“Any person desiring to exhibit on television or such other media as may be prescribed, any film which has been sanctioned by the Board under clause (ii) or clause (iii) of sub-section (2), may make an application to the Board in such form and manner as may be prescribed, and the Board may, for this purpose, sanction the film with a separate certificate, after directing the applicant to carry out such excisions or modifications in the film as it may think fit.”
There are a couple of interesting things right off the bat. The Cinematograph Act, of 1952 has never governed television programmes and serials and does not in any form mandate that a Central Board of Film Certification(CBFC) certification is a pre-requisite for exhibiting content. The mandate for any programme (including films) exhibited on cable television to be required to be certified by the CBFC came from the Programme Code under the Cable Television Network Rules, 1994 (CTN Rules). Now, while the CTN Rules were only concerned with ‘cable television networks’, the Cinematograph Bill neither creates any such distinction nor defines ‘television’. Interestingly, Clause 4(3) is only concerned with ‘films’ (which are defined as cinematograph films under the Cinematograph Act) and arguably doesn’t extend to programmes, serials, etc.
Further, unlike Clause 4(1) of the Bill, which mandates CBFC certification for the exhibition of a film, this provision uses the word ‘may’ to suggest that it is in fact not mandatory to obtain certification for films planned to be exhibited on television (which arguably means that barring ‘cable television network’, for all other television forms, there is no obligation to obtain a certificate).
‘Reeling’ in OTTs through the backdoor, again
Along with ‘television’, the government has also left it open to itself to also prescribe any other media which would be subject to this provision. This, arguably and quite possibly, refers to the exhibition of films on OTT platforms. While we are yet to receive any clarity on this and there is no notification including ‘publishers of online curated content’ within this provision, the broad and open-ended language of this provision empowers the government to include any form of media within the fold of this clause.
Two years ago, the Ministry of Electronics & Information Technology (MEITY) came up with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Digital Media Code) under Section 87(2)(zg) of the Information Technology Act, 2000 (IT Act) and extended its application to ‘publishers of online curated content’. Similarly, the Ministry of Information and Broadcasting (MIB) has potentially extended the application of the Cinematograph Act to OTT platforms. The reason for this comparison is that similar to the MEITY not having power under the IT Act to create laws with respect to OTT platforms, so too the MIB does not have the power to extend the requirement for certification to OTT platforms under the Cinematograph Act.
The Cinematograph Bill muddies the waters slightly, because, on the one hand, it authorizes the government to extend its application to OTT platforms, and on the other hand, there is nothing in the Cinematograph Act (even after this Bill) or in the Cinematograph (Certification) Rules, 1983 that provides any basis to enable the extension of the Act to OTT platforms.
This is interesting to say the least, considering the judgment of the Division Bench of Karnataka High Court in Padmanabh Shankar Vs. Union of India & Ors.The Karnataka High Court, having regard to the definitions of ‘film’ and ‘cinematograph’ under the Act (definitions have NOT been changed by the Bill), had held that the Cinematograph Act does not extend or apply to films, serials, etc transmitted or exhibited through the internet.
Fin
Whether the Cinematograph Act will be extended to OTT platforms and if so, how will it play out both legally and practically, remains to be seen. However, with the Government breathing heavily down the necks of OTT players with the Digital Media Code in 2021 (which is currently under challenge), the COTPA Amendment Rules 2023, the Digital Personal Data Protection Bill 2023 and the various Telecom Regulatory Authority of India (TRAI) consultation papers on OTT services, the OTT players aren’t exactly being left a lot of wiggle room or breathing space legally and practically. While it is way too early to predict with some degree of certainty how these developments will impact OTT platforms as well as consumers in the long run, what is clear is that comprehensively regulating the digital sector is on the government’s agenda and it is slowly but surely taking steps towards it.
The legal concept of copyright gives authors, musicians, artists, and other creators protection over their creations. According to the Copyright Act, it is the solely reserved right to carry out or authorize others to carry out specified acts with respect to original literary, dramatic, musical, and artistic works, cinematography films, and sound recordings, including computer programs. For a specific period of time, it grants the holder some exclusive rights to manage the reproduction of works of authorship, including books, music, paintings, songs, and movies. The purpose of copyright is to shield the creator of a work from any unauthorized duplication or commercialization of their work. On one hand copyright grants exclusive rights to the authors and creators whereas on the other hand it sets out some limitations on the rights of the authors and creators.
A fair dealing is a restriction on a copyrighted work owner’s rights made without the author’s consent. If a literary, dramatic, musical, or artistic work is fairly used for research, private study, criticism, or evaluation of that work or any other work, it does not violate the author’s rights. Fair dealing is the authorized copying of a work protected by copyright. The phrase “fair dealing” is not specified elsewhere in copyright law, although courts have frequently evaluated such works and tried to determine what exactly constitutes fair dealing.
Legal provisions for Fair dealing:
Members shall limit limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the Right holder, according to Article 13 of the TRIPS (Trade Related Aspects of Intellectual Property Rights).
According to Article 9(2) of the Berne Convention, legislation or exceptions to exclusive rights to specific extraordinary instances that do not conflict with a regular exploitation of the work and do not unreasonably impair the right holder’s legitimate interests are to be left up to the individual states.This idea has been codified in significant territorial copyright legislations, as all WTO members are required to abide by the TRIPS articles and the Berne Convention on Copyright. The exception of fair dealing is enacted and understood differently in all countries by their individual laws. In India, standard exceptions or defenses to copyright infringement are listed in Section 52 of Copyright Act, 1957.
Origin and Development of Fair Dealing:
Copyright law is fundamentally based on the doctrine of fair dealing. The use of works protected by copyright is allowed without fear of violation. In its original form, the defense of “Fair Dealing” was a doctrine of equity that permitted the use of some copyright-eligible works in cases when it would otherwise have been illegal and would have amounted to copyright infringement. This ideology’s main goal is to prevent the development of the creativity and growth for which it was created, which is prohibited by the dogma. One of the most crucial elements of copyright law is the doctrine, which establishes a distinction between a work’s legal, bona fide fair uses and its malicious, flagrant copies.
Fair dealing was officially acknowledged in imperial copyright law for the first time in the UK Copyright Act of 1911. Three key restrictions on owner rights are provided by the fair dealing provisions: fair dealing for the purposes of non-commercial research or private study; fair dealing for the purposes of criticism or review; and fair dealing for the purposes of news reporting.
The Indian Copyright Act, 1957, which heavily borrows from the UK Copyright law, deals with the notion of fair dealing under Section 52. The defense of fair dealing, which is elaborately incorporated in Section 52 but not elsewhere in the Act, is undefined. A fair use of a literary, dramatic, musical, or artistic work for research, private study, critique, or review, whether of that work or any other work, and for the purpose of reporting current events does not violate the author’s copyright. By adding the phrase “any work,” the Copyright Amendment Act of 2012 has expanded the range of works that can be utilized for private and individual purposes. This Amendment has expanded the application of the fair use rule to cinematography film and musical works.
Doctrine of Fair Dealing:
The term fair dealing has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner.
Whether a person’s use of copyrighted material is ‘fair’ would depend entirely upon the facts and circumstances of a given case. The line between “Fair dealing” and infringement is a thin one. In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court applying basic common sense can decide this. It may however be said that the extracted portion should be such that it does not affect the substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of the copyright owner, it has been interpreted by the courts on a number of occasions by judging the economic right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the monetary impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing. Hubbard v Vosper, [1972] 2 Q.B. 84, is a leading English copyright law case on the defence of fair dealing. The Church of Scientology sued a former member, Cyril Vosper, for copyright infringement due to the publication of a book, The Mind Benders, criticizing Scientology. The Church of Scientology alleged that the books contained material copied from books and documents written by L. Ron Hubbard, as well as containing confidential information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the Court of Appeal deciding unanimously in his favour. The judgment given by Lord Denning clarified the scope and content of the fair dealing defence.
Doctrine of Fair Use:
Fair use in the United States is incorporated from Justice Story’s 1841 Judgment in Folsom vs. Marsh 9. F.Cas. 342, which was based on the English fair dealing case law. Congress codified fair use in the Copyright Act of 1976. Section 107 provides that fair use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use). Scholarship and research is not an infringement of copyright. Section 107 then lists four factors that are to be included in the determination of whether the use made of a work in any particular case is a fair use. In other words, Section 107 sets forth nonexclusive purposes and non-exclusive factors for fair use.
The Four Factors of determining Fair Use is as follows:
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole and
The effect of the use upon the potential market for or value of the copyrighted work.
The purpose and character of use:
According to the Fair Use legislation itself, nonprofit educational uses are typically preferred over commercial ones. Additionally, the statute expressly identifies a number of uses that are particularly eligible for fair use, including news reporting, criticism, commentary, teaching, scholarship, and research. But not all charitable educational purposes are appropriate. A fair use determination is based on the application of all four criteria, not just the intent. ‘Transformative’ uses or those that are not merely replicas are likewise valued by courts. When the copyrighted work is changed into something new or has a new purpose or significance, such as when quotations are used in papers or bits of a work are combined to create a multimedia product for your own instructional requirements, fair use is more likely to be recognized..
2. The nature of the copyrighted work:
This component centers on the work being used, and depending on the attributes or features of the work, the law permits a greater or lesser scope of fair use. For instance, the unpublished status of a piece of work, like a manuscript or private letter, can be used against it in a fair use determination. According to the courts, copyright holders should have the authority to choose the details around “first publication.” It is typically discouraged and improbable that a use of a work that is commercially available but intended just for the educational market will be regarded as fair. Additionally, since courts frequently give creative works more protection, fair use generally pertains to nonfiction rather than fiction. In general, courts are more protective of art, music, poetry, and literary works.
3. The amount or substantiality of the portion used:
Although the law does not specify a specific quantity cap, it is generally true that the more you consume, the less probable it is that you are making a fair use. Usually, the amount used is assessed in relation to the length of the full original and in light of the amount required to fulfill the intended purpose. The precise original, however, is not often immediately apparent. A book chapter may only make up a small percentage of the overall work, but if the same material were to be published elsewhere as an article or essay, it would be regarded as the full piece. Additionally, the quality of the work is gauged.
Courts have ruled that even uses of small amounts may be excessive if they take the ‘Main content of the work’. For example, a short clip from a motion picture may usually be acceptable, but not if it showcases the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “Exclusive scoop”. On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. On the other hand, a court has ruled that a ‘thumbnail’ or low-resolution version of an image is a lesser amount. Such a version of an image might adequately serve educational or research purposes.
4. The effect of use on the potential market for a value of the work:
Perhaps more challenging than the other three aspects is the impact on the market. This factor essentially indicates that if you could have afforded to buy or obtain a license for the copyrighted material, that fact weighs against the determination of fair use. You might just need to conduct a quick market inquiry to see if the work is easily available for purchase or license in order to assess this element. If you are employing a sizable chunk of a book that is for sale at a standard market price, the work might be reasonably accessible. Market effect may be challenging to demonstrate if your goal is to conduct research or academic work. If your goal is commercial, it can be simpler to demonstrate a bad market effects. Occasional quotes or copies may not have a negative impact on the market, but copies of full software works and movies can directly affect the markets for those products.
Fair Dealing v Fair Use
Regarding the ideas of fair use and fair dealing, there is a small discrepancy in wording. While English and Indian law use the word “Fair Dealing,” US law uses the term “Fair Use.” The word “fair use,” which is used in the US but not defined by the US Copyright Act, is generally accepted to be open to interpretation by courts on a case-by-case basis. Due to the absence of a statutory definition, fair use is determined in the United States based on Justice Story’s four-factor test established in Folsom v. Marsh, where it was stated: “Look to the nature and objects of the selections made, the context in which they were made, and the context in which they are being used.
In common law countries including Great Britain, Canada, Australia, India, and New Zealand, copyright regulations provide an exception for fair dealing from copyright infringement. According to the copyright laws in these countries, fair use of a copyrighted work does not constitute infringement if it is expressly permitted. If a work is copied for a purpose other than one that is permitted by law, it cannot be considered fair use, regardless of the copier’s original intent.
The availability of regulatory advice on how to assess the fairness of a transaction or use is another area of disagreement. Due to the lack of statutory definitions or guidelines describing how fairness is to be assessed in fair dealing laws, it is up to the courts to find the best method for judging the fairness of real transactions with protected works.
Fair Dealing under Indian Copyright Law:
Each nation has its own rules that govern how the exception of fair dealing is applied and understood. In India, Section 52 of the Copyright Act, 1957 lists common exceptions or defenses to copyright infringement. The fair dealing clause stipulates that in order for a transaction to be considered “fair,” the purposes must fit under the legally recognized categories of private use, research, criticism, and review.
The doctrine of equity has its origins in the exception of fair dealing, which, to put it simply, authorizes unauthorized use of a copyrighted work based on the facts and circumstances of a particular case. Fair dealing is not defined in the Act. It distinguishes between a true, lawful fair use of a work and a malicious blatant replica of the work. The court explained the purpose of Section 52 in Wiley Eastern Ltd. v. IIM and noted that it is to defend the freedom of expression (through research, private study, criticism or review, or reporting of current events) guaranteed by Article 19 (1) of the Indian Constitution.
Lord Denning, while attempting to form a definition in the case of Hubbard v. Vosper, CA 1971 [1972] 2 WLR 389 said: It is impossible to define what is ‘fair dealing’, It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them, other considerations may come to mind also. But, after all is said and done, it must be a matter of impression.
India does not yet have a general guideline or a collection of rules that specify how much work can be appropriated without the creator’s consent and still fall within the exemption of fair dealing. However, there are several rules on which the court must base its decision, with the public interest being one of the most important factors. The decision in this case is primarily left to the Court’s discretion.
The Indian courts have endorsed several criteria that may be more or less important in fair dealing situations and which are not supplied by the Indian copyright statute as they have evaluated the doctrine of fair dealing, drawing mostly from UK and US methods. The following three elements have historically been stated and used by the courts while making decisions.
The Amount and substantiality of the portion used:
In Blackwood case, AIR 1959 Mad 410 which involved the reproduction of the work in the form of guides, the court rightfully held that the alleged infringer’s intention is an important but not a decisive factor in determining whether the work in question was copied so substantially that the copying would amount to negative ‘fairness’. The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, AIR 1954 All 570 where the dispute was based on the use of certain quotations from a work. The Court interpreted the fact of acknowledgement by the authors of the plaintiff’s material to mean that if the authors had made any other use of the plaintiff’s book in compiling their own book, they would have acknowledged it; thus, the copying was held not to be a substantial taking.
Purpose and Character of the use:
The next consideration relates to the purpose and character of the use. Section 52 of the Indian Copyright Act also sets out an exhaustive list various purposes that fall under the domain of fair dealing. If the purpose of the reproduction is not one of those enumerated in the statute the question of fair dealing would not arise. The major purposes which the act enumerates are: private study, research, criticism and review. In V Ramaiah v K Lakshmaiah, wherein the question was, whether the Act of the respondent in writing the guide is an infringement of the copyright of the owner, the courts were cautioned to keep in mind that defendants pleading fair dealing should not have used the work without out making any independent contribution, in other words, the work must have been transformative.1989 (9) PTC 137.
The Court in Chancellor masters, which again concerned copying for the purpose of guide books, had laid down that while dealing with the issue of fair dealing, a Court should ask whether the purpose served by the subsequent work is substantially different (or is the same) from the purpose served by the prior work. To be called trans-formative, the subsequent work must be different in character, it must not be a mere substitute.
CONCLUSION:
It is clear from the foregoing that fair dealing is a crucial and significant component of the copyright law. It is also obvious that the idea of fair dealing is not well developed or advanced in India, but thanks to court rulings and other amendments, the doctrine has gained a firm footing in our country’s copyright laws, is developing further, and its application is broadening with each new ruling.
The Doctrine is required to achieve harmony or balance between the Author’s competing monopolistic interests and the general society’s creative objectives. The Doctrine of Fair Dealing encourages creativity in society, which has resulted in a vast range of innovative and amazing achievements that could not have been conceivable without its existence. Thus, in order to both promote and protect such creative works, the Doctrine is crucial and significant to both the development of creativity as well as the progress and globalization of copyright law.
Geographical indications (GIs) are intellectual property (IP) rights that serve to identify a product that originates from a specific geographical area and that has a quality, reputation, or other characteristics that are essentially attributable to its geographical origin. A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as originating in a given place. For example, Blue pottery of Jaipur
Why do we need GIs?
provide information to consumer about quality: ordinary shoppers may choose certain products based to origin (may taste better than other products)
provide added value to producers: customers may be willing to pay more for GI protected stuff and gain competitive advantage
protect producers from unfair competition: GI holder has the right to stop those from using the name if they do not follow the applicable standards (e.g. Ducheling tea)
agricultural support and policy is changing shape
benefits rural community and developing countries: provide market value and therefore more countries have started to use GIs to increase competitiveness and stimulate rural communities, thus increasing livelihood of producers and farmers. Also case in developed countries as they offer primary source of income
increasing competition in the EU market (e.g. wines)
Protection of GIs in the global IP system:
Paris Convention for the Protection of Industrial Property, 1883
Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods, 1891
Lisbon Agreement for the Protection of Appellations of origin and their International Registration, 1958
TRIPS Agreement 199
How are GIs protected?
Unfair competition and passing off (preventing one trader from misrepresenting goods or services being the goods and services of another) how some countries regulate
Collective and certification marks (or guarantee marks Australia, Canada, USA). May be used by more than 1 person, but producers must abide by standards and regulations set out by the owner
Laws focusing on business practices: e.g. consumer protection laws, indirectly protect GIs as they prevent certain acts that prevent use of GI
Sui generis system: system which is exclusive to them
International laws do not specify how GIs should be protected
Countries can provide more than one approach to protect GIs
A trade mark is a mark applied to any product or service that sets one producer’s products or services apart from similar products made by another company. Any product or service with a trade mark on it gives the buyer the idea that it has that quality.
Definition:
Trade Mark Sec 2(1)(zb) Mark capable of represented graphically and capable of distinguishing goods/services of one person from those of others. It shows a connection between goods and person.
Procedure for Registration of Trade Mark
label notice
Under Section 3 (the “Controller General of Patent, Design and Trade Marks”), the government established the Trade Marks Registry, where applications for trademarks may be filed. Several classes of goods or services are eligible for trademark grants. The registration of a trademark serves as prima facie proof that all legal requirements have been duly met. At the Trade Mark Registry’s head office, a register of trademarks is kept. Any trade mark may be submitted for registration under Section 18 by the individual claiming ownership. These applications may be turned down for one of two reasons: Absolute Justifications for Rejection According to Section 9, the Registrar may reject a trademark application on the following grounds in its exclusive discretion:
If mark is devoid of any distinctive character, e.g. where any character of any language or any shape has not been especially designed or visible. Any mark which shows just kind, quality, quantity or intended purpose of any goods, e.g. trademark of any goods can’t be “500 gram” Mark consisting of marks or indications which are customary in current language, e.g. OMG (abbreviation of Oh My God) cannot be trade mark However where trademark which bears distinctive character because of its use, or is well-known to public is allowed, e.g. “Sugar-free” mark shows just quality but still allowed because this product is well-known to public If a mark is capable to deceive or cause confusion to public, or hurt religious susceptibility, or is obscene, it will not be registered Mark consisting of shape of natural goods (e.g. Neem leaf) or such shape which is necessary to obtain a given technical result shall not be registered.
Grounds for Rejection
Sec 11 (as amended by Trade Mark (Amendment) Act, 2010) provides that Registrar will reject the trademark application on relative grounds which are: Where mark is identical and affixed to similar goods or service, e.g. Lux washing powder Where mark is similar and affixed to identical or similar goods or service, e.g. Nirama washing powder (Original is Nirma) Where mark is identical or similar and affixed to goods which are not similar, if such mark is well-known to public e.g. Lux shoes Where mark’s use is prevented by law of passing-off or copyright However, Registrar shall not reject any application for trade mark on the grounds specified in point c and d supra, unless an objection is raised by proprietor of earlier trade mark. Sec 14 provides that if any mark falsely suggests a connection with a living person or a person who died within 20 years prior to application of trade mark, then Registrar can demand consent of such person or his legal representative.
Registered Trade Mark
According to Section 20, the Registrar must publish a trade mark application whenever it is submitted to him in the manner specified. Within three months of the date the application was published, anyone may object. Trademark is granted if application has not faced objection or if opposition has been rejected in the applicant’s favour. Trademarks have a 10-year term with the option to periodically renew them for additional 10-year terms.
The Registrar may delete a trade mark if it is not renewed after 10 years, however it may be reinstated within a year of the removal date. The Registrar may permit a mark to be registered as an associated trade mark when the owner of a trade mark applies for another mark that is the same as or similar to an earlier registered trade mark. Initial registration is prima facie evidence of its legality; nevertheless, the owner of a registered mark cannot intervene if someone is using a mark that is confusingly similar to one that was registered earlier. Owners of unregistered marks may only bring passing-off claims and not infringement claims. In general, the order of use determines who owns a mark. Priority can be established simply by a prior sale of the item.
Infringement of Registered Trade Mark
Sec 29 provides that if a person who is not registered proprietor of mark uses a mark which is identical or deceptively similar to registered trade mark, it is called infringement. Further, registered trade mark is infringed if:
Mark is identical and is used in respect of similar goods/services, or
Mark is similar and is used in identical or similar goods/services, or
Mark is identical and is used in respect of identical goods, and It is likely to cause confusion on the part of public. Further, following action is also called infringement;
Mark is identical or similar to registered trade mark and used in respect of goods which are not similar,
Using someone else’s trade mark as his trade name as dealing with similar goods.
Affixing someone else’s trade mark to goods or packing or using such mark in business papers or advertisements.
What is Not Infringement of Trade Mark:
Where mark is used with honest business practice without taking unfair advantage, it is not deemed to be infringement. Following acts are not infringement:
If trade mark is used to indicate kind, quality or quantity etc of any goods/service.
If trade mark was registered subject to certain conditions.
Where mark is used in such types of goods/services for which owner of that mark had impliedly consented to its use.
Registered trade mark can be used in relation to parts and accessories to other goods/services.
Offence and Penalties:
Following penalty provisions are prescribed under this Act:
Penalty of imprisonment of 6 months to 3 years and fine upto Rs 2 lakh for applying false trade mark or false trade description.
Any removal or sale of cotton yarn or cotton thread which are not marked in accordance with provisions of this Act is liable to forfeited.
Any person who falsely represents a trade mark to be registered trade mark is punished under this Act.
In case of offence is committed by Company, every person in charge of the Company, as well as the Company shall be deemed to be liable. Where such contravention is committed with consent or with negligence on the part or director, manager or secretary, they shall also be deemed to be guilty.
The present Intellectual Property Rights (IPR) system is empowering commercialization of seed improvement, monoculture, the security of new plant assortments, microorganisms, and hereditarily changed living beings. As a result, our rich biogenetic decent variety is being dissolved irreversibly. We should discover a way to make an elective methodology that will acquire harmony between the formal Intellectual Property (IP) framework and maintainable parts of biodiversity.
Associations that rely upon allowing in giving approvals pharmaceutical things ought to be instructed about the patent system so they can deal sensible and balanced approving understandings. Small and Medium Enterprises in the medical business may utilize the abundance of data contained in patent reports as essential info to their Research & Development, to get thoughts for additional development, to guarantee their “opportunity to work” or to discover.
Present-day structures, plant combination security, is normally less relevant to generally Small and Medium Enterprises in the medicinal branch. However, this could vary depending upon the item offering and technique of every association. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) gives for least standards and principles in regard to the accompanying classes of IPR.
Meaning of the Biotechnology
Biotechnology is an innovation that uses natural frameworks, living creatures or parts of this to create or make various items.
With the improvement of a hereditary building during the 1970s, inquire about in biotechnology (and other related zones, for example, medication, science and so forth.) grew quickly on account of the new probability to make changes in the life forms’ hereditary material (DNA).
Today, biotechnology covers a wide range of controls (eg. hereditary qualities, natural chemistry, atomic science, and so forth). New innovations and items are built up each year inside the regions of medication (advancement of new meds and treatments), farming (improvement of hereditarily adjusted plants, biofuels, organic treatment) or modern biotechnology (generation of synthetic compounds, paper, materials, and nourishment).
Biotechnology helps living beings to fight against the illness. At present, there are in excess of 250 biotechnology human services items and antibodies accessible to patients, numerous for already untreatable maladies. More than 13.3 million ranchers around the globe utilize rural biotechnology to build yields, keep harm from creepy crawlies and bothers and lessen cultivating effect on the earth
Uses of the Biotechnology
Ageing to Produce Foods
Ageing may be the eldest biotechnological revelation. More than 10,000 years prior to humanity was delivering wine, lager, vinegar and bread utilizing microorganisms, principally yeast. Yoghurt was created by lactic corrosive microscopic organisms in milk and shape was utilized to deliver cheddar. These procedures are still being used today for the creation of present-day nourishments.
Modern Fermentation
In 1897 the disclosure that compounds from yeast can change over sugar to liquor lead to mechanical procedures for synthetics, for example, butanol, CH3)2CO and glycerol. Ageing procedures are still being used today in numerous cutting edge biotech associations, regularly for the generation of chemicals to be utilized in pharmaceutical procedures, natural remediation, and other modern procedures.
Nourishment Preservation
Drying, salting and freezing sustenances to thwart disintegration by microorganisms were penetrated at some point before anyone genuinely understood why they worked or even totally acknowledged what made the sustenance ruin regardless.
Isolates
The act of isolating to forestall the spread of ailment was set up sometime before the starting points of infection were known. In any case, it exhibits early acknowledgement that sickness could be passed from a tainted individual to another sound person, who might then start to have manifestations of the ailment.
Specific Plant Breeding
Harvest improvement, by choosing seeds from the best or most advantageous plants, to get another yield having the most attractive qualities, is a type of early harvest innovation. Ranchers discovered that utilizing just the seeds from the best plants would inevitably upgrade and reinforce the ideal qualities in resulting crops. In the mid-1860s, Gregor Mendel’s investigations on inheritable qualities of peas improved our comprehension of hereditary legacy and lead to practices of cross-reproducing (presently known as hybridization).
Intellectual Property Rights & Biotechnology
Advancements of the biotechnology have been underlined by the various departments of the biotechnology. Interestingly, most creating nations don’t have solid IPR systems and achievement instalments. Licensed innovation (IP) is key to the biotechnology business, and carries with it a measurement, encouraging community-oriented action, regardless of whether it is a medication disclosure or clinical or advertisement related preliminaries.
Basically, collective movement is the cooperative energy between India’s capacity to give conditions to explore, clinical preliminaries and advancement, innovative lead and capital accessibility in created countries. The fruitful interpretation of these cooperative energies into economically reasonable applications and attractive items basically relies upon the similarity of guidelines that manage the enlistment and insurance of intellectual property, beginning from the shared procedure.
Importance of Biotechnology
The Biological Diversity Act, 2002 (hence referred to as the “BD Act”) establishes a system for access to genetic resources and benefit-sharing derived from them. Obtaining IPRs from the use of biological resources in India is subject to authorisation by the National Biodiversity Authority, according to Section 6 of the BD Act, which took effect on July 1st, 2004. (hereinafter referred to as NBA).
It is considered to be a science relating to life and that includes the utilization of innovation, drugs, and various valuable things. Present-day use of the term incorporates hereditary building just as tissue culture and cell advance. The idea envelops a wide scope of techniques for changing living beings as per human purposes – returning to the training of creatures, development of plants, and “upgrades” to these through reproducing plans that utilize counterfeit determination and hybridization.
For the learning of basic normal methods, the ability to isolate and escalate a particular quality from the enormous number in a living being’s genome (the finished arrangement of qualities or hereditary material present in a cell or life form). Doubtlessly, the closeness of complete genome movements for an expanding number of living things vows to change the way by which these sciences – and the undertakings subject to them.
How Intellectual Property Rights can Protect Biotechnology?
Innovation is safeguarded by intellectual property rights. In biotechnology, the inventor may also be protected by intellectual property rights, but in order to do so, one must demonstrate the uniqueness and inventiveness of the invention. The innovation is discussed in Section 2(1)(j) of the Patents Act of 1970. It states that an invention must be novel in order for it to be granted and protected.
Here is one case of how protected innovation rights work in the medicinal services industry. Government assurance permits organizations to utilize the ® image with a trademark name to show that it has an enrolled trademark and that nobody else can utilize that name. More than one organization may sell a similar substance compound, which implies a similar medication, however, just one organization can legitimately utilize the trademarked name to advertise that medication.
For instance, while numerous organizations sell the energizer tranquillize fluoxetine hydrochloride, just Eli Lilly can call it Prozac. In like manner, no one but Roche can utilize the trademarked name Tamiflu to showcase a medication called Oseltamivir that is intended to forestall and treat flu. Trademarks aren’t simply utilized with drugs, in any case; they’re additionally utilized with medical clinic names, doctor practice names and different elements with particular marking. This is vital to organizations right now, where marking, promoting and pictures are focal parts of business tasks and vital situating.
As another instance, biotechnology organizations use licenses to secure their protected innovation rights to medicate conveyance gadgets. AstraZeneca possesses the licensed innovation rights to the Symbicort Turbuhaler, which is the medication budesonide/formoterol in a dry powder inhaler for the support treatment of asthma and COPD. Other human services organizations use licenses to secure their protected innovation rights to gadgets, for example, braces, prostheses, vision testing machines and the PC frameworks utilized in social insurance the executives.
Indian Pharmaceutical Industry
The Trademark Law Treaty (TLT) and the Patent Law Treaty (PLT) have come a long way since they were practically nonexistent before 1970 and are now a significant provider of goods and services for the human services sector, covering around 95 cents of the country’s medical needs. The industry currently holds the top spot among businesses based on science and technology and with sizable operating capacity in the complex industry of pharmaceutical development and production. Regarding innovation, quality, and the range of manufactured medications, developing nations hold very high ranks.
From straightforward migraine pills to modern anti-toxins and complex cardiovascular mixes, pretty much every sort of medication is presently made domestically. Worldwide organizations related to this area have invigorated, helped and initiated this dynamic advancement in the previous years and assisted with putting developing countries on the medical guide to the universe. The medical segment developing is exceptionally divided into enlisted elements with serious value rivalry and government value control. It has extended radically over the most recent two decades.
Governments’ Role in Biotechnology
The innovation strategy of the legislature and the Vision Statement on Biotechnology has been given by DBT to give a system and give vital heading to various divisions to quicken the pace of improvement of biotechnology in developing countries. This arrangement further intends to chalk out the way of progress in divisions, for example, farming and nourishment biotechnology, modern biotechnology, restorative and therapeutic drug, demonstrative biotechnology, bio-building, nanotechnology, clinical biotechnology, condition and intellectual property and, patent law, copyright law, trademark law, design law etc.
Licensing Biotechnology Inventions in India
The IPO considers biotechnological developments to be identified with living elements of characteristic starting point, such as creatures, people including parts thereof, living elements of fake starting point, such as small scale life forms, immunisations, transgenic animals and plants, organic materials, such as DNA, plasmids, qualities, vector, tissues, cells, replication, forms identifying with living elements, forms relating to organic material, s, In accordance with Section 3 of the Indian Patent (Amendment) Act 2005, the accompanying biotechnological advancements are not regarded as patentable inventions.
Living elements of the characteristic root, for example, creatures, plants, in entire or any parts thereof, plant assortments, seeds, species, qualities also, smaller scale living beings.
Any procedure of assembling or generation identifying with such living substances.
Any strategy for treatment, for example, therapeutic, careful, therapeutic, prophylactic indicative also, remedial, of people or creatures or on the other hand different medications of comparable nature.
Any living substance of fake beginning, for example, transgenic creatures and plants, or any part thereof.
Natural materials, for example, organs, tissues, cells, infections and all the way toward getting them ready. Basically natural procedures for the creation of plants and creatures, for example, a technique for intersection or reproducing.
Rights of Plant Varieties
PBRs are used to protect new plant varieties by granting limited commercial rights to promote another variety or its regeneration material for 20 to 25 years. The selection must be unique, specific, consistent, and stable.
This insurance prevents anyone from expanding or marketing the collection without the owner’s permission. However, there may be exceptions made for research and the use of seed saved by a rancher for replanting. According to the International Union for the Protection of New Varieties of Plants, the protection of Genera and a few designated species is covered in section 3 of the plant variety protection system.
Patents
A patent is a limited legal right granted to an inventor to prevent anybody else from producing, using, selling, or offering to sell the invention in the country that granted the patent right, as well as from bringing it into that country. Licenses in horticultural biotechnology may cover things like plant modification methods, vectors, qualities, and more. Furthermore, transgenic plants or animals are allowed in countries that authorise the protection of higher living beings. The inventions are protected by Section 3.5 of the Patents Act of 1970..
Conclusion
Obligations and resources would provide a crucial foundation for the development of skilled and effective medical use for the creation of developing nations. The medical sector in emerging nations will make sure that the vast population of this sub-landmass has access to basic pharmaceuticals at affordable prices and will also continue to provide employment for a sizable number of people.
The core curriculum should be designed to ensure that the newly certified drug specialist has the knowledge and skills necessary to start practising skillfully in a variety of contexts, including network and emergency clinic drug stores and the pharmaceutical business. Then, each person who does medicine should have a long-term commitment to continue with capable progress. master
To create and promote a model educational programme, it may be necessary to establish national schools of drug stores. Medication authorities need to learn how to investigate medication officials and conduct results checks. By using suitable preparation and compensation, drugstore calling should manage the potential for drugstore practise at system and crisis facility calm stores. Structures of Medicine into a regular game plan of prescription of things to seek universally inclusive human administrations in addition to, providing human administrations for all – especially for the welfare of the poor.
India has cruised through the venture from a condition of an all-out absence of IP attention to the current situation with the proactive quest for IP in the outskirts territories of innovation. Having released India’s IT potential in the later past, the opportunity has now come to bridle the colossal qualities and energies of the nations in the Biotechnology Sector.
A trade mark (popularly known as brand name in layman’s language) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another. It is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. Its origin dates back to ancient times, when craftsmen reproduced their signatures, or “marks” on their artistic or utilitarian products. Over the years these marks evolved into today’s system of trade mark registration and protection. The system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trade mark, meets their needs.
Definition:
As stated above, the definition of “trade mark” under Section 2(1)(zb) has been enlarged to mean a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from others and may include shape of goods, their packaging and combination of colours and covers both goods and services.“Mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”. [Section 2(1)(m)].
Right To Exclusive Use The registration of a trademark shall give the registered proprietor of the trademark the exclusive right to the use of the trademark in relation to the goods or services in respect of which the trademark is registered as per section 28(1) of the Act. In other words after the registration of a trademark no one other than its registered proprietor or permitted user, is entitled to use the said trademark in relation to the goods or services in respect of which the trademark is registered.
Registration To Be Prima Facie Evidence Of Validity As per section 31 of the Act, the original registration of the trademark and of all subsequent assignments and transmissions of the trademark shall be prima facie evidence of the validity thereof in all legal proceedings relating to a trademark registered under the Act.
Right To Sue For Infringement If a mark that is identical with, or deceptively similar to a registered trademark is used by a person other than the registered proprietor or a permitted user, in the course of trade, in relation to goods or services in respect of which the trademark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trademark, such person is said to have infringed the trademark according to section 29(1) of the Act.
The registered proprietor of the trademark has the exclusive right to sue for infringement of the trademark as per section 28(1) of the Act. Whereas per Section 27 (1) of the Act, no person shall have the right to sue for the infringement of an unregistered trademark. In a suit for infringement
In a suit for infringement of a trademark, the court could grant reliefs by way of an injunction order restraining the person who infringes the trademark from using the trademark and could also order the person who infringes the trademark to pay damages to the proprietor of the trademark for such infringement, according to section 135(1) of the Act.
The proprietor of a trademark has the option to register the same with the Registrar of Trademarks as per the provisions of the Act. Although registration is not mandatory, a registered trademark has certain advantages as opposed to an unregistered trademark. Thus, the effects of registration and non-registration of trademarks shall be discussed hereunder:
POSITION OF UNREGISTERED TRADE MARK
An unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concern. Earlier such an assignment or transmission without goodwill used to be on a different footing. Section 39 of Trade Marks Act, 1999 has simplified the provisions in relation to assignment of unregistered trade mark without goodwill. It lays down that an unregistered trade mark may also be assigned with or without goodwill. Three conditions in Section 38(2) of Trade and Merchandise Marks Act, 1958 which were applicable on assignment of a trade mark without goodwill have been abrogated. Now, both unregistered and registered trade mark are subject to same conditions stated in Section 42, wherein such an assignee is required to apply to the Registrar within six months extendable by three months for directions with respect to advertisement. The assignee must issue the advertisement as directed for assignment to take effect, as the two limbs are cumulative.
Effect of non-use of Trademark:-
Trademark registration helps to establish an ownership’s to protect brand, logo of an entity or person. It help to distinguish your goods and services from other goods and services in the market. Result of Non-Use on Trademark both in India as well as in USA the main effect of non-use is removal of the trademark from the trademark registry. However, sometimes new goods or services are launched to the market using trademarks which have not been re-registered or which have not been used for a very long period of time. In such cases, most of the trademark proprietors keep quiet about the new trademark which infringes their existing mark because of the fear of the new user attacking the trademark on the ground of non-use and in such a case it would result in the trademark being completely removed from the registry. In India, rectification on the ground of non-use arises usually in the course of opposition proceedings or infringement action as a counterblast. Where the proprietor has not used the mark for more than five years and has not taken any steps to use it may tend not to object to the registration of similar marks by others or launch infringement proceedings.
The Hon’ble Supreme Court in the Kabushiki Kaisha Toshiba v. TOSIBA Appliances (2008) held that “The intention to use a trade mark sought to be registered must be genuine and real.” The division bench further explained that “when a trade mark is registered, it confers a valuable right. It seeks to distinguish the goods made by one person from those made by another. The person, therefore, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same.”
Recently in Proctor & Gamble Co. & Anr v. Shipra Laboratories (November, 2011), the Delhi High Court held that it is not in dispute that the defendant has been using the trade mark SAFE GUARD for sale of antiseptic creams. There is practically no difference between the trade mark SAFEGUARD and SAFE GUARD since no person is likely to notice the space between the words SAFE and GUARD…
The Supreme Court in Ramdev Food Products (P) Ltd. v. Arvind Bhai Rambai Patel, 2006 (8) SCC 726, held that a trade mark is the property of the manufacturer. The purpose of a trade mark is to establish a connection between the goods and the source thereof which would suggest the quality of goods. If the trade mark is registered, indisputably the use thereof by a person who is not otherwise authorised to do so would constitute infringement.
In M/s J K Oil Mills v. M/s Adani Wilmar Ltd., 2010 (42) PTC 639 (Del.), the Delhi High Court held that in order to constitute infringement under the provisions of Section 29 of the Trade Marks Act, it would be necessary to show that impugned trade mark (label) is identical or deceptively similar to the registered trade necessary to show that impugned trade mark (label) is identical or deceptively similar to the registered trade the impugned mark/label in respect of the goods and services which are not similar to those in respect of which the trade mark is registered.
Is the registration of a trademark compulsory?
No.Registration of a trademark is not compulsory. However, the registration is the prima facie evidence of the proprietorship of the trademark under registration.
Conclusion
A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it or to authorize another to use it in return for payment. Accordingly, both registered as well as unregistered trademarks are protectable in India by way of an infringement or passing off action in the court of law. The registration of a trade mark confers on the registered proprietor of the trade mark the exclusive right to use the trade mark in relation to the goods or services in respect of which the trade mark is registered.While registration of a trade mark is not compulsory, it offers better legal protection for an action for infringement
The fundamental idea behind intellectual property rights is to safeguard human creations just like physical properties are protected. Theoretical understanding of intellectual property rights is essential for comprehending the rights granted and the justification for them. It’s interesting to note that although being a subset of intellectual property rights, trade secret law is very different from other intellectual properties.
This area of intellectual property exclusively deals with wrongfulness that is assessed by reference to independent legal rules and focuses primarily on specific obligations. Thus, trade secret law makes use of intellectual property theory. This article will provide a thorough analysis of the many trade secret protection ideas that have been developed by different philosophers with a purpose and an end in mind. The five theories covered in this article are;
The natural rights theory has been constructed on the basis of John Locke’s idea.
The utilitarian theory is based on the Benthamite ideal of “the greatest good for the greatest number.”
The deterrence theory supports morality.
The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights.
The personhood theory, which was propounded by Kant and Hegel.
The utilitarian theory is based on the Benthamite ideal of “the greatest good for the greatest number.” The deterrence theory supports morality. The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights. The personhood theory, which was propounded by Kant and Hegel.
The utilitarian institution proposes that the creators of intellectual property must be given adequate incentive and so it is also known as the incentive theory. Bentham opined that trade barriers to foreign imports restrict the increase of trade and commerce of a nation. He applied this concept with the intellectual property rights and believed that the creator must be given absolute privilege in order to recover the amount invested during the inventive process.
A utilitarian institution is one that benefits society. Act utilitarianism is a utilitarian ethical theory that holds that a person’s action is ethically good if and only if it results in the best outcomes in that particular circumstance. The foundation of all utilitarian theories is the principle of utility, which is best described by Jeremy Bentham’s phrase, “the greatest happiness for the greatest number.” Act utilitarianism is built on this premise. According to the article, the existence of intellectual property laws benefits society overall. The economic success of the nations will be used to judge its validity.
This idea, which is supported by economists like Bentham and Mill, makes the assumption that any policy should aim to provide the greatest good for the largest number of people. Utilitarian justifications, however, can be used to support or refute claims of intellectual property rights. The utility gains from greater innovation incentives must be compared to the costs of monopolization and their reduced dispersion. The issue then emerges since it is impossible to compare the advantages to the losses incurred.
Such theories have never been as effective as we would have thought. The economists have a complaint. They contend that the development of a monopoly right occurs when exclusive rights are granted to intellectual property. A market that is totally competitive contrasts monopoly. Monopoly will lead to market crushing if it is unchecked. Whenever the law gives an exclusive right to the innovator, the right holder is not enabled to control the problem. There are so many ways of resolving a problem. That means there is no intellectual property law which prohibits other innovators from innovating a solution to the same problem.
Conclusion:
The society gains from the development and growth as and when an individual produces a product or there is technological innovation inside a community. Since this development contributes to and makes society happier as a whole, it is important to support and encourage this kind of invention and production. Giving the inventor exclusive rights will motivate him because he has worked hard to uplift society and bring joy to as many people as possible. This will not only inspire him to work harder, but it will also give him the confidence that he and his contributions are regarded and valued as they ought to be. Therefore, it is expected that the government or administration will give these rights and acknowledge their accomplishments.
However, while creating and designing the work, the cost of production might be too high. So, the incentive given to the creator might not be sufficient enough to cover the costs incurred. This might discourage the creator as well, thus, preventing him to further experiment and produce
In order to provide for the establishment of an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants it has been considered necessary to recognize and to protect the rights of the farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The Govt. of India enacted “The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001” adopting sui generis system. Indian legislation is not only in conformity with International Union for the Protection of New Varieties of Plants (UPOV), 1978, but also have sufficient provisions to protect the interests of public sector breeding institutions and the farmers. The legislation recognizes the contributions of both commercial plant breeders and farmers in plant breeding activity and also provides to implement TRIPs in a way that supports the specific socio-economic interests of all the stakeholders including private, public sectors and research institutions, as well as resource-constrained farmers.
Objectives of the PPV & FR Act, 2001
To establish an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
To recognize and protect the rights of farmers in respect of their contributions made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.
To accelerate agricultural development in the country, protect plant breeders’ rights; stimulate investment for research and development both in public & private sector for the development new of plant varieties.
Facilitate the growth of seed industry in the country which will ensure the availability of high quality seeds and planting material to the farmers.
Rights under the Act
Breeders’ Rights : Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights.
Researchers’ Rights : Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.
Farmers’ Rights
A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety;
Farmers variety can also be registered as an extant variety;
A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;
Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants;
There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001 and
Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.
Implementation of the Act
To implement the provisions of the Act the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture and Farmers Welfare established the Protection of Plant Varieties and Farmers’ Rights Authority on 11″ November, 2005. The Chairperson is the Chief Executive of the Authority. Besides the Chairperson, the Authority has 15 members, as notified by the Government of India (GOI). Eight of them are ex-officio members representing various Departments/ Ministries, three from SAUs and the State Governments, one representative each for farmers, tribal organization, seed industry and women organization associated with agricultural activities are nominated by the Central Government. The Registrar General is the ex-officio Member Secretary of the Authority.
General Functions of the Authority
Registration of new plant varieties, essentially derived varieties (EDV), extant varieties;
Developing DUS (Distinctiveness, Uniformity and Stability) test guidelines for new plant species;
Developing characterization and documentation of varieties registered;
Compulsory cataloging facilities for all variety of plants;
Documentation, indexing and cataloguing of farmers’ varieties;
Recognizing and rewarding farmers, community of farmers, particularly tribal and rural community engaged in conservation and improvement;
Preservation of plant genetic resources of economic plants and their wild relatives;
Maintenance of the National Register of Plant Varieties and
Maintenance of National Gene Bank.
Registration of varieties
A variety is eligible for registration under the Act if it essentially fulfills the criteria of Distinctiveness, Uniformity and Stability (DUS). The Central Government issues notification in official Gazettes specifying the genera and species for the purpose of registration of varieties. So far, the Central Government has notified 157 crop species for the purpose of registration. To access the list,
The PPV&FR Authority has developed
tests or “Specific Guidelines” for individual crop species.
To know the time limit for registration of extant varieties, .
To know the registration process,
Fees for registration
Application for registration of plant varieties should be accompanied with the fee of registration prescribed by the Authority. Fee for registration for different types of variety is as under:
S.No
Types of Variety
Fees for Registration
1
Extant Variety notified under section 5 of the Seeds Act, 1966
Rs 2000/-
2.
New Variety/Essentially Derived Variety (EDV)/ Extant Variety aboutwhich there is common knowledge (VCK)
The Registration of a variety is renewable subject to payment of annual and renewal fee as notified in the Plant Variety Journal of India of the Authority and Gazette of India dated 15.06.2015.
DUS Test Centers
Authority has notified DUS test Centers for different crops with a mandate for maintaining and multiplication of reference collection, example varieties and generation of database for DUS descriptors as per DUS guidelines of respective crops. To access the list of DUS test Centers,
Certificate of Registration
The certificate of registration issued will be valid for nine years in case of trees and vines and six years in case of other crops. It may be reviewed and renewed for the remaining period on payment of renewal fees subject to the condition that total period of validity shall not exceed eighteen years in case of trees and vines from the date of registration of the variety, fifteen years from the date of notification of variety under the Seeds Act, 1966 and in other cases fifteen years from the date of registration of the variety.
Benefit Sharing
The benefit sharing is one of the most important ingredients of the farmers’ rights. Section 26 provides benefits sharing and the claims can be submitted by the citizens of India or firms or non-governmental organization (NGOs) formed or established in India. Depending upon the extent and nature of the use of genetic material of the claimant in the development of the variety along with commercial utility and demand in the market of the variety breeder will deposit the amount in the Gene Fund. The amount deposited will be paid to the claimant from National Gene Fund. The Authority also publishes the contents of the certificate in the PVJI for the purpose of inviting claims for benefits sharing.
Rights of Community
It is compensation to village or local communities for their significant contribution in the evolution of variety which has been registered under the Act.
Any person/group of persons/governmental or non- governmental organization, on behalf of any village/local community in India, can file in any notified centre, claim for contribution in the evolution of any variety.
Convention countries
Convention country means a country which has acceded to an international convention for the protection of plant varieties to which India has also acceded or a country which has law of protection of plant varieties on the basis of which India has entered into an agreements for granting plant breeders’ rights to the citizen of both the countries. Any person if applies for the registration of a variety in India within twelve months after the date on which the application was made in the convention country, such variety shall, if registered under this Act, be registered as of the date on which the application was made in convention country and that date shall be deemed for the purpose of this Act to be the date of registration.
Plant Varieties Protection Appellate Tribunal
There is transitory provision by which it is provided that till the PVPAT is established the Intellectual Property Appellate Board (IPAB) will exercise the jurisdiction of PVPAT. Consequently the Plant Varieties Protection Appellate Tribunal (PVPAT) has been established by appointing Technical Member. All orders or decisions of the Registrar of Authority relating to registration of variety and orders or decisions of the Registrar relating to registration as agent or licensee can be appealed in the Tribunal. Further, all orders or decisions of Authority relating to benefit sharing, revocation of compulsory license and payment of compensation can also be appealed in the Tribunal. The decisions of the PVPAT can be challenged in High Court. The Tribunal shall dispose of the appeal within one year.
A trade mark (popularly known as brand name in layman’s language) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another. It is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. A trade mark provides protection to the owner of the mark by ensuring the exclusive right to use it or to authorize another to use the same in return for payment. The period of protection varies, but a trade mark can be renewed indefinitely beyond the time limit on payment of additional fees. Trade mark protection is enforced by the courts, which in most systems have the authority to block trade mark infringement.
The salient features of the Trade Marks Act, 1999
(a) Providing for registration of trade mark for services, in addition to goods.
(b) Amplification of definition of trade mark to include registration of shape of goods, packaging and combination of colours.
(c) All 42 international classification of goods and services (as earlier used) now applicable to India as well.
(d) Recognition of the concept of “well-known trade marks”.
(e) Increasing the period of registration and renewal of trade marks from 7 to 10 years, to bring it in conformity with the accepted international practice.
(f) Widening the scope of infringement of trade marks. For instance, use of a registered trade mark as trade name or as a part of a trade name or use of a mark which is identical or deceptively similar to a registered trade mark.
(g) Creation of an “Intellectual property Appellate Board” for hearing appeals against orders and decisions of the Registrar of Trade Marks for speedy disposal of cases and rectification applications which hitherto lie before High Courts.
(h) Criminal remedies in case of falsification of trade marks.
(i) Recognition of use of trade mark by even an unregistered licensee.
(j) Expeditious examination of a trade mark application on payment of five times the application fee.
Objective of the Act:
The object of trade mark law has been explained by the Supreme Court in Dau Dayal v. State of Utttar Pradesh AIR 1959 SC 433, in the following words:“The object of trade mark law is to protect the rights of persons who manufacture and sell goods with distinct trade marks against invasion by other persons passing off their goods fraudulently and with counterfeit trade marks as those of the manufacturers. Normally, the remedy for such infringement will be by action in Civil Courts.
Kinds of Trade marks
Product Mark
Product mark is a mark that is used on a good or on a product rather than on a service. This this type of trademark is used to recognize the origin of the product and helps in maintaining the reputation of a business. Trademark applications filed under trademark class 1-34 could be termed as a product mark, as they represent goods.
Service Mark
Service mark is similar to the product mark but a service mark is used to represent a service rather than a product. The main purpose of the service mark is that it distinguishes its proprietors from the owners of other services. Trademark applications filed under trademark class 35-45 could be termed as a service mark, as they represent services.
Collective Mark
Collective mark is used to inform the public about certain distinguished features of a product or service used to represent a collective. A group of individuals can use this mark so that they are collectively protecting a goods or service.
In a collective mark, normally the standards of the products are fixed by the regulator owing the mark. Others associated with the collective are held responsible to adhere to certain standards while using the mark in the course of business.
Certification Mark
Certification mark is a sign that denotes a products origin, material, quality or other specific details which are issued by the proprietor. The main purpose of certification mark is to bring out the standard of the product and guarantee the product to the customers. A certification mark can also be used to uplift the product’s standard amongst the customers by showing that the product had undergone standard tests to ensure quality. Certification marks are usually seen on packed foods, toys and electronics.
Shape Mark
Shape Mark is exclusively used to protect the shape of the product so that the customers find it relatable to a certain manufacturer and prefer to buy the product. The shape of a particular product can be registered once it is recognized to have a noteworthy shape. An example of a shape is the Coca-Cola bottle or Fanta bottle, which have a distinctive shape identifiable with the brand.
Pattern Mark
Pattern marks are those products that have specific designed patterns that come out as the distinguishing factor of the product. Patterns which fail to stand out as a remarkable mark is generally rejected since it does not serve any purpose. For a pattern to be registered, it has to show evidence of its uniqueness.
Sound Mark
Sound mark is a sound that can be associated with a product or service originating from a certain supplier. To be able to register a sound mark, when people hear the sound, they easily identify that service or product or a shows that the sound represents. Sound logos are called as audio mnemonic and is most likely to appear at the beginning or end of a commercial. The most popular sound mark in India is the tune for IPL.
The distinction between a trade mark and a property mark has been stated by the Supreme Court in the case of Sumat Prasad Jain v. Sheojanam Prasad and Ors., AIR 1972 SC 413. The Apex Court held: “…Thus, the distinction between a trade mark and a property mark is that whereas the former denotes the manufacture or quality of the goods to which it is attached, the latter denotes the ownership in them. In other words, a trade mark concerns the goods themselves, while a property mark concerns the proprietor. A property mark attached to the movable property of a person remains even if part of such property goes out of his hands and ceases to be his.”
One of the first landmark judgments in this regard is the “Whirlpool case” [N. R. Dongre v. Whirlpool Corporation, 1996 (16) PTC 583] in which the Court held that a rights holder can maintain a passing off action against an infringe on the basis of the trans-border reputation of its trade marks and that the actual presence of the goods or the actual use of the mark in India is not mandatory. It would suffice if the rights holder has attained reputation and goodwill in respect of the mark in India through advertisements or other means.
Advantages of having a trademark?
Exclusive Rights: The owner of Registered Trademark enjoys exclusive right over the trademark. The owner can use the same for all the products falling under the class(es) applied. Further, the owner can enjoy the sole ownership of the Trademark and can stop other from the unauthorised use of the Trademark under the same class where it is registered. It gives the right to sue the unauthorized user of the Trademark Registered.
Builds trust and Goodwill: The established quality of your product and services are known by everyone through the trademark and which establishes trust and goodwill among the customers in market. It helps in creating permanent customers who are loyal and always opt for the same brand.
Differentiates Product: It makes easy for customers to find your products. It makes your product and identity of products different from that of the existing and foreseen competitors and acts as efficient commercial tool. The logo can communicate your vision, quality or unique characteristic of your company and any organisation.
Recognition to product’s Quality: It gives recognition to the quality of the product. Customers attach the product’s quality with the brand name and this image is created in the market about the quality of a particular brand which helps in attracting new customers as they can differentiate the quality of a product by the logo/brand name.
Creation of Asset: Registration of Trademark creates an intangible asset i.e. Intellectual Property for an organisation. Registered trademark is a right created which can be sold, assigned, franchised or commercially contracted. Also, the Trademark is an intangible asset which gives the advantage to the organisation.
Use of ® symbol: Once the trademark is registered you can use the ® symbol on your logo stating that it is a registered trademark and no one can use the same trademark. It is exclusive of all types of usages as well as rights. If someone else use the trademark then you can also sue the party if the trademark is registered.
Protection against infringement: No competitor or other person can use the wordmark or logo registered by you under trademark. However, if in any case one uses it without the approval of the owner of trademark or make any deceptive use of same, the owner can get the legal protection under the Act and stop the person doing so.
Protection for 10 Years at low cost: Online Trademark registration is done on a very low maintainability cost. Once you register the trademark you have to just pay the maintenance cost and renewal cost which is after 10 years of registering the trademark. It is cost efficient and helps your company create an unique image.
Attract Human Resources: Young minds aspire to join big Brands as it acts as a magnate. It inspires the positive image of the organisation and thus candidates are attracted towards them easily. This reduces the cost towards hiring and related activities.
What are the products or services, for which a trademark can be applied for?
All the goods and services are covered under trademark Act, 1999 also note that the Register shall classify goods and services, as far as may be , in accordance with the international classification of goods and services for the purposes of registration of Trade Marks.
How to apply for Trademark?
A trademark application is made in both modes offline and online. But there is some difference of Departmental Fees, the fees is a little higher in case of offline mode. The application is followed by Form TM -48 for Authorisation of an Agent along with supporting documents which differs in case of Proprietor, Company or Partnership or as the case may be.
What are the fees associated with applying for trademark?
The Departmental fees for applying for Trademark is as follows:-
1. In case of proprietor: INR 4500/-
2. In any other case: INR 9000/-
One can even reduce the departmental fees by half if the applicant is registered under Ministry of Micro, Small and Medium Enterprize as MSME.
Where to make the application in case of offline trademark application?
The application shall be filed in the office of the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant or in the case of joint applicants the principal place of business in India of the applicant whose name is first mentioned in the application as having a place of business in India, is situated.
How long it takes to get a trademark?
The process to acquire a trademark generally required four to five months as there is procedural part
Submission of application to department.
On vetting of application, the department Accepts the application.
After the acceptance, the department publish the trademark, the applicant applied in Official Gazette of India. This publication is made to announce the public at large, that we are about to register this published trademark and all the rights to use this mark shall be vested with the applicant. If any person has any objection with same, then the reply can be submitted to department.
If no objection is received within a period of One Hundred and Twenty days (120) from the publication in Official Gazette, then the Departments registers the Trademark on the name of Applicant and he then can use the mark ® on his product or services Trademark.
With so many benefits and to protect your trademark where every single day, a new person starts their business, it becomes pertinent to acquire a trademark and protect your Brand value which a businessman is building or have already build for its goods and services over a period of time.
Types of Trademark Infringement
When looking into trademark infringement, one must know that are two types of infringement:
1. Direct infringement
Direct infringement is defined by Section 29 of the Act. There a few elements that have to be met for a direct breach to occur; they are as follows:
Use by an unauthorised person: This means that violation of a trademark only happens when the mark is used by a person who is not authorised by the holder of the registered trademark. If the mark is used with the authorisation of the holder of the registered trademark, it does not constitute infringement.
Identical or deceptively similar: The trademark used by the unauthorised person needs to either be identical to that of the registered trademark or deceptively similar to it. The term ‘deceptively similar’ here only means that the common consumer ‘may’ be confused between the marks and may think of them being the same. The operational word here being ‘may’, it only needs to be proven that this is a possibility and does not require proof of actually happening. As long as there is a chance of misrecognition of the marks, it is enough for proving infringement.
Registered trademark: The Act only extends protection to trademarks that have been registered with the trademark registry of India. In the case of breach of an unregistered mark, the common law of passing off is used to settle disputes. It is a tort law that is used where injury or damage is caused to the goodwill associated with the activities of another person or group of persons.
Class of goods or services: For the infringement of the trademark, the unauthorised use of the mark has to be used for the propagation of goods or services that fall under the same class of the registered trademark.
2. Indirect infringement
Unlike direct infringement, there is no provision in the Act that deals with indirect infringement specifically. This does not mean that there is no liability for indirect infringement. The principle and application of indirect infringement arise from the universal law principle. It holds accountable not only the principal infringer but also anyone that abets, induces that direct offender to infringe. There are two types of indirect infringement:
Vicarious liability: According to Section 114 of the Act, if a company commits an offence under this Act, then the whole company will be liable. Therefore not only the principal infringer but, every person responsible for the company will be liable for indirect infringement, except for a person who acted in good faith and without knowledge of the infringement. The elements for vicarious liability are:- When the person can control the activities of the principal infringer – When the person knows of the infringement and contributes to it – When the person may derive financial gains from the infringement The only exception to vicarious liability of a company for infringement is when the company has acted in good faith and had no idea about the infringement.
Contributory infringement:There are only three basic elements to contributory infringement:- When the person knows of the infringement – When the person materially contributes to the direct infringement – When the person induces the principal infringer to commit infringement In the case of contributory infringement, there is no exception as there exists no chance of the contributory infringer to act in good faith.
Penalties for Trademark Infringement
In India, the infringement of a trademark is a cognisable offence which means that the infringer may also face criminal charges along with civil charges. It is also not required by Indian law for the trademark to be registered for the institution of civil or criminal proceedings. As mentioned before this is due to the common law principle of passing off. In the case of trademark infringement or passing off, the court may award the following remedies:
Temporary injunction
Permanent injunction
Damages
Account of profits (damages in the amount of the profits gained from the infringement)
Destruction of goods using the infringing mark
Cost of legal proceedings
In the case of a criminal proceeding, the court dictates the following punishment:
Imprisonment for a period not less than six months that may extend to three years
A fine that is not less than Rs 50,000 that may extend to Rs 2 lakh
Semiconductor Integrated Circuit Layout Design(SICLD) Act, 2000, has come into operation in India w.e.f. 4th September 2000. As per the provisions of this Act, Registrar Semiconductor Integrated Circuits Layout-Design Registry under the Ministry of Electronics and Information Technology (MeitY) has been appointed with its head office at Electronics Niketan, 6 CGO Complex, Lodi Road New Delhi-110003.The Registry maintains the Register of Layout-Designs and records in it the registered layout-designs with the names, addresses, and descriptions of the proprietor and such other matters related to the registered layout-designs.
Definitions
“Semiconductor integrated circuit” means a product having transistors or other circuitry elements, which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function.
“Layout-design” means a layout of transistors, and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit.
“Commercial exploitation” in relation to the SICLD means to sell, lease, offer or exhibit for sale or otherwise distribute such semiconductor integrated circuit for any commercial purpose.
Electronics and Information technology is one of the fastest growing sectors that has played a significant role in world economy. This is primarily due to the advancements in the field of electronics, computers and telecommunication. Microelectronics, which primarily refers to Integrated Circuits (ICs) ranging from, Small Scale Integration (SSI) to Very Large Scale Integration (VLSI) on a semiconductor chip – has rightly been recognized as a core, strategic technology world-over, especially for Information Technology (IT) based society. Design of integrated circuits requires considerable expertise and effort depending on the complexity. Therefore, protection of Intellectual Property Rights (IPR) embedded in the layout designs is of utmost importance to encourage continued investments in R & D to result in technological advancements in the field of microelectronics. The practice of providing protection through the methods of Copyright, Patents did not appropriately accommodate the requirements of Intellectual Property Rights protection for the Layout-Designs of Integrated Circuits. This was because of the fact that in the context of Layout Designs, the concept of “originality” is of utmost significance, whether it is a “novelty or not”. While the Patent Law requires that the idea should be original as well as novel, the copyright law is too general to accommodate the original ideas of scientific creation of LayoutDesigns of Integrated Circuits.
In view of the above, the necessity for providing protection for Layout-Designs of Integrated Circuits was felt to reward and encourage an adequate level of investment of human, financial and technological resources. The Majority of countries that attach significance to protection of Intellectual Property Rights in the Semiconductor Integrated Circuits provides for sui generis system of protection of Layout-Designs of Integrated Circuits, which is usually contained in a separate Act. Trade Related Intellectual Property Rights (TRIPS) Agreement under WTO contains provisions with regard to setting up of standards concerning availability, scope and use of Intellectual Property Rights, Geographical Indications, Layout-Design of Integrated Circuits etc. Therefore, the Government enacted the Semiconductor Integrated Circuit LayoutDesigns Act, 2000 providing for protection of Semiconductor Integrated Circuits Layout- Designs by process of registration, mechanism for distinguishing Layout-Designs which can be protected, rules to prohibit registration of Layout-Designs which are not original and/or which have been commercially exploited, period for protection, provisions with regard to infringement, payment of royalty for registered Layout-Design, provisions for dealing with willful infringement by way of punishment, appointing a Registrar for registering the Layout Designs and mechanism of Appellate Board. To conclude, the various modifications and amendments to earlier Intellectual Property Laws are an indication of India’s move towards new IPR regime so as to prepare ourselves for the global trade competition.
