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Registration Of Protection Under IPR: Prosecution

Introduction

Intellectual property (IP) refers to any new original creation by a human intellect such as technical, artistic, literary, or scientific creation[i]. IPR (Intellectual Property Rights) refers to the legal rights give to the owner of the creation to protect and secure his creation for a certain period of time from mala fide use. You become the rightful owner of the things created by you but if it gets used by anyone it’s a long process to stop them from using it but when an intellectual Property gets registered it gets statutory proof and protection for its property. Registration gives the owner a set of legal rights over others. So, getting Intellectual Property Rights is a beneficial step.

Ways Of Protection Under IPR

IP (intellectual property) is a creation of a person’s mind. An Intellectual property can be anything a name, logo, design, images, literary and artistic work. There are some rights protecting one’s creation. There are different secured rights for different intellectual property they are as follows.

  • Copyright: In simple terms copyright mean the right to copy, adapt, distribute any intellectual property. Copyright is a right given to the owner of the intellectual property from the time when the work is presented in the tangible form. It mainly protects the original creator from unauthorized duplication or use[ii]. Copyright is given protection under The Copyright Act, 1957. Registration of copyright is not a mandatory process but it is a precautionary and suggestive step to statutorily safeguard your Copyrights.
[Image Sources: Shutterstock]

Protection Under IPRCopyright law is very essential for any startups and not only for book authors, musicians, film producers. It is important for all kinds of business be it small or huge. If it has its own interface, website, images, product manual, sales pitches, or any other marketing material. You have to protect it from any malafide usage, getting your work copied from any competitor or pirates.

And copyright is relevant to freelancers, content creators, bloggers, and many more sell services to ensure that their work doesn’t get unfairly used by any third party.

The registration processes

  • Filing an application: either physically or through e-filing registration of copyright (Form-XIV). Cost of filing an application differs on the work.

i.e., for an application for registration or copyright in a Literary, Dramatic, Musical or Artistic work is costs Rs, 500/- per work, and the same for Cinematography Film it costs Rs, 5,000/- per work.[iii]

  • Examination: once the application is filed the applicant receives a diary number then the application goes through an examination process. The minimum waiting period for the examination process to get complete is 30 days.

If the applicant doesn’t get any objections in the period of 30 days of filing the application, the copyright gets registered

But if the applicant receives any objections in case of some discrepancies are found, a letter is sent to the both the parties, and they are called for a hearing before the registrar. If the discrepancy is resolved the applicant is allowed to move to the next step.

 But if discrepancy is not resolved and the application gets rejected, a rejection letter is sent to the applicant. For such applicant registration process ends.[iv]

  1. Duration of copyright: 60 years in addition to the authors life’s span. And if there are more than one authors in that case the term will be 60 years post the death of the last author.[v]
  • Trademark:

A trademark can be any word, logo symbol, or a combination of these things. that identifies your goods and services. And helps your customer to recognize the goods and makes your goods or services different from other competitors.[vi] Trademark gives one a unique identity, it is a valuable asset to business. Registration of a trademark is not mandatory in India but it is a precautionary act from a future loss. Registering trademark of a brand logo gives the owner a statutory right over it and prohibits other from using it unfairly.

If there isnt a proper registration of the trademark your brand is unprotected and can be used by any third party. Trademark is secured under The Trademark Act 1999.

Trademarks are divided into certain classifications. India follows NICE Classification. The Nice Classification (NCL), established by the Nice Agreement (1957), is an international classification of goods and services applied for the registration of marks.[vii] the cost of application varies on the number of classifications. You can access the Nice Classification list via this link. (https://www.wipo.int/classifications/nice/nclpub/en/fr/)

Before applying for the registration of trademark it is advised to do a clearance search to eliminate all the future oppositions. Or else it might cause a huge loss to the company as the production, supply has to be halted.

Registration Process:

  • Class selection of the trademark.

India has adopted the Nice Classification system there are 45 different types of classes. It is very essential to choose a class which fulfills the requirement of the products and services of the business. If classes are more than one you have to select all the classes the costing may vary with each class.

  • Filing of the application:

Application can be filed by the owner of the trademark or an authorized agent. There are two ways to file an application either online or offline.

In offline form of filing, you have to visit the trademark registration office. There are 5 trademark registration office in India which are situated in Mumbai, Ahmedabad, Delhi, and chennai.the application must be filed as per territorial jurisdiction[viii]

If the application has to be filed online you can file on this website. (https://ipindia.gov.in/)

According to the search and given information the application has to be created in the prescribed format (Form TM-A) under the trademark rules. Once the application is filed you are free to use the ‘™’ symbol besides your symbol. Time required for the registration to get filed and complete its formalities will be 8 to 24 months. Once the application gets accepted you are free to use the registered symbol besides your logo

  1. Examination:

After filing an application, the the trademark examiner examines the application of the mark. If the examiner has no objection to the application, the application is published. But if there is any objection by the examiner that the mark cannot be registered under Indian law, an ‘Examination Report’ is issued explaining the reason or any technical or procedural problems regarding the application. The Examination Report is uploaded to the Trade Mark e-register and an email is sent to the applicant. If the resolution is solved the applicant can move ahead and complete the registration. But if not solved the registration may get cancelled.

Validity of registered trademark

All registered trademarks are valid for the period of 10 years from the date of application. At the end of its validity, a trade mark can be renewed easily by paying the Government fee for registration.[ix]

  • Patent

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.[x]

In simple words the patent owner has the right to stop or prevent others from comercially exploiting rhe patent invention.[xi]

Validity: The patent is granted 20 years from the date of filing of application. Patent cannot be renewed.

  • Trade secrets:

Trade secret is an intellectual property right on confidential information.[xii] The things that make a qualified trade secrets are, that it has to be of some commercial value, it must be known to a very limited amount group of people, necessary steps must be taken to ensure the safety of the secret.

One can protect a trade secret by signing a confidentiality agreement with all the member who are aware of the secret, and make contracts.

Trade secret is not a statutory right but many other laws contribute in protecting the trade secret like the Contract Act, the breach of trust principles.

Advantages Of Registration Of IPR

  • Makes you different from the competitors – As the increasing competition in the market, there are people willing to copy the concept of others for the financial benefits and development in the business. Hence protecting one’s own unique ideas and innovation. So, you have a competitive edge over other alike business.
  • Statutory rights – After registering an IP the owner gets statutory rights i.e legal rights over the IP for the protection for certain period of time.
  • Enhancement of company’s value – IP helps in generating more value to the business through sale or licensing agreements of the invention[xiii]
  • Access to raising finance – one can choose to sell his IP, license it or even use it as a collateral while taking on debt. Indian governtmant has created several laws the allow IP owners to use their IP to their advantage through loans, subsidies, and grants.[xiv]
  • Greater export opportunities – With the help of IP you can use your brand to advertise in many other countries and boost your business in foriegn lands. One can seek franchising agreements and even export patented products.

Conclusion

IPR has become a daily need for many peoples in their life. Protecting and securing it, is the main advantage any has. Registering an IP helps in securing the rights of your IP. registering an IP gives the creator an advantage over others. By way of Copyright, Trademark, Patent, Trade secret we can have statutory protection for our intellectual property. To stop the pirate, or the competitors from copying your ideas and inventions and dealing with a financial loss it is better to get ones Intellectual Property registered.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD. 

[i] Saha, C. N., & Bhattacharya, S. (2011). ‘Intellectual property rights: An overview and implications in pharmaceutical industry’. (Journal of Advanced Pharmaceutical Technology & Research), 2(2), <https://www.ncbi.nlm.nih.gov/.> Accessed 7 Dec. 2022.

[ii]Will Kenton ‘Copyright Explained: Definition, Types, and How It Works’. (Investopedia March 27,2022) <https://www.investopedia.com/terms/c/copyright.asp> accessed 7 december 2022.

[iii]‘Fee Details’. (Copyright Office), <https://www.copyright.gov.in/frmFeeDetailsShow.aspx.> Accessed 7 December 2022.

[iv]Paliwala, Mariya. ‘Procedure for Copyright Registration under Indian Copyright Act, 1957.’ (iPleaders, 14 January 2020), <https://blog.ipleaders.in/copyright-registration/>. Accessed 7 December 2022.

[v]Hana Onderkova, ‘Copyright Protection in India- Overview and Recent Developments.’ (IP Helpdesk,) 2 March 2022, <https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/copyright-protection-india-overview-and-recent-developments-2022-03-02_en.> Accessed 7 December 2022.

[vi] ‘What is a trademark?’ (USPTO, 31 March 2021,) <https://www.uspto.gov/trademarks/basics/what-trademark>. Accessed 7 December 2022.

[vii]‘Nice Classification.’ (Nice Classification),<https://www.wipo.int/classifications/nice/en/.>Accessed 7 December 2022.

[viii]Haridya Iyengar ‘What Is the Procedure to Register a Trademark in India.’ (iPleaders, 1 February 2016), <https://blog.ipleaders.in/registration-of-trademarks/.> Accessed 7 December 2022.

[ix] ‘Trade Mark – Registration Process & Validity.’ (IndiaFilings,) <https://www.indiafilings.com/learn/trade-mark/> Accessed 7 December 2022.

[x]‘Patents.’ (WIPO), <https://www.wipo.int/patents/en/.> Accessed 7 December 2022.

[xi]‘Patents.’ (WIPO), <https://www.wipo.int/patents/en/.> Accessed 7 December 2022.

[xii] ‘Trade Secrets – Everything you need to know.’ (WIPO), <https://www.wipo.int/tradesecrets/en/.> Accessed 7 December 2022.

[xiii] Vanita, Kandarp. ‘Advantages and Disadvantages of Intellectual Property Rights Advantages and Disadvantages of Intellectual Property Rights.’ (Corpbiz, 17 July 2021,) <https://corpbiz.io/learning/advantages-and-disadvantages-of-intellectual-property-rights/.> Accessed 7 December 2022.

[xiv] ‘Benefits of Intellectual Property Rights – Understanding IPR Advantages’ | (IPTSE,) <https://iptse.com/benefits-of-intellectual-property-rights/.> Accessed 7 December 2022.

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