓ are not defined elsewhere in the Act9. However, section 2(l) of the
Act describes a ÒIndian workÓ as a piece of music, theater, or writing in which
whose author is an Indian national;

whose initial publication is in India; or

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Its author was an Indian citizen at the time the book was written, in the case of an unpublished
work.
As a result, it is safe to assume that works other than Indian Works come within the category of
Foreign Works. Additionally, section 40 of the Act provides definition of ÒForeign WorkÓ. Under
sections 40 through 43 of Chapter IX, international copyright is covered. Essentially, the Act grants
the Central Government the authority to restrict the rights of foreign writers in certain circumstances
and treats the Foreign Works of the nations included as if they were Indian works under the 1999
international copyright order.
SECTION Ð 40 POWER TO EXTEND COPYRIGHT TO FOREIGN WORK
What is foreign work?
The Copyright Act of 1957 does not include a definition for the word Òforeign work.Ó However, it
stands to reason that any task that does not qualify as ÒIndian WorkÓ under Section 2(l) of the Act will
be considered Òforeign workÓ when evaluating what constitutes Òforeign work.Ó
By publishing an Order in the Official Gazette, the Central Government is permitted by this section of
the Copyright Act to extend copyright to foreign works. One essential element of this clause is that
only the countries named in The International Copyright Order, 1999Ñthe OrderÑmay be granted
copyright in India. The Òterritories outside IndiaÓ listed in the subsections of this clause must be
included in the International Copyright Order of 1999. Therefore, if a countryÕs name is not included in
the International Copyright Order, 1999, it cannot assert copyright for its works in India. The following
works can have any or all of the provisions of the Copyright Act extended to them by the Central
Government, treating them as though they were Indian work.
It is assumed that all works published outside of India were first published there.
Unpublished works by individuals who, at the time the work was written, were subjects or citizens
of another nation are to be treated as though they were Indian citizens.
Even though an author doesnÕt have a home in India, the Copyright Act nonetheless applies to him
as though he did.
Any work whose creator was a subject or citizen of a foreign nation at the time of the workÕs first
publication, or who was deceased at the time of the first publication and a subject or citizen of
India.
PROVISO OF SECTION 40 OF THE COPYRIGHT ACT OF 1957
The International Copyright Order, 1999 and any other Order made in accordance to this section
must, however, comply with the proviso to this section, which states that before adding a country
(other than those with which India has entered into a Treaty or which is a party to a Convention to
which India is also a party), The central authority must guarantee that the concerned nation has
implemented or committed to implementing measures to preserve the right to copy works there. The
duration of copyright protection in India may not exceed the duration of protection provided in the
nation where the foreign work was first created. Furthermore, the length of protection offered by the
foreign nation must not be longer than that of India.

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SECTION 40A Ð BROADCASTING ORGANISATIONS AND PERFORMERS ARE INCLUDED IN THE

APPLICATION OF CHAPTER VIII
The Central Government may extend the rights under Chapter VIII to foreign broadcasts and
performances if it is satisfied that a foreign nation has made or has agreed to make the necessary
provisions for the protection of rights in that nation, as is possible in India under the Copyright Act of
1957 the central government has the authority to increase the rights given to broadcasting
organizations under Chapter VIII of the Copyright Act of 1957.The International Copyright Order, 1999
(the ÒOrderÓ) applies to broadcasting organizations as if their headquarters were in India or as if the
broadcast originated from an Indian transmitter.
To portray performances that took place outside of India as though they were from India.
To integrate performances as though they were published in India when a sound recording that
was released in a nation party to the Order does so.
To live performances that are not fixed to a sound recording that are broadcast by a broadcasting
organization whose headquarters are in a country covered by the Order as though the headquarters
were located in India or where the broadcast is transmitted from a transmitter located in a country
covered by the Order as though the broadcast was transmitted from India. This clause also grants the
International Copyright Order the power to fully or partially apply Chapter VIII to broadcasts or
performances that are made abroad, as well as to broadcasts or performances that are made
generally or in groups.
SECTION Ð 41 EXISTENCE OF COPYRIGHT THROUGHOUT INDIA
According to this section, copyright in a foreign work would exists throughout India where,
A (foreign) work is created or published for the first time by, or with the guidance of, any entity;
At the time of the bookÕs initial publication in India, the copyright to the work was not established.
Either the work is published in accordance with a contract in that regard with the author, in which
case the contract does not reserve to the author the copyright in the work, or under section 17, which
addresses the idea of the First Owner of Copyright, any copyright in the work would belong to the
organization. For the purposes of holding, managing, and enforcing copyright as well as in relation to
all legal proceedings involving copyright, any international organization that at the relevant time
lacked the legal capacity of a body corporate shall have and be deemed to have had that capacity at
all relevant times. The organizations covered by this section are those that are listed in the 1999
International Copyright Order.

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h. Issues in Digital Copyrights
Internet and Copyright Infringement
The internet has been a prime threat to Copyright Protection for quite a while now. The information
available online in the form of news, graphics, stories, images, videos, screenplay, eBooks, and so on,
has varying degrees of copyright protection. Moreover, the vast levels of information available on the
internet make it extremely difficult to determine whether a specific piece of work is a duplication of
the original work or not.
ThereÕs a common misconception nowadays that the information accessed on the internet in the
public domain can be copied freely by anyone. However, it is not the case unless and until a specific
piece of information has been made available by the government authorities, or the term for copyright
protection has expired, or the creator has surrendered his or her right.
Copyright infringement on the Internet can take place on different platforms and in different
ways, which are as follows:
1. Downloading Content
The internet has always been a medium of downloading files or software to the hard disk of an
individualÕs computer system. The process of downloading may revolve around reproducing or
creating a copy of the content available on the internet. However, there are indeed a lot of restrictions,
which an individual must take into consideration before downloading something to prevent
committing an offense.
2. Derivative Works
Two or more programs compiled to create a derivative work subject to copyright infringement or
violation.
3. Hot-linking
It refers to displaying an image on a website by linking to the original website hosting that image. The
process of hot-linking may violate the rights of a copyright owner.
4. Computer Software
Computer software refers to a collection of programs, documentation, and procedures that perform a
variety of tasks on a computer system. Software piracy is a form of copyright infringement as it
involves unauthorized copying, distributing, exporting, renting or selling of the copyrighted software.
5. Multimedia

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The entire concept of multimedia is way too broad as it consists of multiple categories of material
within itself, including sounds, videos, text, images, graphics, live videos of speakers, presentations,
and so on.
Copyright infringement in the multimedia environment involves:
Copying the unique works of the creators without seeking their permission
Distributing the works for any purpose other than education-related
Creating unauthorized copies of the original works
Selling or offering for sale the unique works
6. Social Media Platforms
Social media platforms, at present, have become a prominent mode of connecting with people across
the globe. Such platforms involve using and sharing the works that may be copyrighted. The
widespread practice of sharing material such as pictures and videos on social media networks has led
to an increasing number of copyright infringement cases. The false notion that everything available on
social media can be used freely is the root cause of the entire situation. Copyright violations on social
media platforms can take place in the following ways:
Saving, sharing, or re-posting the copyright-protected works

Claiming ownership of already protected works
Using the original works of other people without seeking their consen
Remedies against infringement of Copyright in Digital Domain

The threats of infringement of Copyright in the digital domain have given rise to certain preventive
measures which ensure that the rights and interest of the owner or creators are protected. Some of
the important remedies available are:
Blockchain Technology
It is highly secured decentralised public ledger that is used to record peer to peer transaction. In each
transaction that occurs, the parties agree to details to encode it into the block of digital data which is
uniquely signed or identified. It is due to its functioning that it is considered an excellent technology to
resolve the problem of copyright in Digital Domain
Digital Watermarks
One of the easiest ways to protect the work of the creator of Copyright as it helps the owner to trace
his work and prevent it from duplication. In this technique, a watermark is embedded in the original
work of the author in this way the unauthorised copying of the work can be detected.
Access control and copy control

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It is a software which enables a user to check the creator on free or illegal use of his work.

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UNIT-II: Trademarks (The Trademarks Act, 1999)
a. Introduction to Trademark Law
What is a Trademark?
Trademark is a branch of intellectual property rights. Intellectual property rights permit people to
maintain ownership rights of their innovative product and creative activity. The intellectual property
came to light because of the efforts of human labour, so it is limited by a number of charges for the
registration and charges for infringement. Types of intellectual property are Trademarks, Copyright
Act, Patent Act, and Designs Act.
A trademark includes a name, word, or sign that differentiates goods from the goods of other
enterprises. Marketing of goods or services by the procedure becomes much easier with a trademark
because recognition of product with the trademark is assured and easier. The owner can prevent the
use of his mark or sign by another competitor.
Trademark is a marketing tool which increases financing of the business. A trademark is not always a
brand but the brand is always is a trademark. Sometimes there is a confusion between trademark and
brand. The brand name can be simply a symbol or logo but the trademark is a distinguishing sign or
indicator in a business organization as it has a wider implication than brands. People are more
influenced by the distinctive trademark that reflects the quality of the product. A trademark can be a
logo, picture mark or a slogan.
Types of Trademark
Service mark
A service mark is any symbol name, sign, device or word which is intentionally used in trade to
recognize and differentiate the services of one provider from others. Service marks do not cover
material goods but only the allocation of services. Service marks are used in day to day services :
Sponsorship
Hotel services
Entertainment services
Speed reading instruction
Management and investment
Housing development services
A service mark is expected to play a critical role in promoting and selling a product or services. A
product is indicated by its service mark, and that productÕs service mark is also known as a
trademark.

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Collective mark
A collective mark is used by employees and a collective group, or by members of a collaborative

association, or the other group or organization to identify the source of goods or services. A collective
mark indicates a mark which is used for goods and services and for the group of organizations with
similar characteristics. The organization or group uses this mark for more than one person who is
acting in a group organization or legal entity for dividing the different goods or services. Two types of
collective marks for distinguishing with other goods or services of similar nature:
Collective mark indicates that the marketer, trader or person is a part of the specified group or
organization. Example Ð CA is a collective trademark which is used by the Institute of the
chartered accountant.
Collective trademark and collective service mark are used to indicate the origin or source of the
product.
A collective trademark is used by the single members of a group of an organization but is registered
as a whole group. Example- CA is the title or mark which given to the member of Institute of a
chartered accountant. That collective mark may be used by the group of association. This was added
to the Trademark Act, 1988.
Certification mark
A certificate mark is verification or confirmation of matter by providing assurance that some act has
been done or some judicial formality has been complied with. A certification mark indicates certain
qualities of goods or services with which the mark are used is certified, a certification mark is defined
in the Trademark Act, 1999.
Certification trade mark means a mark competent of identifying the goods or services in connection
with which it is used in the manner of trade, which is certified by the owner of the mark in respect of
source, body, mode of manufacturer of goods or performances of assistance, quality, accuracy or
other characteristics.
Those goods or services which not so certified and registrable as such under this Act, in respect of
those goods or services in the name as the proprietor of the certification trade mark, of that person.
Registration of certification mark is done according to the Trademark Act, 1999. Requirements for
registration is the product must be competent to certify.
Trade dress
Trade dress is a term that refers to features of the visual appearance of a product or design of a
building or its packaging that denote the source of the product to customers. It is a form of
intellectual property. Trade dress protection is implemented to protect consumers from packaging or
appearance of products that framed to imitate other products.
Essential of trade dress

Anything that makes an overall look or overall dress and feel of brand in the market.

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The consumer believes that trade dress is the main indicator of differentiation of one brand or
goods from others.
The requirement for the registration of trade dress is the same as the registration of the logo,
mark. The features in trade dress are size, colour, texture, graphics, design, shape, packaging,
and many more.
Designation of trademark
Trademark is designated by:
ª (ª is used for an unregistered trademark.it is used to promote or brand goods).

℠ ( used for an unregistered service mark.it is used to promote or brand services).
R (letter R is surrounded by a circle and used for registered trademark).

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b. Brief Introduction to related International Treaties and

Conventions
1. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 1
January 1995
Introduction
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
Important Checkpoints
Came into force:- 1st Jan 1995
Include most of Berne convention Rules
Obligation under TRIPS apply to all member equally but developing countries were given more
time to make changes in their national laws. I.e. Implemented within 6 years i.e. 31st December
200 for developed countries
TRIPS included provisions regarding :
¥ National Treatment (Article 3)
¥ Most Favoured Nation (Article 4): With regard to the protection of intellectual property, any
advantage, favour, privilege or immunity granted by a Member to the nationals of any other country
shall be accorded immediately and unconditionally to the nationals of all other Members.
The TRIPS agreement sets out standards of protection to its members

Enforcement of IPR's, provides procedures, remedies, provisional measures in detail.
WTO's dispute settlement procedures apply.
TRIPS plus: In recent years, many developing countries have been coming under pressure to enact
or implement even tougher or more restrictive conditions in their patent laws than are required by
the TRIPS Agreement - these are known as 'TRIPS plus' provisions.
2. 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.

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WTO-TRIPS
The establishment of WTO as a result of institutionalization of international framework of trade calls

for harmonization of several aspects of Indian Law relating to Intellectual Property Rights. The TRIPS
agreement set minimum standards for protection for IPR rights and also set a time frame within which
countries were required to make changes in their laws to comply with the required degree of
protection. In view of this, India has taken action to modify and amend the various IP Acts in the last
few years.
3. Paris Convention for the Protection of Industrial Property, 1883
Check Point
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on Paris
March 20, 1883, was one of the first intellectual property treaties.
It 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.
IndiaÕs membership into the convention came into force on December 7, 1998.
The Convention applies to industrial property in the widest sense, including patents, marks,
industrial designs, utility models, trade names, geographical indications and the repression of
unfair competition. The substantive provisions of the Convention may be divided into three main
categories namely national treatment, right of priority, common rules
4. Madrid Agreement, 1891
Introduction
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.
Check Point
- The Madrid Agreement and Protocol are open to any State which is party to the Paris Convention for
the Protection of Industrial Property.
- States and organizations party to the Madrid system are collectively referred to as Contracting
Parties.
The system makes it possible to protect a mark in a large number of countries by obtaining an
international registration that has effect in each of the designated Contracting Parties.
The system of international registration of marks is governed by two treaties: the Madrid
Agreement, and the Protocol relating to that Agreement.
5. European Union Trademark (EU Trademark)

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The new EU Trademark formerly know as the Community Trademark (CTM), the new European
Union Intellectual Property Office EUIPO, formerly known as the Office for the Harmonization in
the Internal Market.
The new EU trade mark Regulation enters into force on March 23rd. As a result, the Office for
Harmonization in the Internal Market (OHIM) will change its name to the European Intellectual
Property Office (EUIPO).
Claiming all Nice class headings in a given class no longer automatically claims ALL goods and
services in the class, even if they do not fall under the class headings (e.g. translation services).
There is a grace period of 6 months to claim all goods in a given class.
Trademarks that are registered with the EUIPO have the privilege of protection throughout all 27
European Union member states.
_________________________________________________________________________________
PARIS CONVENTION
One of the most comprehensive international instruments on industrial property.
It was prescribed 2 important provisions:

1) It guarantees a basic light known as right to national treatment, in each member countries.
2. Establishes another basic right, the right to priority. Under the principle of national treatment each
member state ensures same quality and quantity of protection to eligible frequencies as it grants
protection to its own nationals.
Whereas, under right to priority if an application is filed in a country which is member of Paris
convention turn the Paris convention then the person will have certain period during which he may
also apply for protection in different member countries.
MADRID CONVENTION
This protocol aims to make Madrid system more flexible and compatible in the domestic
legislations of certain countries.
The aim or the object is to streamline the process of obtaining global trademark protection.
TRADEMARK TREATY, 1999
It was adopted on 27 October, 1994 at Geneva in order to streamline the national and regional
trademark registration procedure; certain features of registrations are harmonized and simplified.

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c. Definitions (s2), Registration of Trademarks, Procedure, Grounds

of Refusal and Well Known Trademarks (ss9-12, ss18-23 and s33)
Grounds of Refusal (S.9-12)
Section 9: Absolute grounds for refusal of registration
Section 9 of the act lays down absolute grounds for refusal of registration of trademarks under the
act. Section 9(1) provides trademarks are not registrable:
1. The trademarks which are of any distinctive character, which means not capable of distinguishing
the goods or services of one person from those of another person
2. The trademark, which consist exclusively of marks or indications, which may serve in to design the
kind, quality, quantity, purpose, values, geographical origin, or the time of production of the
goods.
3. The trademark which consist exclusively of marks or indications, which have become customary in
the current language and established practices of the trade.
However, you treat mark is not to be refused to registration. If before the date of application for
registration, it has acquired distinctive character as a result of the use made of it or is a well known
trademark. For example, If a mark through use, becomes clearly associated in the public mind with
the goods or service of a particular person, then it could not be legitimately used as a trademark by
others.
Grounds of refusal under section 9(2)
Section 9(2) make a mark non-registrable if
1. It is of such nature as to deceive the public or cause confusion

2. It contains or comprises of any matter, which may hurt the religious sentiments of any class or
section of citizens of India
3. It contains scandalous or obscene matter
4. Its use is prohibited under the emblems and names act.
Grounds of refusal under section 9(3)
According to section 9(3) a mark is not to be registered as a trademark if it consists exclusively of
1. The shape of goods which results from the nature of the goods themselves
2. The shape of goods which is necessary to obtain a technical result
3. The shape which gives substantial value to the goods
Section 10: Limitation as to colour

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According to section 10, a trademark may be limited, fully or in part to any combination of colours.
Any such limitation to be taken into consideration by the tribunal, while deciding the distinctive
character of the trademark. So far as a trademark is registered without limitation of it is deemed to
have been registered for all colours.
Section 11: Relative grounds for refusal of registration
Section 11 for grounds for refusal of registration of Trademark
11(1) states that the trademark registrar may refuse the registration of a trademark if there is
already a similar or identical registered trademark for the goods and services. And that allowing
registration of the new trademark will lead to confusion for the public. In simple words, if there is
already a trademark that is registered for certain goods or services, the registrar will not let you
register another trademark that is very similar to or identical for the same goods and service. That
is because the consumer will not be able to differentiate between your brand and the brand of the
other trademark easily and may confuse one brand for the other.
Section 11(2) states that the registrar can refuse the registration of any trademark that would take
advantage of a similar or identical well-known trademark. They may also refuse registration if
registration may detrimentally affect the distinctive character or reputation of an already well-
known trademark in India. Essentially if there is a trademark that is very well known in India, then
the registrar may not allow you to register a trademark that is very similar to that well-known mark.
Because the consumer may not be able to differentiate between the two brands and because of
that you may be able to take advantage of the goodwill that that brand has built. Additionally, any
negative action that you take could potentially harm that brandÕs goodwill.
11(3) states that any trademark that would be prevented by copyright law or the law of passing off
will also not be allowed to be registered. The registry can refuse to register any trademark that
would be banned from registration due to copyright law or the law of passing off.
Section 12: Registration in the case of honest concurrent use
Registration of Trademark (S.18-23)
Section 18: Application for registration
Any person claiming to be the proprietor of a trademark used or proposed by him, can apply in writing
to the registrar in the prescribed manner for registration of his trademark.
A single application has to be made for registration of a trademark for different classes of goods and
services and the fees shall be in respect of each such class of goods and services.
The application for registration of a trademark is to be filed in the office of the trademark registry
within whose territorial limits the principal place of business in India of the applicant is situated.
The registrar may refuse the application or accepted, absolutely or subject to some amendments,
modifications, conditions or limitations, if any as he may think fit. In case of refusal or conditional
acceptance, the registrar shall record in writing the grounds for refusal or conditional acceptance.

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Section 19: Withdrawal of Acceptance
after the acceptance of an application for registration of trademark, but before its registration, if the
registrar is satisfied
a) that the application has been accepted in error or
b) that in the circumstances of the case, the trademark should not be registered or should be
registered subject to the conditions or limitations or different from the conditions or limitation subject
to which the application has been accepted
Then the registrar may withdraw the acceptance after hearing the applicant if he so desires, and
proceed as if the application had not been accepted.
Section 20: advertisement of application
According to section 20, when an application for registration of a trademark has been accepted,
whether absolutely or subject to conditions, the registrar shall cause the application to be advertised
as accepted together with the conditions or limitations, if any subject to which it has been accepted.
Where an application has been advertised before acceptance or where after advertisement of an
application
i) an error in the application has been corrected or
ii) The application has been permitted to be amended under section 22
The registrar may in such case cause the application to be advertised again or notify the correction or
amendment made in the application when the error was corrected or application was amended
Section 21: opposition to registration
Section 21 enables a person to give notice of opposition to registration in writing to the registrar
within four months from the date of advertisement of an application.
Under section 21, notice of opposition may be given to the registrar by any person opposing
registration and the applicant in reply can file the counter statement. Then the registrar is required
after giving an opportunity of hearing to the applicant and his opponent to decide whether
registration is to be permitted absolutely or subject to such conditions or limitations
The registrar is duty bound to serve a copy of the notice of opposition on the applicant for
registration. The applicant shall send a counter statement of the grounds on which he relies for his
application within two months from receiving copy of notice of opposition. If the application fails to do
so he shall be deemed to have abandoned his application and if the applicant senses counter
statement, the registrar serve the copy to the opponent.
Any evidence on which the opponent and the application relies is to be submitted to the registrar
within time and the registrar will give them an opportunity of being heard. The registrar has to decide
after hearing the parties and considering evidence as to whether registration is to be permitted.

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Section 23: registration
a trademark is registered under section 23. When our application for registration has been accepted
and either
i) the application is not being opposed and time for notice of opposition has expired or
ii) The application has been opposed and the opposition has been decided in favour of the
application.
The registrar shall register the said trademark within 18 months of the filing of the application.
The trademark shall be registered as the date of the making of the application. exclusivity in the mark
on registration is granted with effect from the date of application for registration.
Where registration of trademark is not completed within 12 months from the date of application. By
default on the part of the applicant. The registrar may after giving him notice, read the application as
abandon unless it is completed within the time specified in the notice.
The registrar may amend the register or a certificate of registration for the purpose of correcting a
clerical error or an obvious mistake.
Well Known Trademarks
Section 2(1)(zg) of the Trademarks Act, 1999, defines a well-known trademark as a mark that has
gained enough recognition among a significant portion of the public who utilise such goods or obtain
such services that the use of the mark in relation to other goods or services is likely to be interpreted
as denoting a connection between those goods or services and the person using the mark in
connection with the first mentioned goods or services.
11 (2) Protection of well-known marks across all classes
The provision extends to the ambit of protecting the well known trademarks. So, according to this, the
well known trademarks are recognised and patented in all the classes of goods and services.
11 (6) Factors taken into consideration while determining the trademark as well-
known
The WIPO adopted the joint resolution on the provisions of the protection of Well known marks in the
year 1999 for protecting the well known marks from misusing and infringing whereas various other
factors for determining a well known trademark are provided in it. India adopted this in Section 11(6)
of Trademarks Act. The factors include:-
1. Knowledge about mark in relevant sections of public

2. Duration, Extent and Geographical area in which trademark is used.
3. Registration or Application for registration of Trademark till the extent it reflects the use and
recognition of the trade mark.

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4. Record of the successful enforcement of rights in trademark which includes the record
mentioning that the trademark is recognised as a well known by any court or registrar.
11 (9) Ð Conditions not required for well-known trademark registration
It provides certain conditions which need not to be required for the purpose of granting a well known
trademark. It is as:-
1. Trade Mark is being used in India;

2. Trade Mark has been registered;
3. Application for registration of the trade mark has been filed in India;
4. Trademark is well known in or is registered in any other jurisdiction apart from India.
5. Trademark is well known and popular to the public at large in the country.
11 (10) ÐObligation on the Registrar
Its an Obligation on the registrar that for any dispute and/or any infringement the registrar shall
protect the interest of well known trademark against identical ones and should also take consideration
and notice any malafide intention and ill motive of the complainant/Opponent.

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d. Passing Off, Infringement and Exceptions to Infringement Actions,

Remedies (ss27-30, s34, ss134-135)
Effect of registration
Passing off (S.27-30)
Section 27: no action for infringement of unregistered trademark
Section 27 provides that no person is entitled to institute any proceedings to prevent the
infringement of an unregistered trademark. Neither such person is entitled to recover damages from
such infringement.
Section 27 recognises the common law rights of the trademark owner to take action against any
person for passing of goods as the goods of another person or as services provided by another
persons or the remedies of it.
Section 28: rights conferred by registration
Registration of a trademark gives to the registered proprietor exclusive right to use the same in
relation to the goods in respect of which it has been registered.
The exclusive right to use of a trademark is subject to any conditions and limitation to which
registration is subject.
Where two or more persons are registered proprietor of trademark which are identical or resemble
each other the exclusive right to such marks cannot be accepted against each other. What the
registered proprietor is have a right against third-party for infringement of their respective trademarks
Infringement (S.29)
Section 29: infringement of registered trademarks
Section 29(1) with the situation where the defendant uses a mark which is identical with or
deceptively similar to that of the plaintive in respect of the same goods or services which is likely that
such use is taken as being a use as a trademark.
Section 29(2) is wider in scope and deals with three situations
1. One where the defendant mark is identical to that of the plaintive and in respect of similar goods
2. To wear the marks are similar and in respect of goods which are identical or similar
3. Three. The marks as well as the goods are identical.
But in order to constitute infringement, merely satisfying, one of the three would not suffice, it will
have to be proved that such use by defendant will cause confusion on the part of public

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Section 29(3) states that where both the mark and the goods in respect to the marks are identical.
Then the court shall presume that such use by the defendant is likely to cause confusion on the part
of public. No further enquiry is required in a suit for infringement of trademark.
Section 29(4) deals with cases where marks are identical or similar but the goods with respect to
those marks are not similar.
Exceptions to Infringement Actions (S.30)
When a registered trade mark is not infringed?
According to section 30(2), a registered trade mark is not infringed in the following cases:
(a) where the use in relation to goods or services indicates the kind, quality, quantity, intended
purpose, value, geographical origin, the time of production of goods or of rendering of services or
other characteristics of goods or services;
(b) where a trade mark is registered subject to any conditions or limitations, the use of the trade mark
in any manner in relation to goods to be sold or otherwise traded in, in any place, or in relation to
goods to be exported to any market or in relation to services for use or available or acceptance in any
place or country outside India or in any other circumstances, to which, having regard to those
conditions or limitations, the registration does not extend;
(c) where the use by a person of a trade mark -
(i) in relation to goods connected in the course of trade with the proprietor or a registered user of the
trade mark if, as to those goods or a bulk or which they form part, the registered proprietor or the
registered user conforming to the permitted use has applied the trade mark and has not subsequently
removed use of the trade mark; or
(ii) in relation to services to which the proprietor of such mark or of a registered user conforming to
the permitted use has applied the mark, where the purpose and effect of the use of the mark is to
indicate, in accordance with registered user of the mark;
(d) where the use of a trade mark by a person in relation to goods adapted to form part of, or to be
accessory to, other goods or services in relation to which the trade mark has been used without
infringement of the right given by registration under the Act or might for the time being be so used, if
the use of the trade mark is reasonably necessary in order to indicate that the goods or services are
so adapted, and neither the purpose nor the effect of the use of the trade mark is to indicate,
otherwise than in accordance with the fact, a connection in the course of trade between any person
and the goods or services, as the case may be;
(e) where the use of a registered trade mark, being one of two or more trade marks registered under
the Act which are identical or nearly resemble each other, in exercise of the right to the use of that
trade mark given by registration under the Act.
Remedies (S.134-135)

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Section 134: Suit for infringement to be instituted before district court
No suit
(i) for the infringement of a registered trade mark or
(ii) relating to any right in a registered trade mark or
(iii) for passing off arising out of the use by the defendant of any trade mark which is identical with or
similar to the plaintiff's trade mark whether registered or unregistered is to be instituted in any court
inferior to a district court having jurisdiction to try that suit.
Section 135: relief in suits for infringement or for passing off
Injunction
Injunction is a relief in equity and is based on equitable principles. It is a preventive relief. The purpose
of granting injunction is not to penalise the defendant. The court would have to consider the extent of
restraint to which the defendant should be subjected to in future to safeguard the plaintiffs right and
interest and to prevent the infringement of the trademark and passing of the goods and products of
the defendant as that of the plaintiff.
Injunction may of two kinds:
1. Temporary injection/interim injunction

2. Permanent injunction
Ex parte injunction or any interlocutory order
According to section 135(2) The order for injunction may include an ex parte injunction or any
interlocutory order for any of the following matters:
1. For discovery of documents

2. Preserving of infringing goods, documents or other evidence which are related to the subject
matter of the suit
3. Restraining the defendant from disposing of or dealing with his assets in a manner which may
adversely affect plaintiff's ability to recover damages to
Section 134(3): damages and account of profits
The court shall not grant relief by way of damages or account of profit in the following case:
1. Where in the suit of infringement, the infringement complaint is in relation to a certification

trademark or collective mark
2. Where in a suit for infringement, the defendant satisfies the court
(i) that at the time he commenced to use the trademark complained of in the suit, he was unaware and
had no responsible ground for believing that trademark of the plaintive was on the register that the
plaintive was a registered user Using by way of permitted use

lOMoARcPSD|17141472
(ii) that when he became aware of the existence and nature of the plaintive is right in the trademark,
he sees to use the trademark.
3. Where in suit for passing of the defendant satisfies the court
(i) that at the time he commenced to use the trademark he was unaware and had no reasonable
ground for believing that the trademark of the plaintiff was in use
(ii) that when he became aware of the existence and nature of the plaintive, he ceased to use the
trademark

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e. Assignment and Licensing (ss48-53)

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f. Intellectual Property Appellate Board (ss83-100)

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g. Conflicts of Trademarks with Domain Name

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h. Unconventional Trademarks
What are Unconventional Trademarks?
When talking about trademarks, traditionally trademarks can be defined as any mark which is unique
to the product and was identified with the origin of the product. An unconventional trademark is a new
type of trademark which does not fall into the category of conventional or traditional trademarks.
These trademarks fulfill the conditions of being a trademark but are difficult to register because of
their unusual nature.[6]
In recent years, the registering authorities have faced many challenges due to the number of
trademarks brought forth for being registered. These unconventional trademarks included texture,
shape, scent, outline, body movement, and even TarzanÕs yell.[7]This rise in the number of
unconventional trademarks can be attributed to the non-concrete legal definition provided for a
trademark. On one hand, trademark laws emphasize on having an open definition for the term, where
the function of the mark is given primary importance.[8] Any mark which fulfills the commercial
function of differentiating the said product from other products can be registered as a trademark. On
the other hand, the development of the law relating to a trademark has been in a way which gave
more preference to traditional and conventional marks.
Certain conditions are required to be fulfilled to register an unconventional trademark-
The mark should be intrinsically distinctive.

The mark should be able to distinguish the particular product from other products.
The mark should be capable of graphical representation.
WHAT ARE UNCONVENTIONAL TRADEMARKS?
Unconventional trademarks encompass both visible and non-visible signs and include sounds, smells,
colours, shape of goods, touch/texture, taste, motion/moving images, position marks etc. Apart from
relying upon visual cues, unconventional trademarks rely on sensory experiences to evoke brand
recognition. Unconventional trademarks engage other senses such as hearing, smell and touch to
create memorable brand associations with consumers.
The significance of unconventional trademarks lies in their ability to offer innovative branding
strategies in todayÕs competitive market. With increasing consumer sophistication and evolving
marketing trends, businesses are leveraging unconventional trademarks to create memorable brand
experiences. For example, distinct sounds associated with brands like Netflix or NBC help consumers
identify and connect with these companies beyond visual cues.
In modern branding strategies, unconventional trademarks play a crucial role in establishing emotional
connections with consumers. They go beyond mere identification to evoke feelings, memories, and
associations, enhancing brand loyalty and differentiation. By tapping into sensory experiences,
unconventional trademarks enable brands to stand out in crowded markets and resonate with target
audiences on a deeper level.

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TYPES OF UNCONVENTIONAL TRADEMARKS
Sounds: Sound trademarks are unique auditory elements used to identify the source of products or
services offered in commerce. In India, a sound mark should be graphically represented through a
succession of musical notes, with or without words. It must be submitted in MP3 format and should
not be longer than 30 seconds. Sound marks have become popular over time and they now play a
crucial role in branding, contributing to consumer recognition and brand loyalty. Examples of famous
sound trademarks include the iconic jingles of companies like Intel and Nokia, which are instantly
recognisable to consumers worldwide.
Over time, sound marks have gained recognition and protection under trademark law worldwide. Most
jurisdictions have established frameworks for the registration and enforcement of sound trademarks,
acknowledging their significance in modern marketing strategies. In India, Some notable examples of
sound marks include the Yahoo yodel and the corporate jingle of ICICI Bank.
Colours: Colour trademarks involve the use of specific colours or colour combinations to identify the
source of goods or services. Colours can be powerful marketing tools and enable businesses to
create memorable associations with consumers. Nevertheless, there are specific criteria that must be
met for registration of colour trademarks. While the Trademarks Act provides for registration of a
combination of colours that are unique and contemporary, a single colour must have gained
secondary meaning in connection with a product or service for which it is offered in order to qualify
for registration.
In a landmark judgement and for the first time In re Owens-Corning Fiberglas Corp., 774 F.2d 1116
(Fed. Cir. 1985), the U.S. Court of Appeals recognized that a single colour trademark could be
registered if it had acquired distinctiveness with respect to a particular product. This was the first
instance where a single colour was recognized to perform the functions of a trademark. The Court
ruled that Owens Corning had acquired the right to prevent third parties from using the colour Pink in
their fibreglass insulation products since it had come to be solely associated with them.
In India, a few notable examples of a single colour trademark is the Purple colour of Cadbury, Red for
Christian Louboutin Soles, Turquoise on Jewellery for Tiffany & Co. An illustration of a trademark
consisting of a combination of colours include Green and Yellow for Tractors manufactured by John
Deere.
Smells: Smell trademarks, though less common, are used to distinguish the olfactory characteristics
of products or services. The registration of smell marks presents unique challenges, particularly
concerning their graphical representation and distinctiveness. Unlike visual or auditory elements,
smells are inherently subjective and may vary in perception among individuals. Another prerequisite
for smell marks is that the scent must be a novel feature of the product and it should not perform a
functional feature of the product or service. For example Ð a scent or odour applied to a perfume (or)
cream cannot be trademarked.
Despite these requirements, in jurisdictions such as the United States and United Kingdom,
companies have successfully registered smell trademarks. Most recently, a Dutch company registered
the scent of freshly mown grass for its Tennis balls. Other notable illustrations include Bubble-gum
scented shoes and sandals, Strawberry scented toothbrushes.

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In the Indian scenario, the legal position of smell trademarks remains largely unexplored, and there are
limited precedents or guidelines governing their registration and enforcement. At present, there are
no registered smell marks in India.
Shape of goods/3D marks: These types of unconventional trademarks basically form the aesthetics
of a product consisting of the shape of a product or its packaging. It does not comprise two-
dimensional marks such as a word, numeral or logo. The Trademark Act provides for registration of
the shape of goods and packaging since it fulfils the criteria of graphical representation. However,
there are certain restrictions to the registration of a shape mark and the first condition is that the
shape must not be a part of the nature of the product itself. It must not be a means to obtain a
technical result and should not add substantial value to the product. For example- the round shape of
a cricket ball cannot be protected since it would form the very nature of the ball. While the registration
of a shape mark is challenging compared to conventional trademarks, these marks tend to have a
higher visual appeal and create an indelible impression among consumers.
In Koninklijke Philips Electronics NV v. Remington Consumer Products Ltd. European Union Court
of Justice [2002] ECR I-5475, Case C-299/99 (2002), Philips had initiated infringement action against
Remington Consumer Products for selling trimmers with three headed rotary shavers for which Philips
had obtained registration. Consequently, Remington filed for revocation of the said trademark. The
Court cancelled the registration of Philips by reasoning that the shape was necessary to obtain a
technical result and that it was functional in nature.
Some notable examples of shape and three-dimensional trademarks include the packaging of
Toblerone chocolate, the shape of the Coca-cola bottle for its contours and lines, the Zippo lighters
iconic shape.
Motion/Multimedia: Motion trademarks comprise of a series of moving elements not limited to movie
clips, moving logos of television shows, videos and elements that keep changing position. When
these trademarks are combined with a sound, they are referred to as Multimedia marks. While the
Indian Act does not prohibit registration per se, it struggles to accommodate motion trademarks due
to lack of established guidelines on graphical representation of such marks. At present, a motion mark
can be represented only through a series of still images. It is imperative that the Indian Office starts
accepting video clips of such marks to better understand the nature of the mark.
The first motion trademark to be registered was in 1996 when the USPTO granted protection to the
famous Columbia Pictures logo of a Woman carrying a torch. In India, motion trademarks are
recognized and the first one to be granted protection was NokiaÕs Connecting hands in 2003. Other
notable illustrations include Asian Paints ÒAP Motion markÓ and ToshibaÕs application for its motion
mark ÒTOSHIBAÓ.
Position: A position trademark is a trademark that consists of a specific way in which a mark is affixed
or placed on a product. This includes both figurative and colour elements where owners can claim
exclusive rights over the way in which a label or a sign is positioned on a particular part of a product.
The first and foremost requirement is a detailed description of the position in the product. An example
of a position trademark is the red colour at the sole of the bottom of Christian Louboutins shoes.

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There is limited literature on position trademarks and even in jurisdictions abroad, the guidelines are in
short supply. In the Indian scenario, a recent development was in Levi Strauss & Co. v. Imperial
Online Services Pvt. Ltd. & Ors.,CS (COMM) 657/2021 & I.A. 16736/2021, where the Delhi High
Court held that Levis had acquired secondary meaning in its ÔArcuate Stitching DesignÕ on its Jeans
due to extensive use spanning over 150 years.
Touch/Texture: When a product has a specific and distinct recognizable structure, the surface of the
product when touched must have a unique texture in order to be granted protection. These types of
marks are felt using the fingertips and include patterns and shapes as well. This is a marketing tactic
companies have adopted in recent times to appeal to visually impaired consumers.
The first texture mark to be registered was when the Ecuadorian Institute of Intellectual Property in
2004, granted protection to a famous beverage and alcohol manufacturer Diageo, exclusive rights
over the surface texture of its Old Parr Scotch whisky bottle.
In the Indian context, the legal position is still at its nascent stage but was first discussed in Louis
Vuitton v Malik (CS (OS) 1825/2003. Louis Vuitton initiated a suit for infringement of its ÒEPI STYLEÓ
trademark and surface pattern before the Delhi High Court. The EPI STYLE is the unique pattern of
the leatherÕs grain on its handbags. The court recognized Louis VuittonÕs long and extensive use of
the EPI pattern since the mid-1980s granted an ex parte interim injunction in their favour.
Taste: When a particular flavour is applied to a product, it is referred to as a taste trademark. The
taste must be inherent to the product itself and must not perform the utilitarian function of the
product. For example- a trademark for the taste of Biryani is not viable since it performs the function
of making the Biryani. Another challenge in the registration of a taste trademark is graphical
representation. The only manner in which a taste can be represented is through written description
which is not yet accepted in India. Moreover, a practical hurdle is that for a consumer to experience a
taste, the product has to be purchased first and it is impossible to taste the product before purchase.
On account of such challenges, taste trademarks in India remain unexplored and there are currently
no registrations for taste throughout the world.

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Intellectual Property Rights (Guru Gobind Singh Indraprastha University)

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Intellectual Property Rights

UNIT-II: Trademarks (The Trademarks Act, 1999)

UNIT-III: Patent (The Patents Act, 1970)

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UNIT-IV: Industrial Design (The Designs Act, 2000)

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UNIT-I: The Copyrights (Indian Copyright Act, 1957)

a. Introduction to Copyright Law

To encourage the development of culture, science and innovation

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b. Brief Introduction to related International Treaties and Conventions

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Original Literary Works:

Case: Zee Telefilms v. Sundial Communications

Issues: Whether A is entitled to the copyright of those concept notes?

Original Dramatic Works:

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Original Musical Works:

Original Artistic Works:

Case: Associated publishers vs Bashyam

Facts: A portrait of Mahatma Gandhi was made based on two photographs.

Case: R.G. Anand vs Delux Films

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Case: Gramophone Co. India v. Super Cassette Industries

RIGHTS OF THE COPYRIGHT HOLDER

1. In the case of original literary, musical, and dramatic work:

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Right to adaptation; and

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d. Authorship and Ownership (s17), Term of Copyright and

Authorship and Ownership in Copyright

In the case of literary or dramatic composition, the author,

However, this provision provided to bound exception:

Assignment of Copyright (Section 18)

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Mode of the assignment agreement

It should be in writing and signed;

Copyright in manuscripts is transferred through testamentary disposal

Right of author to relinquish copyright

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Term copyright in published literary, dramatic, musical, and artistic works

In the case of a cinematograph film, sound recording, photograph, posthumous publications, or

Copyright terms in anonymous and pseudonymous works

Term of Copyright in Posthumous Work

Term of copyright for photographs

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Term of Copyright in Cinematograph Films

Term of copyright in sound recording

Term of Copyright Government works

Copyright terms in works of public ventures

Copyright in international organizationÕs works

Voluntary Licensing: Expanding Copyright Opportunities

Section 30 of the Indian Act addresses the voluntary licensing of copyright.

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Therefore, a license deed should include essential details such as:

1. Duration of the license

Exploring the Spectrum of Voluntary Copyright Licenses

Here are some common categories of voluntary licenses:

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