A patent is an exclusive right granted to the patentee of an 'invention' that is a novel product or process that involves an inventive step and is capable of industrial application.
The term of a patent is 20 years starting from the date of the patent application. After the term of the patent expires, the invention becomes part of the public domain and the patentee ceases to have exclusive rights over the subject matter of the patent.
An industrial design may be protected in respect of specific classes of articles under the Designs Act 2000 if it is granted registration by the Controller General of Patents, Design and Trade Marks.
A design may be granted registration upon an application from a person claiming to be the proprietor of any new or original design that has not been previously published in any country. Upon being granted a registration, the registered proprietor of the design has a 'copyright in the design', which subsists for 10 years. The term of the copyright in a design may be extended by five years upon payment of a prescribed fee by the registered proprietor.
The Semiconductor and Integrated Circuits Layout-Design Act 2000 provides statutory protection to semiconductor integrated circuits layouts for 10 years upon registration under the Act. The Semiconductor and Integrated Circuits Layout-Design Act 2000 was enacted to give effect to Section 6 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A layout-design may be registered if it is original, distinctive and distinguishable from other registered layout-designs. It must also not have been commercially exploited in India or other convention countries.
The registered proprietor of a layout-design has the exclusive right to use the layout-design for a term of 10 years from the date of the application for registration or from the year of its first commercial exploitation anywhere in the world, whichever is earlier.
The Copyright Act 1957 provides for the protection of exclusive rights in the reproduction and exploitation of original literary, dramatic, musical and artistic works; cinematograph films; and sound recordings. The nature of a copyright varies with the nature of the different works that are protected by it.
A copyright subsists in a work from its very creation. Copyright registration is not a prerequisite to enjoying copyright protection in India, but it serves as prima facie proof of ownership of copyright before a court.
The copyright in a work typically subsists during the lifetime of its author and for 60 years after the year of the author's death, but there are variations to this rule in different classes of copyrights: for example, the term of a copyright in cinematograph films and sound recordings is 60 years from the year of publication.
The Copyright Act also provides for the protection of 'broadcast reproduction rights,' 'performer's rights,' 'author's special rights' (i.e., 'the moral rights of an author') and 'performer's moral rights'.
India is a member of the Berne Convention of 1886 (as modified in Paris in 1971), the Universal Copyright Convention of 1951 and TRIPS. Although India is not a member of the Rome Convention of 1961, the Copyright Act is compliant with its provisions.
A trademark is defined in the Trade Marks Act 1999 as a visual representation, or mark, that helps the consumer identify the source or provider of any goods or services. It can be represented graphically and is capable of distinguishing the goods and services of one person from those of others and may include the shape of goods, their packaging and combination of colours, among other things.
A mark may be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of a good, packaging or combination of colours or any combination thereof.
Registration of a trademark confers upon the registered proprietor the right to exclusively use the trademark in connection with goods and services in respect of which it is registered, and entitles the registered proprietor to seek relief in respect of infringement.
No person is entitled to institute any proceeding to prevent, or to recover damages for infringement of unregistered trademarks, but an action against a person for passing off goods or services as the goods or services of another would still lie.
Registration of a trademark is valid for 10 years and may be renewed thereafter from time to time upon payment of a renewal fee prescribed under the Trade Marks Act 1999.
The Trademarks Rules 2017 came into effect on 6 March 2017 introducing amendments that impacted trademark filing and prosecution. Notable amendments include:
a. the number of forms reduced from 74 to eight;
b. applicants are classified into four categories (i.e., individual, start-up, small enterprise and others);
c. a procedure to apply for having a mark declared as well known has been introduced;
d. the official fee has increased, with special relief to individual, small enterprise and start-up entities;
and
e. a requirement for an MP3 format and graphical representation of the notations of a sound mark has been introduced
Geographical indications are protected under the Geographical Indication of Goods (Registration and Protection) Act 1999. Under this Act, any association of persons or producers or any organisation or authority that represents the interests of producers of certain goods
may apply for registration of geographical indication in relation to the goods. A geographical indication is an indication that identifies goods as originating, or being manufactured, from a particular geographical region or territory where a given quality, reputation or other characteristic of those goods is attributed to its geographical origin.
The registration of a geographical indication is valid for 10 years and may be renewed from time to time by way of an application by the registered proprietor. Registration of authorised users is also renewed in the same manner. Only authorised users are entitled to exclusive use of a geographical indication.
A valid geographical indication entitles the registered proprietor and the authorised users to obtain relief in respect of infringement of the geographical indication.
The Geographical Indications Registry is located in Chennai and since its establishment, the registry has granted registrations to 238 geographical indications.
Indian law on trade secrets and business information has not been codified under statute. Trade secrets are protected in India through contract law and the equitable doctrine of breach of confidence. In cases where confidential information and trade secrets are not protected by a contract, the person seeking to enforce the confidentiality or secrecy of information can do so only if certain conditions are fulfilled:
a. the information must be confidential;
b. the information must have been disclosed in circumstances from which an obligation of secrecy arises; and
c. the confidant should attempt to use or disclose the information.
Indian courts have observed that confidential information must be protected because a confidant is under a duty of confidentiality or fiduciary duty towards a confider, which if dishonoured would lead to the confidant gaining unfair advantage over the confider who offered the information in trust.
There are no specific statutory provisions that protect trade secrets or confidential information under Indian criminal law. There are provisions under the Indian Penal Code 1860 relating to criminal breach of trust, cheating, burglary, extortion, etc. that might be applied in a case where confidential information is misused. For example, it is an offence for a public servant to misuse his or her position with the intent of causing injury to any person. This provision is so broad that if a government officer is given documents containing trade secrets, it is an offence for that officer to misuse his or her position and disclose the secrets, beyond the proper discharge of his or her duty.
Similarly, the Right to Information Act prohibits the disclosure of information including commercial confidences, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. However, the exception to this rule is that the competent authority may disclose such information if the larger public interest warrants the disclosure.
The Protection of Plant Varieties and Farmers' Rights Act 2001 was enacted to comply with Article 27 of TRIPS. The legislation protects plant varieties by establishing the rights of farmers and breeders over the plant genetic resources that are being used to create new varieties of plants. It aims to provide for the establishment of an effective system for protection of plant varieties.
Protection under the Act does not include microorganisms. To be granted registration, a plant variety must be novel, distinctive, uniform and stable. An application for registration under this legislation can be made to the Plant Varieties Registry.
The registrar will then advertise the application for oppositions and give both parties a hearing before deciding on the application.
The aggregate term of protection in the case of a variety of trees or a variety of vines is 18 years, 15 years from the date of notification of the variety in the case of extant varieties and in all other cases it is 15 years from the date of registration of the variety.
The legislation grants provisional protection to a breeder whereby the registrar shall have power to issue such directions to protect the interests of a breeder against any abusive act committed by any third party during the period between the filing of an application for registration and the decision taken by the authority on that application.
A right granted under the legislation is infringed when a non-breeder or a person who is not an agent or licensee of a registered variety, sells, exports, imports or produces such variety without authorization. Infringement also occurs when any person uses, sells, exports, imports or produces another variety under a name identical or deceptively similar to a registered name so as to cause confusion among the public.
Having grown in leaps and bounds, the IP Industry in India is fast reaching new heights. The year 2014 had been the year of change and development in the field of Intellectual property laws in India and the country witnessed some significant introduction and amendments in its existing IP laws.
Some of the important administrative changes and developments include:
The Controller of Trademarks, Patents and Designs vide its public notice dated February 25, 2014 extended the online filing facility and included various other procedural forms within the ambit of online filing scheme. Therefore forms for request for post-registration changes, extension of time and review along with 57 other forms were made available to be filed online within the comprehensive e-filing scheme of the IPO.
Thereafter, vide public notice dated March 11, 2014 several other forms pertaining to the request for registered user, Trade Mark Agents Registration Form and Association Fees etc. were also made available to be filed online.
The Patent (Amendment) Rules 2014 (hereinafter referred to as “Rules”) came into effect from February 28, 2014 whereby the official fee was revised and a new third category of patent applicant was introduced in the form of “small entity”.
The amended Rules further brought 60% hike in the official fees payable by individuals. The official fees which were listed for applicants other than individuals in the previous rules are now the official fees payable by the small entity. Further legal entities other than the small entities would now pay official fees which have been increased by 100%, basically double the amount of what they were initially paying.
Moreover, with the aim to encourage more online filings, the amended rules provided for an additional fee of 10% to be levied on all paper filings.
The IPO by way of Trade Marks (Amendment) Rules 2014 has increased the official fee to register a trade mark in one class from USD 57 to USD 65 and expedited examination to USD 325 w.e.f. August 1, 2014.
The IPO also directed the applicants/agents who have filed trademark applications/requests for expedited examinations in respect of applications filed to tender/pay the applicable amounts towards deficiencies in fees USD 8 towards trademark application(s) filed and USD 41 towards request(s) for expedited examination in respect of applications filed between August 1, 2014 and August 7, 2014 on or before September 30, 2014 and failing which the Registrar of Trademarks shall not act upon such of the matters and until such additional/deficit fees are paid. The receipt of the deficiencies in fees after September 30, 2014 shall result in the shifting of the filing date to the actual date on payment of balance fees.
In addition to the several above-mentioned administrative changes, the other significant change that has come into place is pertaining to the amendment of statement of use and more particularly “date of use” in the application for registration of trademarks.
The Delhi High Court finally put an end to the controversy between brand owners, trade mark practitioners and the Intellectual Property Office (IPO) concerning a blanket ban imposed by the Controller General on Patents, Designs and Trade Marks on amendment of trade mark applications, and more particularly, amendment of “statement of use/date of first use”.
The dispute was pertaining to the Office Order of the Controller General of Patents, Designs and Trade Marks, which provided that “no request for amendment shall be allowed which seeks substantial alteration in the application for registration of trademark. The substantial amendment in the trademark, proprietor details, specification of goods/services (except deletion of some of the existing items), statement as to the use of mark shall not be permitted. However request for amendment in the proprietorship of the trademark on the basis of valid assignment or transmission; amendment in address of the applicant or in the applicant’s address for service; deletion or confinement of any item in the specification of goods/services, confinement/limitation in the area of sale of goods/rendering of service may be allowed”.
The Court held that the Controller General, even if superior in hierarchy to the Registrar, has no statutory role to play in the matter of registration of trademark as provided in the statute and if any decision were to be taken by the Registrar of Trademarks at the behest of or on suggestion or on command of Controller General as the impugned office order purports to do, the same would be patently illegal.
The Court further held that the Registrar has to, on case-to-case basis, decide whether the amendment claimed is bonafide or only an afterthought in order to meet any objection that may be raised against the Registration of a Trade Mark and that there cannot be a general order that no such amendment shall be allowed.
While the decision still provides that allowing the amendment request is at the discretion of the Registrar, however, the ruling nevertheless is seen as a respite for many manufacturers and traders in India and abroad.
On May 13, 2016, the Indian government announced the first unified IPR Policy, which was coordinated by the newly established Industrial Policy and Promotion Bureau for all intellectual property-related laws and government departments. According to this policy, registered patents and trademarks will be accelerated, and the time of registering trademarks will be from the previous months or even years to within one month. At the same time, India successfully resisted pressure from international drug dealers and refused to modify the content of drug imitation in the patent law.
On May 14, the Indian Intellectual Property Office officially issued a revised version of the Patent Law, and became effective on May 16.
On September 28, 2016, the Indian Cabinet approved the India-Singapore Industrial Property Agreement.
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