Intellectual Property Law PDF

INTELLECTUAL PROPERTY LAW trademarkS rights are some of the forn patents, industrial design rights and Copyright, intellectual property rights, India...

INTELLECTUAL PROPERTY LAW trademarkS rights are some of the forn patents, industrial design rights and Copyright, intellectual property rights, India has enacted the intellectual property rights. To safeguard Merchandise Marks Act, 1958 which has been ronl. laced statutes. They are: the Trade and necessary 1957; the Patents Act, 1970; and the Designs Act the Copyright Act, by the Trade Marks Act, 1999; of intellectual property in India, India has enacted of 1911. To protect newly recognized species and Protection) Act, 1999; the Semiconductor The Geographical Indications of Goods (Registration the Protection of Plant Varieties and Farmers' Rights Integrated Circuits Layout Design Act, 2000; Act, 2001; and the Biological Diversity Act, 2002. 1957 THE COPYRIGHT ACT, Important Definitions Artistic work: Artistic work means: (i) a painting, a sculpture, a drawing (including a diagram, or a photograph, whether or not any such work possesses artistic map, chart or plan), an engraving 2()] quality; (i) a work of architecture; and (ii) any other work of artistic craftsmanship. [Section in words, Computer programme: Computer programme means a set of instructions expressed of codes, schemes or in any other form, including a machine readable medium, capable causing a computer to perform a particular task or achieve a particular result. [Section 2(ffc)] or Dramatic work: Dramatic work includes any piece for recitation, choreographic work entertainment in dumb show, the scenic arrangement or acting form of which is fixed in wrin or otherwise but does not include a cinematograph film. [Section 2h)]. Literary work: Literary work includes computer programmes, tables and compilato including computer databases. [Section 2(0)]. Musical uwork: Musical work means a work consisting of music and includes any grap. phical notation of such work but does not include any words or any action intended to be sung, spos or performed with the music. [Section 2(p)]. Copyright usical Copyright is a bundle of rights given by the law to the creators of literary, dramatic or must the work: artisticwork;and the producers of cinematograph film and sound recording, Section 14 ot o or Act defines a copyright for the purposes of the Act. Á copyright means the exclusive right to authorise the doing of any of the following acts in of a work or any substantial part respect there 1. Literary, dramatic or musical work (except computer programmes): The owner has right: ) to reproduce work in any material form including the storing of it in any mediu m electronic means; (i) to issue copies of the work to the public except copies already in ccah (iv) perform to the work in public or communicate it to the public; (v) to make any film or sound recording in respect of the work; (vi) to make any translation of the work;Cinetnake any adaptation of the work. [Section 14(a)]. (v1 :ot atic 2.Computer programmes: In addition to the above rights in the case of literary, dra cale musical work, the owner has exclusive right or for commercia to sell or give on commercial rental or offer for rental any copy of the programme. However, such commercial rental doe 686  Intellectual Property Law anply in respect of computer 687 the rental. [Section 14(b)]. programmes where the programme itself is not the essential object of 3. Artistic work: The owner has exclusive i to communicate the work to the public; right: (i) to reproduce the work in any material form; copies already in circulation; (iV) to include (iii) to issue copies of the work to the the public not being adantation of the work; (vi) to do in relation to anwork in any cinematograph film; (v) to make any in relation to the work in sub-clauses adaptation of the work any of the acts specified to (i) (iv); [Section 14(c)]. 4. Cinematograph film: The owner has exclusive right: (i) to make a or give on commercial rental or offer for sale or for such copy of the film; (i) to sell communicate the film to the public; [Section 14(d)]. rental, any copy of the film; (ii) to 5. Sound recording: The owner has exclusive embodying it including storing of it in ar.y medium right: (i) to make any other sound recording by electronic or other means; (i) to sell or give on commercial rental or offer for sale or for such rental, any communicate the sound copy of the sound recording; (ii) to recording to the public. [Section 14(e)]. Explanation.-For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation. Works in which copyright subsists Thesubject matter of copyright, the thing protected is called a "work". Copyright subsists throughout India in (a) original literary, dramatic, musical and artistic works; (b) cinematograph film;and (c) sound recording. (Section 13). Apart from these works, no other work is entitled to copyright under the Act. Copyright subsists throughout India in: (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording; (these terms are defined in the Act). However, the said copyright shall not subsist in any work, subject to foreign works (section 40) or works of certain international organisations (section 41), unless: (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (i) in the case of an unpublished work other than work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of work of architecture, the work is located in India. Further the said copyright shall not subsist: (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in Such work has been infringed. However, the copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made. In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction. Term/duration of copyright protection For published literary, dramatic, musical and artistic works: Copyright in literary, dramatic, musical and artistic works published within the life time of the author, shall subsist until sixty in which the author dies. ears from the beginning of the calendar year next following the year the author who dies last. (Sections the case of joint authorship, the author shall be construed as and works is: life time of the.Thus the term of copyright in literary, dramatic, musical is artistic not a perpetual right. After the author plus 60 years from the death of the author. Copyright and it is open to public to u_e the said piry of the said term, the work falls in public domain, Work without permission of the owner.  Tlrae.xaminatio Gulr to 11,M. (grandfather of no. 2) of he work had md admitledly Cn, died AIR in 1975 Del 199,T30, The the original defendant author No. 2 had purported to acdant the defendar In Khemnl v uwg the inho 1973-74. He claimed that he had to he delendant No. 1 in al Panehang who w a s the original copy right in a author through his grandfather could not subsistSof the work of orlginal copyright in in the work of the grandfather held that he copyright and therefore the nisrs he work. The eourt aftor hin death by virtue of section 22 of the Act, urported lern la 60 years) and ineffective. (now delendant I muINt be held to be void anlgnment to posthumous work; cinematograph films; so und and paenlonymous works; For anonymoua oJ 11ternational organisatione works; works of public undertakings; works ons: recording; govermmentl posthumous work; cinematograph flIms; and pseudonymous works; works of internationa Copyrlght in anonymous works of public undertakings; Ond recording; government works; of the calendar year next followin shall #ubaist until sixty ycars from the beginning and 26 to 29). ng organisations, or published. (Sections 23, 24, the year in which the work first published Copyright Office establishment of an office to be called the Copvrioh: Section 9 of the Copyright Act requires for Office is to be under the immediate control of a Office for the purpose of the Act. The CoPyright act under the the Central Government, who would Registrar of Copyrights to be appointed by Government. The Copyright Office is currently superintendence and directions of the Central New Delhi. located at: Jeevan Deep Building, Parliament Street, Registration of Copyright The Register of Copyrights (i.e., a register in the prescribed form) is being kept at the Copyright Office for entering the names or titles of works and the names and addresses of authors, publishers and owners of copyright and such other particulars as may be prescribed. (Section 44). The author or publisher of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights. Provaded that in respect of an artistic work which is used or is capable of being used in relation to any goods, the application shall include a statement to that effect and shall be accompanied by a certificate from the Registrar of Trade Marks referred to in section 4 of the Trade and Merchandise Marks Act 1958 (43 of 1958), to the effect that no trade mark identical with or deceptively similar to such artistic work has been registered under that Act in the name of, or that no application has been made under that Act for such registration by, any person other than the applicant. On receipt ot an application in respect of any work, the Registrar of Copyrights may, after holding such inquiry enter the particulars of the work in the Register of Copyrights. (Section 45). The Register Copyrights shall be prima facie evidence of the particulars entered therein and docu ents purporting to be copies of any entries therein, or extracts therefrom certified by the Registra of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence all courts without further proof or production of the original. (Section 48). Infringement of Copyright (Section 51) Copyright in a work shall be deemed to be infringed (a) when any person, without a licence granted by the owner of gistrar the copyright or the KeBod of Copyrights under this Act or in contravention of the conditions of a licence so or of any condition imposed by a competent authority under this Act: (i) does i n the exclusive right to do which is by this Act conferred upon the owner of the ayht or (ii) permits for profit any place to be used for the communication of the the public where such communication constitutes an wor the infringement work, unless he was not aware and had no reasonable of the copyrigntch suc ground for believing tna communication to the public would be an infringement of copyright; or.  Intellectual Property Law 689 (b) when any person: (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (i) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, o r (ii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work. However, the sub-clause (iv) shall not be applied to works imported when any person imports one copy of any work, for his private and domestic use. Acts which do not constitute infringement of copyright Section 52(1) of the Act provides a list of acts those shall not constitute an infringement of copyright. The said provisions shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself. Remedies Civil remedies: Civil remedies available by way of injunction, damages, accounts and otherwise as are or may be provided by law for the infringement of a right. (Section 55). Criminal remedies: Sections 63 to 70 deal with criminal remedies against the infringers. THE TRADE MARKS ACT, 1999 The Trade and Merchandise Marks Act, 1940 was the first law in this regard in India, which was replaced later by the Trade Marks Act, 1958. The Trade Marks Act, 1958 was replaced by the Trade Marks Act, 1999, which came into effect on September 15, 2003, is the current governing law related to registered trade marks. Though some aspects of the unregistered trade marks have been enacted into the 1999 Act, they are primarily governed by the common law rules based on the principles evolved out of the judgments of the Courts. Thus, in India trade marks are protected both under statutory law and common law. A Trade Marks Registry had been established for the purposes of the Trade and Merchandise Marks Act, 1940, which has continued to function under the TM Act, 1958 and TM Act, 1999. The Trade Marks Registry is under the charge of the Registrar Trademarks. The head office of the of Trade Marks Registry is located in Bombay (Mumbai) and its branches are located in Calcutta (Kolkata), Delhi, Madras (Chennai), and Ahmedabad. What is a trade mark? Trade mark is defined under section 2(zb) of the Act as a mark capable of being represented graphicallyand which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and section 2(m) mark includes a combination of colours. As per device, brand, heading, label, ticket, name, signature, word, letter, Tumeral, shape of goods, packaging or combination of colours or any combination thereof. Procedure for Registration of Trade Mark Application A person claiming to be the proprietor of a trade mark which is either used or is proposed to De used may apply for the registration of his trade mark by filing an application in writing in the Pprescribed manner to the Registrar appointed under section 3. This office of the Trade Marks Registry (established under section 5) within application is to be filed in the whose territorial limits lies tne principal place of business of the applicant. In this application De specified according to the international system of classification the class of the goods has to of goods or alphabetical index of classification published by the Registrar in accordance according to the with section 8 of the ct. There is provision for filing of a single application for classes of goods. [Section 18(1) registration of a trade mark for various to (3)].  Examination Guide to LL.M. Entrance 690 Acceptance or refusal may refuse the application or may After the application is made the registrar limitations, if any, conditions or accept it to such amendments, modifications, absolutely or subject of the application have e for refusal or conditional acceptance be may think fit. The grounds and (5)]. recorded in writing by the Registrar. [Section 18(4) Grounds for refusal for refusal of an application. Section 9 providas The Trade Marks Act provides the grounds whereas section 11 provides the relative grounda the absolute grounds for refusal of an application for refusal of an application. Section 9 stipulates that: are devoid of any distinct character; or (1) A trade mark shall not be registered: (1) if they in or indications which may serve trade to (i) if they consist exclusively of marks or the kind, intended purpose, values, geographical origin or the time quality, designate of production of goods or rendering of the services or other characteristics of the goods or service; or (ii) if they consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade. (2) A mark will not be registered as a trade mark if: (i) it deceives the public or causes confusion; or (i) it contains or comprises of such matter likely to hurt the religious susceptibilities of any class or sections of the citizens; or it (ii) contains scandalous or obscene matter; or (iv) its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950. However, a trade mark shall not be refused registration if before the date of application for registration it has acquired a distinctive character as a result of the use made of it or is a well-known trade mark. 3) The provision further provides that a mark will not be registered as a trade mark if it consists exclusively of: (i) the shape of goods which results from the nature of the goods themselves; or (i) the shape of goods which necessary to obtain a technical result; or is ii) the shape which gives substantial value to the goods. Section 11 stipulates that: (1) A trade mark may not be registered if, because of: (a) its identity with an earlier trade mark and similarity of goods and services covered to an earlier trade mark and the by the trade mark, or (b) its Similan identity or similarity of the goods or services cove by the trade mark, there is likelihood of confusion or there exists a likelihooa confusion on the part of the public, which includes the likelihood of association the earlier trade mark. w (2) A trade mark which: (a) is identical with or similar to an earlier to be registered for goods or services which are trade mark, and rlier not similar to those for which the trade mark is registered in the name of a different e i or to the extent, the earlier trade proprietor, shall not be registere mark is a well-known trade mark in India and Use of the later mark without due cause would take tua unfair advantage of or be detri to the distinctive character or repute of the earlier trade mark. (3 A trade mark shall not be registered if, or to the extent that, its use in India is 1a e be prevented-(a) by virtue of ng any law, in particular the law of passing off, proref an unregistered trade mark used in the course of trade, or (b) byvirtue ot ld of copyright. (4) Nothing in this section shall prevent the the registration of a trade mark where proprietor of the earlier trade mark or other earlier right consents to the registratio and  Intellectal Property law 691 in such case the Registrar may register the mark under special circumstances under section 12. (5) A trade mark shall not be refused registration on the grounds specified in sub-sections (2) and (3), unless objection on any one or more of those grounds is raised in opposition proceedings by the proprictor of the earlier trade mark. In Geep Flashlight Industries Ltd. v Registrar of Trade Marks, AlR 1972 Del 179, it was held that even if the appellant's proposed trade mark satisfies the conditions under the Act, the appellant is not entitled as a matter of right to the registration of the trade mark. It is open to the registrar to decline to register the appellant's trade mark. Advertisement of application After the application and the acceptance whether absolutely or conditionally, and even in certain circumstances before the acceptance, the Registrar causes the advertisement of the applicatiorn so as to afford to the public the opportunity to oppose the registration of the mark. After an application for registration of trade mark has been a accepted whether absolutelyor subject to conditions limitations, the Registrar shall cause the application as accepted together or with the conditions or limitations, if any, subject to which it has been accepted, to be advertised in the prescribed manner. However, the Registrar may cause the application to be advertised before acceptance if it relates to a trade mark to which section 9(1) and section 11(1) and (2) apply, or in any other case where it appears to him that it is expedient by reason of any exceptional ircumstances so to do. [Section 20(1)1. Opposition to registration After the advertisement, any person may, within four months from the date of advertisement or re-advertisement of an application for registration, give notice to the to the Registrar of his opposition registration application. The Registrar shall serve a copy of the notice to the applicant, and within two months of receiving the notice, the applicant shall send a counter-statement of the grounds on which he relies for his application of registration; failing which his deemed to be abandoned. The copy of the application is notice of opposition. The counter-statement is to be served on the person giving Registrar has the authority to decide the claims on the basis of the statements and the evidence produced. (Section 21). Registration When an application for registratiorn of a trade mark has been accepted, the Registrar shall, unless the Central Government otherwise months of the filing of the directs, register the said trade mark within eighteen The date of the application. The trade mark when registered shall be registered as on making of the said application and that date shall be deemed to be the date of registration. On the registration of a trade mark, the Registrar shall issue to the applicant a certificate of the registration thereof, sealed with the seal of the Trade Marks and (2)1. Registry. [Section 23(1) Duration he period of registration of a trade mark is ten years, but the said me to time in period may be renewed from accordance with the provisions of this section. [Section 25(1)]. Infringement of registered trade marks (Section 29) A registered trade mark is infringed by a person who, not being a registered using by way of permitted use, uses in the course of trade, a mark which:proprietor PESOn or a 4 is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to rernder the use of the mark likely to be taken as being used as a trade mark.  Guide to LL.M. Entrance Examination 692 and the similarity of the oo (ii) because of its identity with the registered trade mark (a) ods (b) its similarity to the registo or services covered by such registered trade mark, or ered the or services covered by sch trade mark and the identity or similarity of goods its with the registered trade mark and the identi registered trade mark, or (c) identity trade mark, is likely to ca of the goods or services covered by such registered confusion on the part of the public, or which is likely to have an association with tho registered trade mark. is used in relation to goode is identical with or similar to the registered trade mark; and (iil) or services which are not similar to those for which the trade mark is registered; and the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. Further a registered trade mark is infringed by a person: (i) If he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is Tegisterea, ( ) who aPplies such registered trade markk to a material intended to be used for labelling or packaging goods, as a business paper or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee Further also a registered trade mark is infringed by any advertising of that trade mark if such advertising: (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its of the trade mark. distinctive character; or (c) is against the reputation THE PATENTS ACT, 1970 Definitions Patent: Patent paternt for any invention granted under this Act. [Section 2m)|. means a Invention: Invention means a new of industrial application. [Section 2G)]. product or process involving an inventive step and capable Exclusive licence: Exclusive licence means. a licence from a patentee which confers on tne licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons including the patentee), any right in respect of the patented be construed invention, and exclusive licensee shall accordingly. [Section 2()] What are not inventions? Invention is defined under section section 3 of the Act: 2(j) of the Act, and the followings are not inventions as p i) an invention which is frivolous or which claims established natural laws; anything obviously contrary to well 1i) an invention the primary or intended use or commercial uld contrary public order moralityor or which causes exploitation of which coud or plant life or health or to the serious prejudice to human, a nimal ii) the mere discovery of a scientificenvironment; principle or the formulation of an abstract discovery of any iving thing or non-living substances theory iv the mere discovery of a new form of a known substanceoccurring in nature; enhancement of the known efficacy of that substance or thewhich does not result nin the property or new use for a known substance or of mere discovery of any the mere use cess, of a known pro  Intellectual Property Law 693 machine or apparatus unless such known process results in at least one new reactant. a new product or employs (v)a substance obtained by admixture resulting only in the aggregation of a mere the properties of the components thereof or a process for producing such substance; (vi) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of another in a known way; one (vii) a method of agriculture or horticulture; (vii) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of render them free of disease or to increase their economic value or that of theiranimals to (ix) plants and animals in whole or any part thereof other than micro-organisms but products. including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals; (x) a mathematical or business method or a computer programme per se or algorithms; (xi) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions; (xii) a mere scheme or rule or method of performing mental act or method of playing game; xi) a presentation of information; xiv) topography of integrated circuits; (xv an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. Inventions relating to atomic energy not patentable No patent shall be in respect of an invention relating to atomic granted energy falling within Sub-section (1) of section 20 of the Atomic Energy Act, 1962. (Section 4) Who are entitled to apply for patents Anapplication for patent for an invention may be made by any of the following persons a individually or jointly with any other person: (i) person claiming to be the true and first inventor of the invention; (ii) person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application; (ii) by the legal representative of any deceased person who immediately before his death was entitled to make such (Section 6). an application. Publication of applications for patents Section 11A provides that no application for patent shall ordinarily be open to the public for Such period as may be prescribed. The applicant may request the Controller to publish his cation at any time before the expiry of the said period. Every application for a patent shall, on the expiry of the said prescribed period, be published, except in cases where the application (a) in which secrecy direction relating to inventions relevant for defence purposes is imposed or 0 has been abandoned due to non-filing of complete specification within twelve months from the date of filing of the application; or has been withdrawn three months prior to the above said prescribed period. but where a secrecy direction relating to inventions relevant for defence purposes, has been ven, then the application shall be published after the expiry of the said prescribed period or when ne secrecy direction has ceased to operate, whichever is later.  Entrance Examination Guide to LL.M. 694 Opposition to patent has not been grantod has been published but patent a patent for an the Controller against the grant of nat a Where an application of opposition to atent person may, in writing, represent by way 25) the Act. (Section mentioned in section 25 of on the grounds Grant of patents of the patentan found to be in order for grant for a patent has been Where an application Controller by virtue of any power vested i application has not been refused by the either: (a) the contravention of any of th the application has not been found to be in him by this Act; or (b) as expeditious1y as possiDle to the applicant or. of this Act, the patent shall be granted provisions to the applicants jointly, with the seal of the patent office and in the case of a joint application, the grant of patent, the shall be entered in the register. On the date on which the patent is granted has been granted and thereupon the application. Controller shall publish the fact that the patent thereto shall be open for public inspection. (Section 43) specification and other documents related date on which the application for patent was filed, and Every patent shall be dated as ofthe no suit or other proceeding shall be commenced or prosecuted in respect of an infringement committed before the date of publication of the application. (Section 45) Conditions for granting of patents (Section 47) that The grant of a patent under this Act shall be subject to the condition (1) any machine, apparatus or other article in respect of which the patent is granted or any article made by using á process in respect of which the patent is granted, may be imported or made by or on behalf of the Government for the purpose merely of its ownm use; or on behalt or (2) any process in respect of which the patent is granted may be used by the Government for the purpose merely of its own use; (3) any machine, apparatus or other article in respect of which the patent is granted or an article made by the use of the process in respect of which the patent is granted, may be made or used, and any process in respect of which the patent is granted may be used, by any person, for the purpose merely of experiment or research including the imparing of instructions to pupils; and (4) in the case of a patent in respect of any medicine or drug, the medicine or drug may be imported by the Government for the purpose merely of its own use or for distrbution in any dispensary, hospital or other medical institution maintained by or on behalt or the Government or any other dispensary, hospital or other medical institution which the Central Government may, having regard to the public service that such dispensary hospital Official or medical institution renders, specify in this behalf by notification inthe Gazette. Rights of patentees The patentee has the exclusive sent, where patent is a right to prevent third parties, who do not have his cot product, from the act of making, using, offering for sale, selling or importing and where patent is a process, from the act of using that process, and from the act of for sale, selling or using, orte importing. (Section 48) Term of patent (Section 53) The term of every patent granted shall be twenty years from the date of lication for the patent, and the said patent shall cease to have effect filing of the appi eriod prescribed for the payment of any renewal fee, if that fee is not on the expiration of the Ped or within such extended paid within the prescribea P period as may be prescribed.  Intellectual Property Law 695 Penalties For contravention of secrecy provisions relating to certain inventions-Imprisonment for a term which may extend to two years, or with fine, or with both. (Section 118) For falsification of entries in register, etc.-Imprisonment for a term which may extend to two years, or with fine or with both. (Section 119) For unauthorised claim of patent rights-Fine which may extend to one lakh rupees. (Section 120) For wrongful use of words "patent office"-Imprisonment for a term which may extend to six months, or with fine, or with both. (Section 121) For refusal or failure to supply information to the Central Government or to the Controller Fine which may extend to ten lakh rupees. For furnishing information or statement which is false- Imprisonment which may extend to six months, or with fine, or with both. (Section 122) Practice by non-registered patent agents-Fine which may extend to one lakh rupees in the case of a first offence and five lakh rupees in the case of a second or subsequent offence. (Section 123) THEDESIGNS ACT, 2000 As per section 2d) of the Act, design means features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article. The application of shape, configuration etc., to an articde should be by an industrial process or imeans. In the finished article, it should appeal to and be judged solely by the eye. It does not include any trademark or property mark or any artistic work as defined in the Copyright Act, 1957. Prohibition of registration of certain designs (Section 4) The Act specifically prohibits registration of a design which: (a) is not new or original; or (b) has been disclosed to the public anywhere in India or in any other country by publication in tangibleform or by use or in any other way prior to the filing date; or () is not significantly distinguishable from known desigrns; or (d) comprises or contains scandalous or obscene matter. A design to be registered should be new or original. The words 'new or original' mean that the design which has beern registered has not been published anywhere or it has not been made known to the public. It had been inventedfor the first time or it has not been reproduced by anyone Bharat Glass Tube Ltd. v Gopal Glass Works Ltd, 2008 (10) SCC 657. Registration of designs Any person claiming to be the proprietor of any new or original design may apply to the Controller for registration of the design under this Act. The Controller shall, on the said application, refer the application to the examiner for examination to whether such as design is capable of being registered under this Act and the Rules made thereunder. On the report of the examiner, and if the n 1s not previously published in any country and is not contrary to public order or morality, aontroller may register the design under this Act. A design when registered shall be registered Onthe date of the application for registration. It is not obligatory for the Controller to register Hi diesign presented before him; he may, if thinks fit, refuse to register any design presented to n for registration; but any person aggrieved by any such refusal may appeal to the High Court. Section 5) he Controller shall grant a certificate of registration to the proprietor of the design when registered. (Section 9) eontroler shall, as soon as may be after the registration of a design, cause publication of e prescribed particulars of the design to be published and thereafter the design shall be open to public inspection. Section 7)  Examination Guide to LL.M. Entrance 696 proprietor of any new ororiginal design which is who claims to be the Thus, as any person of the design in India, a foreigner can published in India, can apply for registration not previously new or original design. The Controller to the Controller for registration of a also file an application of registration to the proprietor of the required procedure, grant the certificate shall, on completion the design. which excludes all persons from using of the design, Duration of registration of a design date of registration. is initially for ten years from the The duration of the registration of a desigm the extension ot the period of copyright before the expiration of the said ten years, application for IE, extend the period on payment of the prescribed fee, is made to the Controller, the Controller shall, from the expiration of the initial period of ten years. of copyright for a second period of five years extension even as soon as the design The proprietor of a design may make application for such is registered. (Section 11) Restoration of lapsed designs the fee for the extension Where a design has ceased to have effect by reason of failure to pay of copyright for further period of five years from the expiration of the initial period of ten years, Controller may, within the proprietor of such design or his legal representative, with the leave of the one year from the date on which the design ceased to have effect, make an application for the restoration of the design on payment of the prescribed fee. An application under this section shall failure to pay the contain a verified statement, fully setting out the cireumstances which led to the fee, and the Controller requirefrom the applicant such further evidence as he may rescribed may think necessary. (Section 12) If the Controller is satisfied that the failure to pay the fee for extension of the period of copyright was unintentional and that there has been no undue delay in the making of the application, he shal upon payment of any unpaid fee for extension of the period of copyright together with prescribed additional fee restore the registration of design. (Section 13) Piracy of registered design During the existence of copyright in any design it shall not be lawful for any person to plagiarize the same. If any person acts in contravention of this, he shall be liable for every such contravention to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt or if the proprietor elects to bring a suit for the recovery of the damages for any such contravention, and for any injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly. However, the total sum recoverable shall not exceed fifty thousand rupees. (Section 22) Cancellation of registration Any person may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on grounds: (a) that the design has beert previously registered in India; or (b) that it has been published in India or in any other prior to the date of registration; or (c) that the design is not a new or counu the design is not original design; (d) tna or registerable under this Act; or (e) that it is not a design as defined under sectio 2(d) of the Act. (Section 19)  MULTIPLE CHOICE QUESTIONS ON INTELLECTUAL PROPERTY LAW THE COPYRIGHT ACT, 1957 6. Copyright in a work shall be deemed to 1. The most recent amendment to the be infringed when any person, without a Copyright Act, 1957 was made in the year licence (a) 2011 (a) does anything, the exclusive right to b) 2012 do conferred upon the owner of the (c 2013 copyright (d) none of the above. 6) permits for profit any place to be used for the communication of the work to 2. As per section 2(0) of the Copyright Act, the public 1957, a literary work includes (Cmakes for sale or hire (a) computer programmes (b) tables (d) all the above. 7. Where copyright in any work has been (c) compilations (d) all the above. infringed, the owner of the copyright shall be entitled to civil remedies by way 3. Copyright subsists throughout India in of (a) original literary, dramatic, musiçal (a) injurnction and artistic works (b) damages (6) cinematograph film (c)accounts c)sound recording (d) all the above. (d) all the above. 4. The term of copyright for an author lasts THE TRADE MARKS ACT, 1999 how long? 8. The head office of the Trade Marks (a) life time of the author Registry is located in 6) life time of the author plus 50 years (a) Mumbai from his death (b) Kolkata (c) life ime of the author plus 60 years (c) Delhi from his death (d) Chennai. (d) none of the above. 9. Trade mark is defined under section 5. The Copyright Office for the purpose of 2(zb) of the Trade Marks Act, 1999 as a the Copyright Act, 1957 is currently mark capable of located in (a) being represented graphically (a) Chennai (b) distinguishing the goods or services of (b) Mumbai one person from those of others c) New Delhi (c) both (a) and (b) (d) Bangalore (d) none of the above. 697  Examination Guide to LLM. Entrance 698 (a) imprisonment upto three years of a trade 10. The application for registration office of the (b) fine marks to be filed in the the () both (a) and (b) Trade Marks Registry specifying to class of the goods according (d) either (a) or (b) or (c). of (a) the international system THE PATENTS ACT, 1970o classification of goods 16. An for a patent application for an (b) the alphabetical index of classification published by the Registrar invention may be made by (c) either (a) or (b) (a) the true and first inventor of the invention (d) both (a) and (b). b) the true and first inventor in respect of 11. Which section of the Trade Marks Act the right to make such an application providesthe absolute grounds for refusal of an application for registration of a (c) the legal representative of any trade mark? deceased person (a) Section 9 (d) persons stated in (a), (b) and (c) (b) Section 10 individually or jointly with any other person. (c)Section 11 17. A new product or process involving an (d) Section 12 12. After advertisement of an application for inventive step and capable of industrial registration of a trade mark, any person application is an may give notice of his opposition thereto, (a) industrial design to the Registrar within how many months (b) invention from the date of advertisement? (c) patent (a) two months (d) copyright b) three months 18. Any person may represent by way of (c) four months opposition to the Controller against the (d) six months. grant of patent 13. The period of registration of a trade mark (a) after an application for a patent has is been published (a) ten years b) before a patent has not been granted (b) twelve years (c) after a patent has been granted (c) fifteen years (d) both (a) and (b). (d) twenty years 19 The patent shall be granted as 14. Penalty for applying false trade expeditiously as possible to the. applicant marks, where an application for a patent trade descriptions, etc. shall be punishable with (a) has been found to be in order for grant (a) imprisonment for six months to three of the patent years (6) has not been refused by the Controller (b) fine fifty thousand to two lakh (c) has not been found to be in rupees (c) imprisonment for less than six months Contravention of any of the provisions or fine less than fifty thousand rupees of the Act (d) either (a) and (b), or (c) (d) either (a) and (b) or (a) and (c). 15. If any 20. The patentee, in case of process paternt person falsely representing a trade mark as registered, he has the exclusive right to prevent third shall be punishable with parties who do not have his consent, from the act of  Intellectual Property Law 699 (a) using that process (c) artistic work (b) using, offering for sale, selling or (d) all the above. importinng 26. As per section 4 of the Designs Act, 2000 (c)both (a) and (b) a design shall not be registered if it (d) none of the above. (a) is not new or original 21. The term of every patent granted shall be (b) has been disclosed to the public prior (a) ten years to the filing date b) twenty years (c) is not significantly distinguishable from known designs (c) thirty years (d) either (a) or (b) or (c). (d) fifty years. 22. If any person contravenes secrecy 27. The duration of the registration of a provisions relating to certain inventions, design is he shall be punishable with (a) for ten years (a) Imprisonment upto two years b) for fifteen years (b) fine (c) initially for ten years and shall be extended for a second period of five ()both (a) and (b) years (d) either (a) or (b) or (c). (c)initially for fifteen shall be years and 23. If any person claims patent rights extended for a second period of five unauthorisedly, he shall be punishable years with fine upto 28. As per section 2(g) of the Designs Act, (a) ten thousand rupees 2000, original, in relation to a design, (b) fifty thousand rupees means (c) one lakh rupees (a) originating from the author of such (d) one lakh and fifty thousand rupees. design 24. Who shall be deemed to be guilty of the (b) includes the cases though old yet are offence where it is committed by a new in their application company? () both (a) and (b) (a) the company (d) which has not been published. 6) person in charge of the company 29. A person may present a petition for the person responsible to the company cancellation of the registration of a design to the Controller if the design (d) all the above. has been registered in (a) previously THE DESIGNS ACT, 2000 India 25. As per section 2(d) of the Designs Act, (b) has been published prior to the date of 2000 a design does not include registration (a) trade mark is not a design as defined under (c) (6) property mark section 2(d) of the Act (d) all the above.  Guide to LL.M. Entrance Examination 700 ANSWERS* THE TRADE MARKS THE PATENTS THE DESIGNS THE COPYRIGHT ACT, 1999 ACT, 1970 ACT, 2000 ACT, 1957 16. (d) 25. (d) 1. (b) 8. (a) 17. (b) 26. (d) 2 (d) 9. (c) 18. (d) 27. () 3. (d) 10. 19. (d) 28. (c) 4. (c) 11. (a) 20. 12. (b) 29. (d) 5. (c) 21. (b) 6. (d) 13. (a) 22. (d) 7. (d) 14. (d). 23 (c) 15 (d) 24 (d)