Intellectual property rights

Intellectual Property: sounds like a very complex and complicated idea but is something that
we come across a lot of times in our daily life. Intellectual property means creation/
innovation by men and the thought to protect them was since medieval period. In the 19th
century, various IP laws were enacted to protect the rights of the people.
This article talks about Intellectual Property Rights, its history, origin and evolution.
What Is An Intellectual Property:
Intellectual Property refers to:
a. Inventions,
b. Innovative designs,
c. Products of human creativity
d. Identifiers of organizations or their products and services or
e. Unique products that have a geographical attribute.

Intellectual Property Rights are of various types, but the three most important ones are as
follows:
1. 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. [3]

2. Copyright: Copyright (or author's right) is a legal term used to describe the rights that
creators have over their literary and artistic works. Works covered by copyright range from
books, music, paintings, sculpture, and films, to computer programs, databases,
advertisements, maps, and technical drawings.[4]

3. Trademark: Trademark means a mark capable of being represented graphically and

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 combination of colours.
Intellectual property right came into existence during 18th century during the peak of
industrialisation.
Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on
international IP rights. TRIPS came into force in 1995, as part of the agreement that
established the World Trade Organisation (WTO). Bought a huge change in the intellectual
property rights.
Patent acts 1970
Before 1995There was a process patent Meaning the whole process of Building the
Particular product is known as patent
The product patent later was introduced Because people were finding the different ways to
manufacture the product Which is same product but in different way.

Section 2 of patent act

New Invention
Firstly, the invention must be novel, meaning thereby that the Invention must not be in
existence.
Secondly, the Invention must be non- obvious, i.e. the Invention must be a significant
improvement to the previous one; mere change in technology will not give the right of the
patent to the inventor.
Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the
Invention must not be solely used in any illegal work and is useful to the world in a bonafide
manner.
Determined by the special agent Who is killed in the particular field of patent invention.
Determining the nun test.
To get a patent on your product, your invention must fulfil four criteria. Together, these are
often referred to as the “NUNS” criteria. The NUNS test includes tests of Novelty, Utility,
Non-Obviousness, and Subject Matter Eligibility.
Section 6 patent act.
Section 6 of the Act provides for the persons entitled to make an application for a patent.
Any person who is the first and true inventor of an invention can apply for a patent in regard
to that invention in the patent office. However, such a right to make an application can be
transferred in favour of an assignee of the first and true inventor of the invention. In such
case, the application has to be accompanied by a proof of right to make an application along
with a declaration that the person so claiming is the first and true inventor of the invention.
An application for a patent may also be filed by a legal representative of a deceased person
who was entitled to such patent before his death.
Section 7of patent act form of application
Form of application
(1) Every application for a patent shall be for one invention only and shall be made in the
prescribed form and filed in the patent office.
[(1A) Every international application under the Patent Cooperation Treaty for a patent, as
may be filed designating India, shall be deemed to be an application under this Act, if a
corresponding application has also been filed before the Controller in India.
[(1B) The filing date of an application referred to in sub-section (1A) and its complete
specification processed by the patent office as designated office or elected office shall be
the international filing date accorded under the Patent Cooperation Treaty.
(2) Where the application is made by virtue of an assignment of the right to apply for a patent
for the invention, there shall be furnished with the application, or within such period as may
be prescribed after the filling of the application, proof of the right to make the application.
(3) Every application under this section shall state that the applicant is in possession of the
invention and shall name the 3[person] claiming to be the true and first inventor; and where
the person so claiming is not the applicant or one of the applicants, the application shall
contain a declaration that the applicant believes the person so named to be the true and first
inventor.
[(4) Every such application (not being a convention application or an application filed under
the Patent Cooperation Treaty designating India) shall be accompanied by a provisional or a
complete specification.
Steps of application
• First step is filling the form.
• Second step is paying the fees.
• The third step is providing a document required.
• filing the documents
• Submitting and securitising the application
Second stage of the application is-
• Published
• If other party feels to file, the objection they can.
• If not then the application is granted
Section 25 of IPA 1970
Section 25 entitled ‘Opposition to the patent’ is related to pre-grant and post-grant
opposition [4]. After filing the patent application, the invention is made public. This section
gives an opportunity to the public to challenge the patent applications and the granted
patents by raising objections by filing an opposition in the Indian Patent Office. If the
opposition is raised before granting the patent, then it is known as Pre-grant opposition
which is stated in Section 25(1) and if opposition is raised after the grant of the patent, then
it is known as post-grant opposition which is stated in section 25(2).

Pre-grant opposition and post-grant opposition can be made on the grounds listed under
Section 25(1) and Section 25 (2) (a) to (k) as:

wrongfully obtaining the invention, anticipation by prior publication, anticipation by prior

date, Prior claiming in India, Prior public knowledge or public use in India, obviousness and
lack of inventive step, non-patentable subject matter, insufficiency of description of the
invention, non-disclosure of information as per the requirement or providing materially false
information by an applicant, Patent application not filed within 12 months of filing the first
application in a convention country, nondisclosure/ wrong mention of source of biological
material, Invention anticipated with regard to traditional knowledge of any community,
anywhere in the world.
Form 7A has to be submitted in case of Pre-grant opposition and Form 7 has to be submitted
for post-grant opposition to the Indian Patent Office. Any person can file Pre-grant
opposition whereas only a person interested (persons who are engaged in or promoting the
same field of invention in which the patent application is filed) can file post-grant opposition.
Post-grant opposition can be filed at any time after the grant of patent but before the expiry
of a period of one year from the date of publication of grant of the patent.

There are no fees for Pre-grant opposition whereas some statutory fees are required to file
post-grant opposition. Infringement process cannot be initiated in case of Pre-grant
opposition as the patent is not granted to the applicant. Section 25(1) of the Act does not
openly allow the patent applicant an opportunity to be heard in court. In case of post-grant
opposition, infringement process can be started, and hearings occur in a conventional
manner in the Courts.
1. In terms of Section 9 of the Indian Patent Act, 1970, a patent application can be filed with
a provisional specification to secure the novelty of the invention, the immediate
advantage of a provisional specification is that the invention becomes safe at least from
the point of view of leakage of information. However, the applicant must file the complete
specification of the invention within 12 months of submitting the first application for
patent with the provisional specification.
However, in case the Inventor is ready with its invention in the form of a new product or
industrial process, then the application for the grant of the patent must be filed with
complete specification. The complete specification can be submitted at any time after the
filing of the provisional application; however, it must be filed with 12 months of making the
first application.
Types of patent specifications (Section 9 of the Patent Act, 1970)
Provisional Patent Specifications
Complete Patent Specifications
The provisional specification is filed when the invention is not complete, and the research
and development are midway, and the Inventor wants to protect the novelty of the invention.
In other words, the provisional specification is the first disclosure before the controller of
the patent by way of making a formal application in the prescribed manner.
The complete specification is filed when the research and development are complete, and
the product or the process is fully developed and is ready for mass production or usage. We
would be discussing in the forthcoming paragraphs the provisional specification and why it
should be filed at the earliest time possible.
Section 10 of patent act
Contents of specification
• Step By step Guide for the Making of that Particular invention.
Claims on the particular the process or part of the invention.
1. Describe the invention
2. Method of Producing
3. Disclose the invention
4. Best method of Utilising
5. Claims

Mandatory depositing of the material

Structure of the Patent Specification/Application
Content of Specification according to Section 10 of IPA 1970 as under:
• Title
• Field of Invention
• Background of Invention
• Statement of Objective of Invention
• Statement of Invention
• Brief Summary of Invention
• Brief Description of Drawings
• Detailed description of the Invention
• Claims
• Abstract
• Drawings

Priority Date
According to Section 11 of the Act, the priority date of the claims which are based on the
matter disclosed in the complete specification is the date on which such complete
specification is furnished. Following are the ways in which priority dates are decided in
different scenarios:

When a Complete Specification is filed in Pursuance of a Single Application:

According to Section 11(2) of the Act when a complete specification is filed in pursuance of
a single application along with which provisional specification and a specification as
mentioned in Sub-section (3) of Section 9 is filed, and the claim is based on the subject
matter disclosed in those specifications, then the priority date is the one on which the
relevant specification is filed.
Section 11A
18 months of time period is given before publishing the patent in the public domain. In order
to save it from the copy right and and a enable public to object.
Section 11B examination of the application
• It won't happen if you don't move the application within 48 months.
• If it doesn't apply for examination, then the application is rejected.
• In examination the patent is truly scrutinised.
Report
after the examination, the office makes a report Which consist of Objections regarding the
application this report is known as first Examination report.
section 13 search of anticipating of previous The publications or previous claims.
specifically provides that the examiner shall make an investigation for the purpose of
ascertaining whether the invention so far as claimed in any claim of the complete
specification is claimed in any claim of any other complete specification published on or
after the date of filing of the applicant’s complete specification, being a specification filed in
pursuance of an application for a patent made in India and dated before or claiming the
priority date earlier than that date.
Simply put, where the invention as claimed in a complete specification (A) filed in India has
already been CLAIMED in the complete specification (B) BUT where (B) has been filed in
INDIA before the priority date of (A) but (B) is published on or after the filing of (A), then in
such a case the relevant claims of (B) will anticipate the claims of (A) by PRIOR CLAIM.
• Procedural
• in depth check
• whole data get analysed
The examiner do this all the steps to make such investigation.
In case of amendment
You cannot change the application If it changes the nature of the patent.
Section -84 compulsory licensing
However, according to Section 84, the Controller makes use of a patented product and
issues a compulsory license to a third party under certain circumstances without the
permission of the patent owner. There are some prerequisites which need to be fulfilled if a
compulsory license is to be granted to any third party.

As per Section 84, any person who is interested or already the holder of the license under
the patent can make a request to the Controller for grant of compulsory license on expiry of
3 years from the date of patent grant when any of the following conditions is fulfilled-

• the reasonable requirements of the public with respect to the patented invention have
not been satisfied;
• the patented invention is not available to the public at a reasonably affordable price;
and
• the patented invention has not worked in the territory of India.
Section 84b
condition imposed by the patent Upon the grant of the license under the patent is
prejudiced.
Section 85 patent act
revocation of the patent by the controller For non working
• Here right Are not Suspended but permanently revoked.
• It happens after two years of Filing application or gaining license.
Section 86 The powers of controller to adjourn the application for the compulsory license.
If all the conditions are met in Section 83 Then the controller can adjourn the application of
section 84 If the license were to be suspended As per the convenience of the controller.

Section 88 The powers of the controller for granting the compulsory license
Section 88 of the Patents Act confers certain powers on the Controller in granting
compulsory licences, which are as follows:
• If the Licenses particularly dependent on the same person On whom the claim was filed
on the certain product which is also Against the application, then The first person who filed
the application can ask the controller To grant the license on other product.
• In case it becomes the burden on the original license then controller can Grant the
license on the other product.

1. where the manufacture, use or sale of materials are not protected by the patent and is
prejudiced due to the conditions imposed by the patentee on the grant of licences under the
patent, or the purchase, hire or use of the article or process which has been patented, the
Controller on being satisfied, can order the grant of licences under the patent to the
applicant or to customers of the applicant;
2. the controller can cancel an existing licence or instead of making an order for the grant
of a licence to the applicant, he may order the amendment of the existing licence, when an
application is made under Section 84 by a person who is the holder of a licence under the
patent;
3. when the same patentee holds two or more patents and an applicant for a compulsory
licence establishes that the reasonable requirements of the public have not been satisfied
with respect to some of the patents, if the Controller is satisfied that the applicant is unable
to efficiently or satisfactorily work the licence granted to him under the patents without
infringing the other patents of the patentee and if the patents involve technical advancement
or are of an economic significance in relation to the other patents, the Controller by order
may direct the grant of a licence in respect of the other patents to enable the licensee to
work the patents with respect to which a patent is granted under section 84;
4. where the Controller settles the terms and conditions of a licence, the licensee after
having worked the invention on a commercial scale for a period of at least 12 months can
make an application to the Controller to revise the terms and conditions on the pretext that
the terms and conditions that were settled have proved to be more onerous than what was
expected originally, as a result of which the licensee is unable to work the invention and
thereby incurring losses.
section 89 General purpose of granting the license.
The powers of the Controller upon an application made under section 84 shall be exercised
with a view to securing the following general purposes, that is to say,-
(a) that patented inventions are worked on a commercial scale in the territory of India
without undue delay and to the fullest extent that is reasonably practicable;
(b) that the interests of any person for the time being working or developing an invention in
the territory of India under the protection of a patent are not unfairly prejudiced.
Section 89
Licensing of related patent
Same as section 83 but with different person Negotiation is must.
section 92
special provisions
compulsory license can be granted Suo moto by the Central Government in circumstances
of:
• National emergency; or
• Extreme urgency; or
• In ease of public non-commercial use.
in those case the license is granted instantly without the consideration And government can
also grant or issue the license without application or official gazette.
section 92-A, on compulsory licensing for manufacturing and exportation of patented
pharmaceutical products into any country that does not have sufficient manufacturing
capability to address public health problems. Exportation is allowed mainly to those
countries where a compulsory license has been granted where such countries have notified
or otherwise allowed the importation of patented pharmaceutical products from India.
section 94 Termination of compulsory licenses
Section 47 of IPA 1970

Section 47 of IPA 1970 entitled ‘Grant of patents to be subject to certain conditions’ states
certain conditions to grant a patent. According to this section, the Government may import
or make or have made on its behalf any patented product or product made by a process for
purposes ‘merely of its use’ [8]. According to this section, the Government may impart
educational instructions and the distribution of patented medicines in government
dispensaries or hospitals on account of public service. Both process and product patents
can be imported by the government for the purpose merely of its own use.
Section 48 of IPA 1970

Section 48 ‘Rights of Patentees’ elaborate the rights of the patentee after granting the
patent. According to this section, exclusive rights are given to the patentee for his invention.
The patentee may prevent third parties who do not have his consent from the act of making,
using, offering for sale, selling or importing for those purposes that product in India. Any
person cannot use the patented invention without the permission of the patentee.

To the inventor, according to Section 48, patent law confers certain definite advantages.
However, the rights of the patentee under Section 48 curtail some of the rights of the
patentee.
NATCO vs Bayer corporation
They had a patent in 2008 for liver and kidney cancer costing two lakh 80K for a month.
NATCO claim under section 84 two issue CL As the drug was not affordable.
They've made that drug for 8K per month so that CL was issued to NATCO.
Section 108 of IPA Relief in suits of infringement
1) The reliefs which a court may grant in any suit for infringement include an injunction
(subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either
damages or an account of profits.

Sections 64 of IPA 1970.

Section 64 ‘Revocation of Patents’ of IPA 1970 states the grounds on which opposition to the
patent grant can be filed and further patent grant may be cancelled [11]. IPA 1970 provides
opposition /revocation mechanisms to make sure that undeserving patents are not granted
and if they are granted, they can be opposed/revoked.

Grant of patent can be opposed under Section 25 and Section 64. Under Section 25 (2),
post-grant opposition can be filed at any time after the grant of patent but before the expiry
of a period of 1 year from the date of publication of grant of patent whereas under Section
64, opposition can be filed at any time after the grant of patent. As per Section 64, the
person who is interested (means person working in the same field of invention) can file the
petition, Central Government and the person making the counterclaim in a suit for the
infringement of a patent can file petition in High court. More than 15 grounds are mentioned
in Section 64 on which petition can be filed. However, revocation is not limited to the ground
provided by Section 64. For post-grant opposition, grounds for opposition are limited to
those provided under Section 25 (2). Section 64 allows all grounds to be used in the
revocation. Therefore, to file a petition under Section 64 is more flexible as compared with
Section 25.

Section 77

Section 77
Controller to have certain powers of a civil court
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d)issuing commissions for the examination of witnesses or documents;
(e)awarding costs;
(f) reviewing his own decision on application made within the prescribed time and in the
prescribed manner;
(g) setting aside an order passed ex- parte on application made within the prescribed time
and in the prescribed manner;

Section 78 The power of controller to correct Clerical errors

Section 79
Evidence how to be given and powers of Controller in respect thereof
Subject to any rules made in this behalf, in any proceeding under this Act before the
Controller, evidence shall be given by affidavit in the absence of directions by the Controller
to the contrary, but in any case in which the Controller thinks it right so to do, he may take
oral evidence in lieu of, or in addition to, evidence by an affidavit, or may allow any party to
be cross-examined on the contents of his affidavits
Section 80
Exercise of discretionary powers by Controller

Without prejudice to any provision contained in this Act requiring the Controller to hear any
party to the proceedings thereunder or to give any such party an opportunity to be heard,
the Controller shall give to any applicant for a patent, or for amendment of a specification (if
within the prescribed time the applicant so requires) an opportunity to be heard before
exercising adversely to the applicant any discretion vested in the Controller by or under this
Act.
Provided that the party desiring a hearing makes the request for such hearing to the
Controller at least ten days in advance of the expiry of the proceedings
Section 81
Disposal by Controller of applications for extension of time

Where under the provisions of this Act or the rules made thereunder the Controller may
extend the time for doing any act, nothing in this Act shall be deemed to require him to give
notice to or hear the party interested in opposing the extension, nor shall any appeal lie from
any order of the Controller granting such extension.

Section 12 of the Patent Act 2013 generally deals with the criteria for patentability. It
outlines that for an invention to be granted a patent, it must be novel, involve an inventive
step, and be capable of industrial application. In simple terms, the invention should be new,
non-obvious, and useful in a practical way.

Section 14 of the Patent Act 2013 generally relates to the filing of a complete specification
after an initial application. In simpler terms, it outlines the process for providing detailed
information about an invention to the patent office once the initial application has been
submitted. This detailed information helps in determining whether the invention is eligible for
patent protection.

Section 15 of the Patent Act 2013 generally pertains to the extension of time limits for
various actions related to patents. In simple terms, it outlines the circumstances under
which the Controller of Patents may extend deadlines or time limits associated with patent-
related processes. This extension can be granted for reasons such as unforeseen
circumstances or genuine difficulties faced by the patent applicant.

The deblocking provisions in India are founded in Section 912 of the Act under which a
patentee/licensee of the basic patent who is unable to efficiently or advantageously exercise
a patented invention unless a blocking patent is infringed, can benefit. Under Section 91
which allows licensing of related inventions, the patentee/licensee of the basic patent, as
soon as the basic patent is granted, may apply to the Controller i.e. apply at the Indian
patent office, for a licence for the blocking patent, if, in the absence of such a licence, the
patentee/licensee is prevented or hindered from working the invention in the basic patent
efficiently or to the best advantage possible.

As per section 104 of the Act, a patent holder can file a suit for infringement of a Patent in
the District Court or the High Court. However in cases when a counter-claim for the
revocation of the patent, is made by the defendant, the suit along with the counterclaim is
transferred to the High Court.

Section 107A is somewhat similar to the provision given in Section 47(3) of the Act. It says
that any act which includes using, selling, or importing any patented product in the country,
for the mere purposes of development and research and to submit data about the said
patented product to the government of India or any other country which might regulate the
manufacture of similar products, will not be counted as an infringement of patent rights.
Likewise, the importation of protected items by any individual, from an individual who is
properly approved under the Law to create and sell or convey the item, will not be
considered as an encroachment of patent rights. The motive of the provision is to prevent
monopoly in any market where such a product might be used, but again, the terms research
and development are not clearly mentioned in the act and have been left up to the judiciary’s
interpretation of the law.

Section 108 of the Patents Act, 1970, which provides the reliefs which a court may grant in
any suit for infringement includes an injunction subject to such terms, if any, as the court
thinks fit and damages or an account of profits. An order for delivery or destruction of
infringer’s articles may also be passed.

TRADEMARK ACT 1999

The Trademarks Act of 1999 in India governs the registration and protection of trademarks
in the country. It outlines the rules and procedures related to the registration of trademarks,
the rights of trademark owners, and the penalties for trademark infringement. The main
objective of the Trademarks Act is to provide a framework for the proper registration and
protection of trademarks to prevent unauthorized use and ensure fair competition in the
market.

Section 2(1)(b) of the Trade Marks Act, 1999 states that assignment means an assignment of
a trademark in writing by the act of the concerned parties. Both unregistered and registered
trademarks can be assigned with or without the goodwill of the business.

To comprehend the legal definition of a trademark in India, we must first comprehend ‘The
Trade Mark Act, of 1999’. (Hereinafter the Act). A Trade Mark must be a ‘mark’ in addition to
possessing other basic features and being free of prohibited characteristics. As a result, the
legal definition of the mark as provided in Section 2(1)(m) of the Act is critical, which states
that a mark comprises a device, brand, heading, label, ticket, name, signature, word, letter,
numerical, form of products, packaging, or combinations of colours or any combination
thereof.
Section 2(m) of the Trade Marks Act, 1999, defines what does not qualify as a trademark.
According to this section, a mark that consists exclusively of marks or indications that may
serve in trade to designate the kind, quality, quantity, intended purpose, values,
geographical origin, or the time of production of the goods or the rendering of the service or
other characteristics of the goods or service, is not considered a trademark.

In simpler terms, if a mark merely describes the attributes of the product or service, it may
not be eligible for trademark protection under this section. Trademarks are typically
distinctive symbols that distinguish the goods or services of one entity from another, and
they should not be purely descriptive of the product or service.

Section 9 deals with trade marks that are not distinctive, descriptive or generic. A Trade
mark is considered distinctive if it is capable of distinguishing the goods or services of one
person from another.
Section 9(1) (a) tells us that if someone applies for a Trade mark which is not unique or
different, then the Trade mark examiner can refuse it. This means that if the Trade mark
doesn’t help to identify one person’s goods or services from another’s, it can’t be accepted.
Section 9(1) (b) says that Trade marks that only describe the kind, quality, quantity, and
geographical origin of the goods or services cannot be registered.
This is because these kinds of marks can be used by everyone in the same business, so no
one can claim exclusive rights over them.
For example, the word “apple” cannot be registered as a Trade mark for apples, but it can
be registered for computers and mobile phones since it is a distinctive mark in reference to
these goods.
To avoid Section 9 objections, one could file a unique mark or if the mark is a common,
descriptive or generic one, it could be filed with a user affidavit to establish acquired
distinctiveness of the mark.
Section 10- a trade mark is taken to be deceptively similar to another trade mark if it so
nearly resembles that other trade mark that it is likely to deceive or cause confusion.

According to Section 11, a trade mark cannot be registered if it is identical or similar to an

earlier trade mark that is already registered or pending registration for the same or similar
goods/services. If your trade mark looks too similar to one that’s already registered or
waiting for approval, then your application might get refused.
For example, if a person wants to register a trade mark for “Coca-Cola” for a beverage, the
application will be refused as it is identical to the prior mark which is already registered.

Section- 6 Registration requirements

The central government appoints a person to be known as the controller general of patents,
designs, and trade marks, who will be the Registrar of the trade mark, by stating it in the
official gazette. The central government may designate additional officials if they believe
they are appropriate for discharging, and the Registrar may permit them to discharge under
the supervision and control of the Registrar.

The Registrar has the authority to transfer or remove cases by a written request with
justification. It is covered under Section 6 of the Act on how to keep a registered trade mark
active. Except for the trust notice, all specified details, including those of registered trade
marks, must be recorded at the main office. Each branch office is required to maintain a
copy of the register. It permits the preservation of documents on diskettes, computers, or in
any other electronic format.

Section 7 of the Trademark Act, 1999 requires the classification of trademark according to
the international classification of goods and services. There are a total of 45 classes goods
and services may fall under in such a classification.
Section 20 of the Trade Marks Act, 1999 in India pertains to the rights conferred by the
registration of a trademark. It outlines that the registration of a trademark shall, if valid, give
the registered proprietor of the trademark the exclusive right to use the trademark in
relation to the goods or services for which it is registered. The registered proprietor has the
legal backing to take legal action against anyone using a similar or identical trademark in a
way that infringes upon these exclusive rights. For the specific details and legal nuances,
it’s advisable to refer directly to the text of the Trade Marks Act, 1999 or seek legal counsel.

Section 27- No action for an unregistered trade mark

This is defined under Section 27 of the Act, which states that no infringement will lie
concerning an unregistered trade mark but recognises the common law rights of the trade
mark owner to take action against any person for passing off goods as the goods of another
person or as the services of another person or the remedies thereof.

Section 28 of the Trade Marks Act, 1999 in India pertains to the rights conferred by
registration of a trademark. This section outlines the rights of the registered trademark
owner and includes provisions related to the exclusive rights to use the registered
trademark in connection with the goods or services for which it is registered. It also
addresses the legal remedies available to the trademark owner in case of infringement. For
specific details, it is advisable to refer directly to the text of Section 28 in the Trade Marks
Act, 1999.

Section 29 talks about the infringement of registered trade marks under the Act.
Infringement refers to the violation of someone’s rights. As a result, trade mark infringement
implies a breach of trade mark rights. Infringement of a trade mark occurs when an
unauthorised use of a trade mark or a substantially similar mark on goods or services of a
comparable type occurs. In such a scenario, the court will consider whether the use of the
trade mark would lead to consumer confusion about the genuine brand they are purchasing.
Thus, the following elements must be completed to categorise trade mark infringement as
provided under Section 29 of the Act:

• If the trade mark is a copy of an existing trade mark with minor modifications or changes.
• If the infringing trade mark is printed or utilised in advertising.
• If the infringing mark is employed in commerce
• If the mark utilised is sufficiently similar to a registered mark a customer is likely to be
confused or misled when picking a product category.
Concept of Passing Off

The term “passing-off” is not defined in the Trade Marks Act, 1999. Section 27 of the Trade
Marks Act, 1999 acknowledges the trade mark owner’s common law rights to pursue legal
action against anybody who misrepresents his goods or services as those of a third party or
seeks to exploit such rights. In Cadila Healthcare Ltd v. Cadila Pharmaceuticals Ltd, (2001)
the Supreme Court of India defined “passing-off” as a type of unfair commercial competition
or actionable unfair dealing in which one person, by deceit, seeks to get an economic
benefit from the reputation earned by the other in a particular trade or company.

A few key elements must be proven for a passing off action, as maintained by courts in a
series of judgements, which are listed below:

• Misrepresentation,
• The defendant must do the conduct in the course of his or her business.
• The plaintiff’s goods and services have been misrepresented to prospective or final
clients.
• Such deception is intended to harm the plaintiff’s company or reputation, and
• Such conduct creates genuine harm to the plaintiff’s company or reputation.
• The defendant’s motive is irrelevant in a passing-off suit. Once the plaintiff has created a
reputation, no additional proof of the defendant’s fraudulent intent is necessary to be
proven or established.

The comparison between an infringement action and passing off is portrayed below:
Copyright act 1957

Section 13 of the Copyright Act, 1957, is the most requisite Section as it deals with the
subject matter of copyright protection. According to Section 13(1), all of India is under the
purview of the Copyright, and the following classifications of works are protected by the
Copyright:
• Original artistic, musical, dramatic, and literary works
• Sound recording
• Cinematograph films
The published and unpublished works of architecture are discussed in Section 13(2). If the
work is published, it must be published in India. If the work is published outside of India, the
author must be an Indian citizen at the time of publication or at the time of his death. Except
for works of architecture, the authors of unpublished works must be Indian citizens or have
a place of residence in India. When it comes to architectural works, only the work itself must
be from India and not the architect, because architectural works can also be done in written
form. The copyright in an architectural work shall only apply to the creative character and
design and shall not include the construction process or processes.
Subject matter of copyright

All subject matters protected by copyright are called ‘works’. Thus according to Section 13
of The Copyright Act 1957, it may be subjected for the following works:

• Original Literary Work,

• Original Dramatic work,
• Original Musical work,
• Original Artistic Work,
• Cinematography films, and
• Sound recordings.

Section 2 deals with various definitions of the work which can be covered under the
definition of copyright. For example, Section 2(o) deals with literary works, Section 2(h)
includes all dramatic works under the definition of copyright protection, and Section (p)
deals with musical and graphical works.
The Copyright Act, 1957 has set a general rule under the definition of the author of various
works laid down under Section 2(d), which states that the author is the first owner of the
Copyright. Section 2(d) of the Copyright Act, 1957. The section reads as follows:

• In literary or dramatic works, the author of such work shall be the author.
• In musical works, the music composer shall be the author.
• In artistic works, the artist shall be the author.
• For a photograph, the person clicking such photograph shall be the author.
• In cinematographic films, the producer of such a film shall be the author.
• For a sound recording, the producer of such sound recording shall be the author.
• When a literary, dramatic, artistic or musical work is a computer generated then the
person who causes such work to be created is the author.
Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:

• Right to paternity– which incorporates the right to assert the authorship of the work, and
the right to forestall others from claiming authorship of his work; and
• Right to integrity- which incorporates right to restrain, or claim of damages in respect of
any distortion, modification, mutilation, or any other act relates to the said work if such
distortion, multiplication or alternative act would be prejudiced to claimant honor or name.

Infringement of copyright

Infringement of copyright takes place when a copyrighted work is reproduced, distributed,

publicly displayed, or uses work without the consent of the rightful copyright owner. The
following are the grounds for the owner to establish a copyright infringement by any person
are as below-mentioned:

Ownership of a valid copyright.

Violation of his or her exclusive rights under the statutory provisions.
As per Section 51 of the Copyright Act, it states the instance when copyright is infringed and
it consists of doing an act by one who is not authorized by the owner with the right to do or
permit any place for profit for infringement of the copyright. To determine infringement of
copyright, the surest test is to look if the spectator, viewer, or reader after having read or
seen both the works are of the clear opinion that the subsequent work appears to be a copy
of the former work. This test is also known as the observer’s test.