1. Why IPR Protection should be granted?

Discuss the answer both from the

perspective of IPR owner as well as common public.


2. Explain the concept of Idea Expression Dichotomy. Whether concept note is
protected in India as copyright matter.

In the dichotomy of idea/expression, an expression has the potential to receive copyrights, while
ideas do not possess such potentiality. The most important to reason for the formulation of the
idea/expression dichotomy was to ensure that the manifestation of an idea is protected rather than
the idea itself . This concept was created with the intention of stimulating creativity but at the
same time ensuring that such creativity is protected. However, in developing countries like India,
this concept has not yet attained the levels of abstraction that is desirable and there has been little
application of this concept in the Indian context. However this position can be expected to
change and it is high time the Indian position on this concept is firmly established.
In R.G.Anand v. Deluxe Films, the plaintiff who was a part-time playwright and producer of
stage plays alleged that the defendant, who was a film-maker had copied substantial portions
from his play that had been enacted in Delhi in 1953 and had remade it into a film very shortly
afterwards and alleged a violation of his copyright. The respondent denied this allegation arguing
instead that the theme of provincialism that was common to both the play and the movie was a
common theme and was not an original idea of the plaintiff. In deciding this issue, the Supreme
Court ruled that there can be no copyright in an idea, subject matter, themes, plots or historical or
legendary facts and violation of the copyright in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the copyright work. In this instant case,
it was further ruled that if the defendant's work is nothing but a literal imitation of the
copyrighted work with some variations here and there it would amount to violation of the
copyright
The law concerning copyrights in India has been substantively dealt with under the Copyrights
Act 1957. Section 16 of the said Act clearly states that a person shall not be entitled to any form
of copyright otherwise than a right in accordance with the provisions of this Act or any other law
for the time being in force. Section 13 of the Act defines the scope of existence of copyrights by
stating exactly for what a copyright is available while Section 14 defines the meaning of a
copyright. Section 44 provides for the registration of copyrights with the registrar of copyrights
in India though there is no provision that makes registration compulsory. The Act also deals
extensively with what exactly amounts to a breach of copyright in Section 51 and has defined a
computer program to come within the ambit of a literary work. Though the Act may seem
exhaustive, the Act fails to define either an idea or an expression and any difference in the
treatment of the two while there has also been a relative dearth of case-law concerning the idea-
expression dichotomy.


3. What is Passing Off under Trademark law? State the difference between
Passing Off and Infringement of Trademarks.

The concept of Passing off is based on the common law principle and the damages claimed for
passing off action is unliquidated in nature. It is based on the principle that a man may not sell
his own goods under the pretense that they are the goods of another man. However, it has not
been defined by any law in India. It has only been referred to in Section 27 (2), 134 (1)(c) and
135 of Trademark Act, 1999. Section 27 (2) states that the rights of action against any person for
passing off as the goods of another person or the remedies in respect thereof are unaffected by
the provision of the Act. Section 134 (1) (c) refers to jurisdiction of courts to try suits for passing
off arising out of the use of any trademark. Section one 135 specifies the remedies available in
respect of passing off arising from the use of a trademark. It is a concept of tort which has
undergone major changes in the course of time.
The following three conditions has to be proved in order to successfully establish passing
off,
1. Goodwill
2. Misrepresentation
3. Damage
These conditions were laid down by the House of Lords in Reckitt & Colman vs. Borden.

Difference between Passing Off and Infringement of Trademarks:

For a passing off action registration of trademark is not relevant. It is based on property
in goodwill acquired by use of the mark. But infringement is based on statutory right
acquired by registration of trademark.
In case of a passing off action, the defendant's goods need not be same as that of the
plaintiff, they may be allied or even different. In case of an action for infringement, the
defendant's use of the offending mark may be in respect of the goods for which the mark
is registered or similar goods. In the claims of infringement based on well known trade
marks, the barrier of goods stands further diluted in view of the provisions of the Trade
Marks Act, 1999.
Another difference between the two is that in passing off action identity or similarity of
marks is not sufficient, there must also be likelihood of confusion. But in case of
infringement if the marks are identical or similar no further proof is required.
In the case Durga Dutt Sharma V. N.P. Laboratories , a Supreme Court judgment, the
difference between the two has been laid. It was held that " An action for passing off is a
Common law remedy, being in substance an action for deceit, that is, a passing off by a person of
his own goods as those of another. But that is not the gist of an action of infringement. The
action for infringement is a statutory remedy conferred on the registered proprietor of a
registered trade mark for the vindication of the exclusive right to use the trade mark."


4.What are the criteria of patent registration? Explain the procedure of patent
registration in India.

The Patentability Criteria differs from country to country depending on the law of the land, but
some common criteria exists between different countries. In order to avail the patent rights, an
invention must be novel, have utility, and differ from what skilled users might expect. These
standard requirements are given different aspects by the legislative and judicial systems of
different countries.
In the Indian Patent Law, the following three conditions has to be satisfied for an invention
to be patented,
1) Invention must be Novel
The fundamental requirement and the most important condition for an invention to be patented is
novelty. If the invention has already been in use or known to the public in any form in the world,
even that wont amount to novelty. The previous or existing knowledge and also any other
similar inventions in the same field will be taken into account when deciding if an invention is
novel.
The novelty of an invention can be destroyed even if there is any prior use of such invention
before filing of application for patent rights. Any oral description of the invention in some
seminar/conference can spoil novelty if the patent application is not filed within a stipulated time
period. In India the stipulated time is six months.
2) Useful
Though an invention is new to a person skilled in the art, it must have some utility to the
mankind. Therefore, a useless invention though may be new and non obvious will not be granted
the status of a patent.
3 Differ from what skilled users might expect
The Invention by any person in any field of art shall be of such a nature that a person, who is also
skilled in the art to which this invention relates, shall not be able to come to that invention unless
he is acquiring some special mental skills.
The procedure for patent registration in India:
1. An application with prescribed fees and the application is published in the official gazette
within 18 months of filing.
2. Any opposition from outside parties are dealt. If no objections are recorded the
application is proceeded for examination. Or else a hearing over it is held an the
application is held either valid or invalid accordingly.
3. The applicant then applies for examination within 48 months from the date of filing
according to the Sec 11B of Patent Act
4. Them the examiner within 18 months prior to the notice of examination sent to him
examines the feasibility of the application with Section 3, 4, 12 and 13 of the Patent Act.
5. Within 12 months from the first examination report the applicant should submit an order
of acceptance to the issues raised by the patent office.
6. Once the order of acceptance if finalized the application is open for opposition by any
interested party.
7. Once all objections have been cleared the patent is given for the corresponding
application.


5. What is Geographical Indication? What is the difference between
Appellation of Origin and Indication of Source?

A geographical indication is a distinctive sign used to identify a product as originating in the
territory of a particular country, region or locality where its quality, reputation or other
characteristic is linked to its geographical origin. The protection of geographical indications
matters economically and culturally. They can create value for local communities through
products that are deeply rooted in tradition, culture and geography. They support rural
development and promote new job opportunities in production, processing and other related
services.
Geographical indications are becoming a useful intellectual property right for developing
countries because of their potential to add value and promote rural socio-economic
development. Most countries have a range of local products that correspond to the concept of
geographical indications but only a few are already known or protected globally.
For example: Basmati rice or Darjeeling tea.
However, geographical names with commercial value are exposed to misuse and
counterfeiting. The abuse of geographical indications limits access to certain markets
and undermines consumer loyalty. Fraudulent use of geographical indications hurts
both producers and consumers.