Madrid Agreement

The Madrid Agreement Concerning the Interna onal Registra on of Marks, signed in 1891, is one of the
earliest interna onal trea es designed to facilitate the interna onal registra on and protec on of
trademarks. Here's an overview in English:
Madrid Agreement of 1891:
Objec ve:
The primary objec ve of the Madrid Agreement is to simplify and streamline the process for registering
trademarks across mul ple countries. It establishes a system for the interna onal registra on of
trademarks, allowing applicants to protect their marks in several member countries through a single
applica on.
Key Features:

• Centralized Filing: The agreement provides for the ling of a single interna onal applica on with
the Interna onal Bureau of the World Intellectual Property Organiza on (WIPO). This applica on
can designate mul ple member countries where the applicant seeks protec on.

• Interna onal Registra on: Upon approval, the mark is interna onally registered and protected
in the designated member countries. This simpli es the process for trademark owners by avoiding
the need to le separate applica ons in each country.

• Member Countries: The agreement ini ally had a limited number of member countries. Over
me, addi onal countries joined the Madrid Agreement, expanding its scope and e ec veness.

• Renewal and Changes: The Madrid Agreement includes provisions for the renewal of
interna onal registra ons and the recording of changes, such as changes in ownership or address.

• Single Administra on: The Interna onal Bureau of WIPO serves as the central administra on for
the interna onal registra on system under the Madrid Agreement.
Subsequent Developments:
While the Madrid Agreement marked an important step in interna onal trademark protec on, it was
later complemented and expanded by the Madrid Protocol in 1989. The Protocol introduced addi onal
features, such as the ability to le subsequent designa ons and the accession of the European Union as
a single en ty.
Impact:
The Madrid Agreement and its subsequent Protocol have signi cantly simpli ed the process for
interna onal trademark registra on, making it more e cient for businesses to protect their brands
globally. These interna onal agreements have contributed to harmonizing trademark registra on
procedures and promo ng interna onal coopera on in the eld of intellectual property.

What is a Trademark?
A trademark is the characteris cs or combina ons of characteris cs capable of dis nguishing the goods
and/or services of one enterprise from those of other enterprises. Trademarks fall under the ambit of
intellectual property rights and are protected by na onal and interna onal laws.
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 Examples of trademarks include the Nike “Swoosh” symbol, the arched M for McDonald’s or the bi en
apple symbol for Apple computers, etc.
Under The Trade Marks Act, 1999, the word “mark” is de ned under Sec on 2(1)(i)(V)(m) as “a device,
brand, heading, label, cket, name, signature, word, le er, numeral”. The term “Mark” under the Act
also includes the shape of goods, packaging, or combina on of colours or any other type of
combina on.
Sec on 2(1)(i)(viii)(zb) in the Trade Marks Act, 1999 de nes trademark as a mark which is:

• capable of being represented graphically;

• capable of dis nguishing the goods or services of one person from those of others;

• may include the shape of goods, their packaging and combina ons of colours.
Sec on 2(1)(i)(viii)(zb)(i) in the Trademarks Act, 1999 men ons about registered trademarks for goods
and services and further states that the person has the right to use the mark as the proprietor.
Sec on 2(1)(i)(viii)(zb)(ii) in the Act states that a person has the right to use the mark either as a
proprietor or a permi ed user whether with or without any indica on of the iden ty of that person. The
proprietor or a permi ed user can also use a cer ca on trademark or a collec ve trademark in this
regard.

Trademark law in India

Before 1940 there was no law on trademarks in India. A number of problems of infringement of registered
and unregistered trademark arose which were resolved under Section 54 of the Speci c Relief Act, 1877
and registration was adjudicated under the Indian Registration Act,1908. To overcome these dif culties,
the Indian Trademark law was enforced in 1940. After the enforcement of the trademark law, demand for
protection of trademarks increased as there was major growth in trade and commerce.

The Trademark law was replaced with the Trademark and Merchandise Act, 1958. It provides better
protection of trademark and prevents misuse or fraudulent use of marks on merchandise. The Act provides
registration of the trademark so that the owner of the trademark may get a legal right for its exclusive use.

This previous Act got replaced with the Trademark Act, 1999 by the government of India by complying it
with TRIPS (Trade-related aspects of intellectual property rights) obligation recommended by the World
Trade Organization. The aim of the Trademark Act is to grant protection to the users of trademark and
direct the conditions on the property and also provide legal remedies for the implementation of trademark
rights.

The Trademark Act, 1999 gives the right to the police to arrest in cases of infringement of the trademark.
The Act gives a complete de nition for the term infringement which is frequently used. In Trademark Act,
it provides punishments and penalties for the offenders. It also increases the time duration of registration
and also registration of a non-traditional trademark.
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Functions of a trademark
The following functions are performed by a trademark:

• Firstly, a trademark indicates the source or origin of the goods, products, or services. In this case, it
is presumed that any particular good can have only one origin.

• It assures the quality of the goods bearing the trademark to the consumers.

• Apart from the quality which is related to the goodwill of the product, the trademark also creates
brand awareness and serves the marketing purposes and advertising aspects. In other words,
companies put a great amount of resources into developing any product, marketing it to customers,
providing customer support and backing up their products with warranties. Trademark assures that
the effort to serve the consumers pays back.

• Provides legal protection and guards against counterfeiting and fraud of a particular brand.

• Finally, trademarks are used to differentiate the product from others. This is the distinguishing
factor that falls under distinctiveness. The idea is that trademarks would distinguish marketed
goods and services from those of competitors.

Types of Trademark
Service mark
A service mark is any symbol name, sign, device or word which is intentionally used in trade to recognize
and differentiate the services of one provider from others. Service marks do not cover material goods but
only the allocation of services. Service marks are used in day to day services :
• Sponsorship
• Hotel services
• Entertainment services
• Speed reading instruction
• Management and investment
• Housing development services
A service mark is expected to play a critical role in promoting and selling a product or services. A product
is indicated by its service mark, and that product’s service mark is also known as a trademark.

Collective mark
A collective mark is used by employees and a collective group, or by members of a collaborative
association, or the other group or organization to identify the source of goods or services. A collective
mark indicates a mark which is used for goods and services and for the group of organizations with
similar characteristics. The organization or group uses this mark for more than one person who is acting
in a group organization or legal entity for dividing the different goods or services. Two types of collective
marks for distinguishing with other goods or services of similar nature:
• Collective mark indicates that the marketer, trader or person is a part of the speci ed group or
organization. Example – CA is a collective trademark which is used by the Institute of the
chartered accountant.
• Collective trademark and collective service mark are used to indicate the origin or source of the
product.
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 A collective trademark is used by the single members of a group of an organization but is registered as a
whole group. Example- CA is the title or mark which given to the member of Institute of a chartered
accountant. That collective mark may be used by the group of association. This was added to the
Trademark Act, 1988.

Certi cation mark

A certi cate mark is veri cation or con rmation of matter by providing assurance that some act has been
done or some judicial formality has been complied with. A certi cation mark indicates certain qualities of
goods or services with which the mark are used is certi ed, a certi cation mark is de ned in the
Trademark Act, 1999.

Certi cation trade mark means a mark competent of identifying the goods or services in connection with
which it is used in the manner of trade, which is certi ed by the owner of the mark in respect of source,
body, mode of manufacturer of goods or performances of assistance, quality, accuracy or other
characteristics.

Those goods or services which not so certi ed and registrable as such under this Act, in respect of those
goods or services in the name as the proprietor of the certi cation trade mark, of that person. Registration
of certi cation mark is done according to the Trademark Act, 1999. Requirements for registration is the
product must be competent to certify.

Trade dress
Trade dress is a term that refers to features of the visual appearance of a product or design of a building or
its packaging that denote the source of the product to customers. It is a form of intellectual property. Trade
dress protection is implemented to protect consumers from packaging or appearance of products that
framed to imitate other products.

Essential of trade dress

• Anything that makes an overall look or overall dress and feel of brand in the market.
• The consumer believes that trade dress is the main indicator of differentiation of one brand or
goods from others.
• The requirement for the registration of trade dress is the same as the registration of the logo,
mark. The features in trade dress are size, colour, texture, graphics, design, shape, packaging, and
many more.
Designation of trademark
Trademark is designated by:
• ™ (™ is used for an unregistered trademark.it is used to promote or brand goods).
• ℠ ( used for an unregistered service mark.it is used to promote or brand services).
• R (letter R is surrounded by a circle and used for registered trademark).
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 Trademark
A trademark is a distinctive
sign, symbol, logo, name, or
any combination thereof used
to identify and distinguish
goods or services of one
enterprise from those of
others.
It is a form of intellectual
property that provides
exclusive rights to the owner
for the use of the mark in
connection with specific goods
or services.
Trademarks are registered with
the relevant trademark office
to obtain legal protection, and
the registration process
involves demonstrating the
distinctiveness and uniqueness
of the mark.
Property Mark
A property mark, on the other
hand, is a mark or symbol used
to identify and protect the
property or belongings of an
individual or entity.
Property marks are often
applied to personal or movable
property, such as equipment,
tools, or assets, to indicate
ownership and deter theft or
unauthorized use.
Unlike trademarks, property
marks may not be registered
with a specific intellectual
property office, and their
protection is often governed
by general property laws or
regulations.

In summary, while a trademark is primarily associated with branding and the iden ca on of goods or
services in the marketplace, a property mark is more focused on marking and protec ng tangible
property to establish ownership. Trademarks are a specialized form of intellectual property with a
registra on process, while property marks may rely on general property laws for protec on.
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 Uses of Trademark
Trademark identi es the owner of the product. Under any authorized agreement of product, a trademark
can be used, an example of trademarks goods names are, iPod and a big mac. Company logos like the
Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names like Apple, McDonald’s, and
Dolce & Gabbana.

The usage of the trademark by unauthorized means or illegal means by producing it in trading is known as
trademark piracy. If there is an infringement of trademark, the owner of the registered trademark can take
legal action and for an unregistered trademark, the only option is passing off. Many countries like the
United States, Canada and many more also, accept the trademark policies, so they also gave the right to
the master of product to take the action for the protection of their trademark A common concept of a
trademark is that the owner of a registered trademark has a more legal right for protection than the owner
of unregistered trademark.

The concept of usage of the non-physical trademark the Supreme Court held in the case of Hardie trading
Ltd. v. Addison paint and chemicals Ltd. The Supreme Court gave a wider interpretation on the usage of a
trademark that it could be non-physical and that there were no grounds to restrict the user to use on the
commodities or to the sale of the commodities bearing the trademark.

Owner of the Trademark

Trademark gives protection to the owner by assuring them with the exclusive rights to use a trademark, to
identify the goods or services or permit others to use it in results of payment. It is a weapon for the
registered proprietor to stop the others from illegal use of the trademark. Under Section 28 the rights
conferred by registration.
• The registration of a trademark is valid if the right is given to the certi ed owner of the
trademark, the owner has the exclusive right to use of the trademark in respect of goods or
services in which the trademark is registered and to claim maintenance in respect of infringement
of the trademark is given to the holder of the trademark.
• Wherever more than two persons are certi ed proprietors of the trademark which are same with
or nearly identical with each other. The exclusive right to use of each of those trademarks shall
not except if their own rights are related to any conditions or limitations entered on the register be
expected to be taken by one of those persons as against of other persons only by registration of
the trademark, but each of those persons has the same rights as against other persons.
Registration of Trademark
Any person claiming to be the owner of the trademark or supposed to used the trademark by him in future
for this he may apply in writing to the appropriate registrar in a prescribed manner. The application must
contain the name of the goods, mark and services, class of goods and the services in which it falls, name
and address of the applicant and duration of use of the mark. Here the person means an association of
rms, partnership rm, a company, trust, state government or the central government.

Conditions of registration
The central government by mentioning in the of cial gazette appoint a person to be known as the
controller, general of patents, designs and trademark who shall be the registrar of the trademark. The
central government may appoint other of cers also if they think that they are appropriate, for the purpose
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of discharging, under the superintendence and direction of the registrar, the registrar may authorize them
to discharge.

The registrar has the power to transfer or withdraw the cases by in writing with reasons mentioned. Under
Section 6 of the Act, discussed the maintenance of a registered trademark. At head of ce wherein
particulars of registered trademarks and other prescribed, particulars, except notice of the trust, shall be
recorded. The copy of the register is to be kept at each branch of ce. It gives for the preservation of
records in computer or diskettes or in any other electronic form.

Absolute grounds for refusal of registration

Absolute grounds for the refusal of registration is de ned in Section 9 of the Act. The trademarks which
can be lacking any distinctive characteristics or which consists exclusively of marks or signals, which can
be used in trade to indicate the kind, ne, quantity, supposed grounds, values, geographical origin.

And also a time of production of goods or rendering of the offerings or different characteristics of the
goods or offerings which consists solely of marks or indications which have come to be average in the
present language. That marks are not entitled to registration. Except it is con rmed that the mark has in
fact acquired a new character as a result of use before the date of application.

It gives that a mark shall not be registered as trademarks if:

1. It frauds the public or causes confusion.

2. There is any matter to hurt religious susceptibility.
3. There is an obscene or scandalous matter.
4. Its use is prohibited. It provides that if a mark contains exclusively of (a) the shape of goods
which form the nature of goods or, (b) the shape of good which is needed to obtain a technical
result or, (c) the shape of goods which gives substantial value of goods then it shall not be
registered as trademark.
Test of similarity
For the conclusion, if one mark is deceptively similar to another the essential features of the two are to be
considered. They should not be placed side by side to nd out if there are any differences in the design
and if they are of such a character to prevent one design from being mistaken for the other. It would be
enough if the disputed mark has such an overall similarity to the registered mark as it likely to deceive a
person usually dealing with one to accept the other if offered to him. Apart from the structural, visual, and
phonetic similarity or dissimilarity, the query needs to be viewed from the factor of view of man typical
intelligence and imperfect collection secondly. It’s regarded as an entire thirdly it is the query of his
impressions.

In Mohd. Iqbal v. Mohd. Wasim it was held that “it is common knowledge that ‘bidis’ are being used by
persons belonging to the poorer and illiterate or semi-literate class. Their level of knowledge is not high.
It cannot be expected of them that they would comprehend and understand the ne differences between
the two labels, which may be detected on comparing the two labels are common. In view of the above,
there appears to be a deceptive similarity between the two labels”.

Relative grounds for refusal of registration

Under Section 11 of the Act, it gives relative grounds for the refusal of registration of a trademark. A
trademark cannot be registered if because of (i) its identity with an earlier trademark and similarity of
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 goods or services, (ii) its similarity to an earlier trade mark and the similarity of the goods and there is a
probability of confusion.

It also gives that a trademark cannot be registered which is identical or similar to an earlier trademark.
And also which is to be registered for goods and services which are not similar to those for which earlier
trademark is registered in the name of a different proprietor if, or to the extent, the earlier trademark is
well known in India. It further gives that a trademark is cannot be registered if, or to the extent that, its
use in India is liable to be prevented by virtue of any law.

Procedure and Duration of registration

The registrar on the application made by the proprietor of the trademark in the prescribed manner within
the given period of time with the adequate payment of fees. Registration of a trademark shall be of ten
years and renewal of the registered trademark is also for a period of ten years from the date of expiration
of the original registration or of the last renewal of registration.

The registrar shall send the notice before the expiration of last registration in the prescribed manner to the
registered proprietor. The notice mentions the date of expiration and payment of fees and upon which a
renewal of registration may be obtained if at the expiration of the time given in that behalf those
conditions have not duly complied with the registrar may remove the trademark from the register.

But the registrar shall not remove the trademark from the register if implication made within the
prescribed form and the prescribed rate is paid within six months from the expiration of the nal
registration of the trademark and shall renew the registration of the trademark for an interval of ten years.
If the trademark is removed from the register for non-payment of the prescribed fee, the registrar shall
after six months and within one year from the expiration of the last registration of the trademark renew
the registration,

And also on receipt of implication in the prescribed form and on payment of the prescribed fee the
registrar restores the trademark to the register and renew the registration of the trademark, for a period of
ten years from the expiration of the last registration.

International registration of a trademark

The law of trademark passed by the Indian government is applicable only within the territory of India.
The trademark which is registered in has effect only in India, for the protection of trademark in other
countries needs to be registered in another country as well. Each country has its own trademark law with
rules and law for the registration of a trademark in that country. In other words, if an individual desire to
obtain trademark registration in any particular nation then a separate application must be moved in all
such international locations. Within the year 2013, the Indian government agreed to the Madrid
conference which prescribes a methodology of submitting a worldwide application to the contracting
events from India by means of the workplace of the Registrar of Trademark. For example- India’s mobile
phone manufacturing Micromax received 1.25 millionth international trademark registration for its
trademark ‘MICROMAX’ protection in over 110 countries. The international trademark registration for
Micromax led under the Madrid Protocol, under mark can be protected in many jurisdictions by only
ling an application for international registration. There are two methods by which an international
application can be led:
• International application in each foreign country: For the protection of trademark in any
foreign country, an international application must be led to the trademark of ce by following the
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 rules and regulations of that country. For this purpose the applicant must hire a rm dealing in
trademark registration in foreign, the applications to countries which is not a party to the Madrid
system can be led as per above. It provides services that engaging an Attorney in the foreign
countries works closely for registration of a trademark in the foreign country.
• The international application under the Madrid system: The trademark registration may
also be initiated by means of ling an international application under Madrid protocol
before the Registrar of Trademark for different nations. The Indian Trademark of ce
collects international Trademark application and after nding it in conformity with the
Madrid protocol transmits such a global application to the WIPO (World Intellectual
Property Organization), which further transmits it to the situation overseas. Each and every
global software is processed by way of the overseas nation as per their legislation and all
communications are routed by means of Indian executive.
Effect of Registration
The registration of a trademark shall if valid give the exclusive right to the registered proprietor to the use
of trademarks in respect of goods and services of which the trademark is registered, and also to obtain
relief in respect of the infringement of the trademark.

Infringement of trademark
A registered trademark is infringed by a person who not being a registered proprietor or a person using by
way of permitted use in the course of trade, a mark which is identical with or deceptively similar to the
trademark in relation to goods or services in respect of which the trademark is registered. After
infringement, the owner of the trademark can go for civil legal proceedings against a party who infringes
the registered trademark. Basically, Trademark infringement means the unapproved use of a trademark on
regarding products and bene ts in a way that is going to cause confusion, dif cult, about the trader or
potentially bene ts.

Infringement of trademark on the internet

The expansion of the web is also leading to an expansion of inappropriate trademark infringement
allegations. Probably, a company will assert trademark infringement each time it views one among its
trademarks on an online page of a Third party. For example, an individual who develops a website online
that discusses her expertise with Microsoft software could use Microsoft’s trademarks to consult exact
merchandise without the worry of infringement. However, she mainly would no longer be competent to
use the marks in this kind of means as to intent viewers of her internet web page to feel that she is
af liated with Microsoft or that Microsoft is someway sponsoring her net web page. The honour could
simplest be analyzed upon seeing how the marks are sincerely used on the web page. In this way, there is
an infringement of trademark on the internet.

Case laws on Infringement

Hearst company Vs Dalal avenue verbal exchange Ltd.

The courtroom held that a trademark is infringed when a character in the course of trade makes use of a
mark which is same with or deceptively similar to the trademark in terms of the goods in respect of which
the trademark is registered. Use of the mark by using such man or woman needs to be in a manner which
is more likely to be taken as getting used as a trademark.

Amritdhara Pharmacy Vs Satya Deo Gupta,

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 In this case for determining the connection in two words related to an infringement action was stated by
the Supreme Court that there must be taken two words which are deceptively similar. And judge them by
their appearance and by their sound. There must be considered that the goods to which they are to be
utilised. There must be a consideration of the nature and kind of customer who would be likely to buy
those goods. In fact, it must be considered the surrounding circumstances and also must consider what is
likely to occur if each of those trademarks is used in common ways as a trademark for the goods of the
particular owners of the marks.

After considering all those circumstances, they came to the conclusion that there will be confusion. This
is to say that, not signi cantly that one man will be injured and the other will gain the illegal bene t, but it
for that there will be a mess in the mind of the public which will lead to confusion in the goods then there
may be the refusal of the registration.

No action for an unregistered trademark

This is de ned under Section 27 of Act that no infringement will lie with respect to an unregistered
trademark, but recognises the common law rights of the trademark owner to take action against any
person for passing off goods as the goods of another person as services provided by another person or the
remedies thereof.

Passing off

Passing off is common legislation of tort, which can be used to put in force for unregistered trademark
rights. The regulation of passing off prevents one man or woman from misrepresenting other items or
services. The inspiration for passing off has faced some changes in the duration of time. In the beginning,
it was restrained to the representation of one person goods to another. Later it was elevated to business
and non- trading activities. Therefore it used to be additionally accelerated to professions and non-trading
movements. Today it is applied to many types of unfair trading and unfair competitors where the activity
of one person cause damage to another person. The fundamental question on this tort turns upon whether
the defendant’s conduct is such as deceive or mislead the general public to the confusion between the
industry activities of the two.

In British Diabetic organization V Diabetic, both the parties have been charitable societies. Their names
have been deceptively identical. The phrases ‘association’ and ‘society’ both should be considering that
they have been similar in derivation and meaning and were not completely varied in kind. The everlasting
injunction was granted.

Difference between passing off and infringement

The measures for passing off is different from the measures of an infringement. The claim for
infringement is a lawful remedy whereas the claim for passing off is a common law remedy. Therefore, in
order to establish infringement with respect to a registered trademark, it is only required to prove that the
infringing mark is same or deceptively similar to the certi ed mark and no more proof is required. In the
case of a passing off claim, proving that the marks are same or deceptively similar only is not suf cient.

The use of the mark should be likely to mislead or cause confusion. Moreover, in a passing off claim it is
necessary to verify that the use of the trademark by the defendant is expected to cause injury or damage to
the plaintiff’s goodwill, whereas, in an infringement suit, the use of the mark by the defendant must not
cause any injury to the plaintiff. But, when a trademark is registered, registration is given only with
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 respect to a particular category of goods. Protection is, therefore, provided only to these goods. In a
passing off action, the defendant’s goods must not be the same; it may be different.

In, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical laboratories, the Apex court held
that there are some differences between the trial for passing off and trial for infringement of a trademark.
In American Home Products Corpn. Vs. Lupin Laboratories Ltd., the Court held that it is well-settled law
that when regarding the infringement of a registered trademark. It is important to carry in mind the
difference between the search for infringement and the search in passing off the trial. In a passing off
action, the courts seem to see whether there is deception whereas, in infringement matter, it is important
to note that the Trademark Act gives to the owner an exclusive right to the use of the mark which will be
infringed in the case of indistinguishable mark and in the case of related marks, even though there is
deception, infringement can still take place.

In Satyam Infoway Ltd. Vs Sifynet Solutions (P) Ltd. it was held by the Court that to proceed action for
passing off three elements are required to be established, which are as follows:
• In a trial for Passing off, as the expression passing off itself suggests, is to restrict the defendant
from passing off its goods or services to the public which of the plaintiff’s. It is a claim not only
to preserve the status of the plaintiff but also to protect the public. The defendant must have
traded its goods or given its services in a manner which was deceived or would be likely to
deceive the public into thinking that the defendant’s goods or services are the plaintiffs.
• That second element that must be established by the plaintiff is a misconception by the defendant
to the public and what has to be placed in the possibility of confusion in the minds of the public
that the goods or services offered by the defendant are the goods or the services of the plaintiff. In
assessing the possibility of such confusion the court must allow for the ‘imperfect recollection of
a person or ordinary memory’.
• The third element of a passing off action is loss or the possibility of it.
Notwithstanding, trademark registration under the Act only has effect in India. To get trademark rights
and protection in other countries it is required to register the trademark in those countries. Trademark
protection is regional in nature. A single registration will have to be made in every country where
protection is wanted. To get protection outside India, it is required to le applications in the respect of the
countries individually. In enhancement, there should be registration in a country before you begin the use
of the trademark in that country. In some countries such as China, Japan, Continental Europe, and
Indonesia, the rst person who applies for registration will get the rights of a trademark, rather than the
person who rst uses the trademark. Hence, the different party could legitimately take trademark by
applying for registration even if there is the rst person using the trademark.

Expanding boundaries of the scope of trademark

Domain name

Every company on the internet has a domain name with a different address in cyberspace at which the
website is located. Nowadays companies have internet pages as the producer and consumer are far away
located as well as every company is going global. The other purpose is that the Internet has become an
essential tool in marketing. The rule came to be revealed as IP numbers are hard to remember therefore
they came up with the Domain Name System.

A user of the internet will nd the domain name very useful in nding the goods or services that he
expected to nd. But sometimes a distinct name of a highly commended business may be allowed and
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 passed off as the original one, For example, Tata, Google and Maruti. People visit a website or domain
name through a website or a URL. Cybercrime generally means the registration of another party’s mark as
a domain name for the purpose of misuse. A domain name has to be related to the product given and it has
to be different. While choosing a domain name for a website it is desirable that it should be different. A
high level of distinctiveness is allowed that two domain names could not be alike. Two types of disputes
that occur which concerns with the domain name.

(i) That both the parties have the legal right to forming the words for the domain name in use. In this way,
the court decides that who is the original owner and who the infringer is.

(ii)The second type is cyber piracy where a party with no legal right questions the real owner. In this type
of problem, there is a number of ways by which a trademark owner can ght with cyberpiracy.

Smell

It is a non-traditional type of trademark. There is a large problem in registering this type of trademarks as
there is no physical representation. Due to its high level of distinctiveness, for example, the smell of a
perfume strawberry etc., it is dif cult to register this kind of trademark. Smell marks are accepted if they
are represented with a graphical representation. But this provision is only in some countries. Smell the
trademark is protected under copyright. In some instances a particular scent is also a commodity by itself
in other circumstances it is a scent used or attached to the commodity not the natural smell of the product
itself.

Sound

A sound may be trademark and can also be registered. A sound mark is a sound or a theme with a different
identi cation effect. A well-known sound mark is music owned by Hemglass. When applying for a sound
mark the mark can be expressed by a sound le or by an accurate description of the sound in notation.

Shape

Distinguishing the one product from another assures that the customer doesn’t get confused by similar
products. The shape of goods registered as a trademark as long as the shape is not working. A shape is
working if it affects the use or performance of the product. The shape of goods can be a trademark if,
• The shape doesn’t superior working.
• The shape has become connected with public and manufacturer.
A shape of goods may be registered as a trademark when the shape is not working. Thus if a certain shape
is delicate more than useful in daily life and serves no purpose then it may be registered.

Conclusion
Intellectual Property re ects the meaning that it’s subject body is the product of the mind or the intellect.
As it’s the product of a productive and creative mind, It can be traded, purchased, given and reserved. All
this can be done but there are issues related that to be dealt. Trademarks are very important aspects of
Intellectual Property so, the protection of the trademark has become essential in the present day because,
every generator of a good or service will want his mark to be different, eye-catching and it should be
easily distinguishable from others.

Designing a mark like this is dif cult and after this when infringing of the mark takes place it will cause
maximum dif culty to the producer. Capital Protection is very important and there should be a step
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 towards Global Intellectual Property Order, if there is no IPR protection, it can be explained that inventive
activity will terminate. The reason for Intellectual Property protection is that it can arouse creativity and
discovery and prevent the exploitation of inventions.

Public policy here points at keeping an Intellectual Property system which promotes innovation through
protection initiatives, while at the same time assuring that this is not at the value of societal interests. In
this meaning, the challenge for the World Intellectual Property Organisation would be to include public
policy effects in applications carried out with developing countries, such as increasing awareness of
exibilities in existing international intellectual property treaties.

Intellectual Property is not an unusual concept, in fact, it is a concept which is discussed in everyday life
whether a movie, book, plant variety, food item, cosmetics, electrical gadgets, software’s etc. It has
become a concept of pervasiveness in everyday life. The World Intellectual Property Day on 26th April
every year.

Introduction

Italian Parmigiano, Mexican Tequila, French Roquefort, Bikaneri Bhujia, Kolhapuri Chappals, Mysore
Silk are all some examples of Geographical Indications and appellations of everyday life. The
Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act), in Section 2(e),
de nes the term “geographical indication” as –

“An indication which identi es such goods as agricultural goods, natural goods or manufactured goods
as originating, or manufactured in the territory of a country, or a region or locality in that territory,
where a given quality, reputation or other characteristic of such goods is essentially attributable to its
geographical origin and in case where such goods are manufactured goods one of the activities of either
the production or of processing or preparation of the goods concerned takes place in such territory,
region or locality, as the case may be.”

This is the legally accepted de nition of geographical indication in India since the Act came into force
since the 15th of September, 2015.

In simpler terms, GI is a status accorded to a good which is unique to a particular region or area,
and are originated from there. These goods have a reputation for their quality. They are associated with
a sense of legitimacy and trust simply because they have the tag of belonging to that region. For example,
Basmati rice is known for its unique aroma and long grains. It is unique to the Indo-Gangetic plains.
Seven states of India, after a long drawn legal battle have been accorded with the status of Geographical
Indication (GI) in 2016.

The following types of goods are covered under the ambit of GI –

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 • Agricultural (example, Basmati rice)
• Natural (example, Makrana marble)
• Handicraft or of any industry (example, Kashmiri pashmina)
• Food stuff (example, Dharwad pedha)
This has been mentioned in Section 2(g) of the GI Act.

The abovementioned goods are easily associated with the place where they are manufactured or grown.

Legal Aspect of Geographic Indication (GI)

Origin of GI From an International Perspective

The laws relating to GI were introduced in India after the rati cation of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement was signed by all the
WTO member countries as a “single undertaking”. A single undertaking, for WTO, is basically an
agreement signed by all the member nations.

The TRIPS agreement sets a minimum standard of protection for goods registered under as a GI, which is
supposed to be followed by all members of the World Trade Organization (WTO). The purpose of
according the status of GI to goods, as per Article 22 (2)(b) of the agreement, is to prevent “an act of
unfair competition” and prevention of misstatement regarding the geographical origins of a good, as per
Article 22 (2)(a).

Article 22 of the TRIPS Agreement (agreement), which was signed in 1994, was criticized on the grounds
for not being comprehensive enough for all goods. Article 23 accords special protection to wines and
spirits.

In case of goods other than wines and spirits, the TRIPS agreement accords protection only to the
producer in case of any explicit act of misleading the public by trying to pass off a good as a GI protected
good, and not otherwise. Following this, Section 10 of the GI Act says that a “homonymous geographical
indication may be registered under this Act, if the Registrar is satis ed, after considering the practical
conditions” no con ict in terms of public understanding of the goods arises.

But for wines and spirits, even if the misuse of a good does not mislead the public, Members are supposed
to make provisions for the protection of wines and spirits simply “eligible” for such protection. Many
countries, including India had asked for an extension to the same to include other more useful goods into
its ambit, among other demands.

Article 23(1) states that if the name of a wine or spirit, which has been accorded the status of GI is “used
in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like”,
even that will be considered a blatant violation of the agreement.

The extension of the agreement, as demanded by various countries including India, has not been provided
completely. Although, in 2013, the agreement was amended to become more friendly towards Least
Developed Countries (LDC).

Indian GI laws and Jurisdictions

The Geographical Indications of Goods (Registration and Protection) Act, 1999, along with the
Geographical Indications of Goods (Registration and Protection) Rules, 2002 govern GI registrations and
goods.
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 According to Section 58(1) of the GI Act, in any case where the validity of the registration of a
geographical indication is questioned, the case would be under the jurisdiction of the Intellectual
Property Appellate Board.

Further, Section 66 (1)(c) of the GI Act vests the jurisdiction of hearing the cases of infringement upon
“any court inferior to a district court having jurisdiction to try the suit”. Section 67 of the GI Act states
that injunction, nominal damages and damages on account of pro ts may be awarded as per the
discretion of the judge, at the option of the plaintiff.

The Act, under Section 55, further states that “no suit or other legal proceedings shall lie against any
person in respect of anything which is in good faith done or intended to be done in pursuance of this Act”.

Geographical Indications Registry in Chennai has complete jurisdiction over the GI goods in India,
including, but not limited to, their registration and application process. The Intellectual Property
Appellate Board (IPAB) has the appellate jurisdiction. It is also based in Chennai. The website of the
IPAB boasts of being the only tribunal in India which has an international in uence. This was visible in
the case of Basmati rice involving the Lahore Growers Association (elaborated upon in later sections).

Status quo Before the GI Act

Before the passing of the GI Act, any remedy for any infringement of geographical indication rights were
awarded through passing off action under tort law or under the Trade and Merchandise Marks Act, 1958,
which has been repealed and replaced by the Trade Marks Act, 1999.

Examples from India

Darjeeling Tea

In the present day, India is one of the largest producers of tea in the world and has recorded its highest
ever production in the nancial year 2015-16, with exports crossing 230 mn kg after about 35 years. India
started producing tea under British rule. The rst GI ever granted in India was to Darjeeling Tea
Plantation was started in the 1840’s under the supervision of the British, as they wanted to give
competition to the Chinese monopoly in the market.

The Tea Board of India was established under the Tea Act, 1953. The tea board owns all the intellectual
property rights under the Trademarks Act, 1999, Geographical Indications of Goods (Registration &
Protection) Act, 1999 and Copyright Act, 1957. The logo and even the title, Darjeeling Tea, have been
protected by IP laws. Darjeeling Tea is a recognized Trademark even in countries like China, Australia,
Egypt, Lebanon, USA and so on.

Basmati Rice

Basmati rice is a special type of rice, with long grains and a unique aroma which differentiates it from
other varieties of rice. It is found in the Indo-Gangetic Plains. Basmati rice has been a part of intense GI
con ict between various states, and even nations like Pakistan and the United States.

RiceTec, a Texas-based company, developed ‘Texmati’ or ‘American Basmati’, which they patented under
the United States Patent and Trademark Of ce (USPTO). This was challenged by a few Indian NGOs
claiming that the term “basmati” could only be used for rice grown in India and Pakistan. After presenting
all the evidence, the NGOs won, and RiceTec withdrew its key claims.
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 India and Pakistan haven’t been known to agree on many issues, and GI registration of basmati rice isn’t
one of the exceptions. The Basmati Growers Association (BGA) Lahore argued that the tag of Basmati
can only be accorded to the rice grown in the territory of Pakistan. They further argued that they had been
producing the rice for a longer time, and hence, they have more right to be accorded the GI registration.
Although India and Pakistan had initially applied for a joint Basmati GI tag, the efforts were thwarted due
to the stand of the GBA.

BGA led a case under the Intellectual Property Appellate Board (IPAB), Chennai against the claim of
Agricultural and Processed Foods Export Development Authority (APEDA) who wanted registration for
seven Indian states. IPAB “is the only tribunal in India which has a global impact” according to their
website.

The IPAB has directed the GI Registry to accord the tag of GI to Basmati rice produced in seven states,
namely, Punjab, Haryana, Himachal Pradesh, Uttarakhand, parts of Uttar Pradesh and Jammu & Kashmir.
This has been after years of legislative battles. Madhya Pradesh is still demanding GI registration for the
rice grown in some of their districts.

Scotch Whisky

In 2006, the Scotch Whisky Association (SWA) led a suit against Golden Bottling Limited for
geographical indications infringement. The defendant was manufacturing “Red Scot” which was allegedly
misleading for the consumers. The case of Scotch Whisky Association v. Golden Bottling Limited was
heard by the Delhi High Court in 2006. The de nition of “Scotch Whisky” under UK Scotch Whisky Act,
1988 and the Scotch Whisky Order, 1990 accorded the status of a geographical indication to the product.
But, since the same was not accorded the status of GI in India, the court could not go by that de nition.
Section 20(1) of the GI Act protects unregistered GIs against any suit instituted. So action was available
only in form of the tort of passing off.

The case was settled outside of the courts. Later, in 2015, the government recognized Scotch whisky as
per the de nition under Section 2(e) of the GI Act.

Is GI Relevant to Businesses or Just Communities

Most of the applicants of GI are from rural backgrounds. The tea growers of Darjeeling, whose interests
are represented by the Tea Board in legislative matters, have seen nancial advantages after Darjeeling
Tea was accorded the GI status. Darjeeling tea was the rst product to be accorded the status in
India.

The commercial and social advantages are interrelated in this case. The makers of the Darjeeling tea
can charge a higher price for their product as they do not have to face outside competition. Without being
accorded the status of a geographical indication, the tea growers would have to face competitions from
outside, including big companies with a lot of capital on their hands.

Most goods which apply for GI registration originate from rural areas. GI registration can also be seen as
a commercial medium for rural empowerment and employment generation. Commercialization of a
unique product leads to the product turning generic and the market prices falling down, along with the
quality in most cases. This is avoided by according the GI status.

What Are The Advantages of a Registered GI

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For a Producer:

A producer of a good which has been accorded the status of a geographical indication has various
commercial advantages. The producer becomes the sole seller of the commodity, and in the case of
having a single “principal place of business” can even be said to have a monopoly.

According to rule 3 of the Geographical Indications of Goods (Registration and Protection) Rules, 2002, a
“principal place of business” is basically the place from where the business regarding the GI registered
good takes place. If multiple places are occupied for the purpose of business, they are included. The term
also applies for those goods which have not been accorded the status as per the Act.

GI registration provides the registered producer and the authorized user the exclusive right to protect the
registered GI on the speci ed goods. GI registration is a producer friendly legislation, aimed at protecting
the industry for unique goods, whose uniqueness exists due to their geographical location. GI, as a type of
Intellectual Property (IP), has a lot of commercial value.

For a Consumer:

A good which has a GI tag is associated with immense reputation in terms of quality and prestige. A
consumer gets value for their money when they buy a good with a GI tag, as the tag ensures that the
product has all the features associated with it. For example, the taste of real Darjeeling tea is different
from that of those trying to pass of their products as the same.

The majority of goods applying for GI Registration belong to the micro, small and medium enterprises,
which majorly originate from the rural areas. GI registration aids the enterprises to increase their market
share, which otherwise would have been dominated by the large businesses. Hence, the consumers get
authentic goods instead of generic and mass produced goods.

How to Register a Good as GI

• Types of Applications:
• Ordinary – For registration of a GI in India.
• Convention – Registration of a GI, which is already recognized in another country.
• Single Class – Includes the registration of goods belonging to a particular class of goods.
• Multi Class – Includes the registration of goods belonging to multiple classes of goods.
• The registration process for the GI tag begins with ling of an application for the same. The
Geographical Indications registry demands that the “application must be made in triplicate”.
• The applicants may be the producer(s) of the respective goods themselves, or any organization or
authority which have the permission to act as the agent of the producer(s).
• The application must be led to the of ce of the GI registry, which is in Chennai.
• The application must contain all the relevant details like –
• The details of the “principal place of business”, de ned under Section 3 of the Geographical
Indications of Goods (Registration and Protection) Rules, 2002.
• Historical evidence to back the claims.
• A detailed description of the good and its usage.
• The method of production.
• Other relevant details for determining the GI status of the good.
• The application will be subjected to scrutiny by the Registry and a panel of experts, which
would be designated by them.
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 • The applicant will have the time of one month to remedy the errors, if any.
• The Registrar is further vested with the powers to rescind the application if the errors are not dealt
with.
• Upon the acceptance of the application, the Registry will publish the same within three months of
the acceptance.
• Any person can le an opposition to the publication of the GI application within three months
(extension can be provided for another month).
After the acceptance of the application, the date of ling of the application will be the date of registration.
A certi cate with the seal of the GI registry shall be issued to the applicant. Appeal against the registration
can be made to the Intellectual Property Appellate Board within three months of the registration of the
good.

Section 9 of the Geographical Indication of Goods (Registration and Protection) Act, 1999 names a few
exceptions, which cannot be registered under the GI Registry. These are the goods which –

5. May cause confusion or deceive the public

6. May be scandalous in nature
7. Are contrary to the law in force at the time
8. May hurt religious sensibilities
9. Are generic i.e. not unique
Important Points Regarding GI Registration
• A registered GI shall be valid for 10 years and can be renewed on payment of renewal fee.
• The application must be addressed to the Geographical Indications Registry, Chennai.
• The applicant must have an address for service in India.
• Generally, application can be led by (1) a legal practitioner, (2) a registered agent.
Transfer of GI

Section 24 of the GI Act states that the GI tag cannot be transferred to any other user under any
condition. Only in case of the death of the authorized user, the rights of the GI shall “devolve on his
successor in title under the law for the time being in force”.

Renewal of GI
• A request for the renewal of a GI can be led by the authorized user of the GI at any time within
the last six months of the previous registration period.
• If no such request is led before the Registrar, then the Registrar shall notify the user after one
month, and before three months of the expiry of the GI.
• The application can further be made within six months after the expiry of the earlier time period
of GI, which, if not done, can lead to cancellation of the GI.
• The corresponding form for renewal is called GI-1, and is available on the website http://
www.ipindia.nic.in/.
• The required fee for every class of GI is INR 5000 for renewal.

Homonyous GI
The concept of "homonymous" geographical indica ons (GIs) refers to situa ons where the same or
similar geographical names are used to designate di erent products origina ng from di erent places. In
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 other words, homonymous GIs involve mul ple geographical indica ons that share a common name but
represent dis nct products associated with di erent geographic areas.
This situa on can lead to poten al con icts and challenges, especially when consumers may be confused
about the origin and characteris cs of the products. It emphasizes the importance of clear and accurate
labeling, as well as e ec ve protec on and management of geographical indica ons to avoid misleading
consumers and to maintain the dis nc veness of each product associated with a par cular region.
Countries and regions with geographical indica on protec on systems o en have mechanisms in place
to address issues related to homonymous GIs. These mechanisms may involve establishing clear
de ni ons and speci ca ons for each GI, allowing coexistence under certain condi ons, or, in some
cases, priori zing one GI over another based on historical or qualita ve factors.
Resolving homonymous GI issues typically requires coopera on and coordina on among relevant
authori es, producers, and stakeholders to ensure fair compe on and the preserva on of the
reputa on and authen city of products linked to speci c geographical regions.

What is a Trademark and How is it Different From a GI

Section 2(zb) of the Trade Marks Act, 1999 says ““trade mark” 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 colors”.

A trademark is basically a symbol which is unique to a person, company, good etc. This symbol is
capable of differentiating it from other objects or persons. For example, Nike’s trademark is in the form of
a tick. The layman, and even the authorities associate that particular tick Nike.

A trademark can be associated with objects, companies etc., while a GI can only be associated with a
particular geographical location.

Conclusion

India is a land full of diverse cultures and goods. Each state and even district has their own culture and
produce goods unique to that area. A lot of the goods originate uniquely from that area, but not all are
accorded the Geographical Indication status as per the de nition under Section 2(e) of the Act. A lot of
consideration is put into the applications by the GI Registry. The recent case of Basmati rice is a clear
example of how the GI registrations affect not only our nations but others too.

The Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) was the multilateral
agreement which brought the issue of geographical indications into the forefront in India. The TRIPS
agreement, although very substantial and well written, has been criticized on the basis of the fact that it
doesn’t accord the same level of protection to other commodities as the level accorded to “wine and
spirits”. India was one of the countries asking for an extension to the protection accorded under the
agreement after the Uruguay Round of General Agreement on Trade and Tariff (GATT) in 1994.

The TRIPS Agreement has been amended to include other pressing matters like making provisos for Least
Developed Countries (LDCs), however, the issue of according the same level of protection as wines and
spirits to other goods has not been addressed appropriately yet.
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India has a very comprehensive registration process for Geographical Indications, which has incorporated
the democratic principles of our Constitution. It has ample provisions for challenging of the registration of
goods under the GI Act.

According to the Controller General of Patents, 285 goods were registered as GI in the period of
2009-15 and 224 were in the examination process. This further reiterates the popularity and need of GI
registrations in India.

DESIGNS ACT,2000

Introduction

In our day to day life, we encounter various objects which we can recognize by observing their design.
Products which are artistically designed can grab the attention of the customer the moment they see it.
These designs can take the form of Art, drawings, graphics etc. These designs may be created by
professionals which includes engineered designs or architectures blueprints for any property, interior
designs etc.

The term ‘design’ does not include any procedures such as mode of construction of an article. Earlier this
Act was governed by Design Act, 1911. So as to bring the Design Act at par with International Law
enactment of the new act came into being. Presently, design laws are maintained by the Design Act, 2000.

Intellectual property laws in India cover the rights related to trademarks, copyrights, patents, designs and
geographical indications of goods. The basis of this Act was ‘ rst to le, rst to get’ system which means
that an innovator or owner of any design should le an application to register the same as soon as possible
to prevent it from piracy and for claiming certain rights over that particular design.

Design act 2000

Earlier this Act was governed by the Design Act, 1911. In order to bring the Design Act at par with the
International law the enactment of the Design Act, 2000 took place. So, presently the design laws are
regulated by the Design Act of 2000. It is an Act to consolidate and amend the law relating to the
protection of designs. It was published in the Gazette of India and came into force on 12.05.2000. This
Act is a complete code in itself and is statutory in nature. It extends to the whole of India.

Design act 2000 de nition

“Design” means features of shape, pattern, con guration, ornament or composition of colors or lines
which is applied in three dimensional or two dimensional or in both the forms using any of the process
whether manual, chemical, mechanical, separate or combined which in the nished article appeal to or
judged wholly by the eye.

What it does not include?

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 • It does not include any mode of construction or any trademark as de ned under clause (v) of sub-
section (1) of Section 2 of the Trade and Merchandise Marks Act, 1958.
• It does not include ‘property mark’ as de ned in section 479 of the Indian Penal Code, 1860.
• It does not include any artistic work as de ned in clause (c) of section 2 of the Copyright Act,
1957.
Origin and development of design act in India
• The origin of the Design Act in India traces back to the British period.
• The rst Act that gave privileges and protection to designs was the Patent and Designs Act, 1872.
This Act supplemented the Act of 1859 which was passed by the Governor-General of India to
protect industrial designs and grant privileges to inventors.
• The Inventions and Designs Act of 1888 repealed this Act of 1872.
• The Act of 1888 was a re ection of the Designs Act of the United Kingdom.
• In the year 1911, the British government enacted a new law in the form of the Patent and Designs
Act repealing all the prior legislations.
• In 1930, this Act was amended and the government came up with some changes in the process of
registration of designs in which the concept of new and original design changed to the new or
original design.
• This legislation used to govern the matters related to both patents as well as designs.
• In 1970, the Patent Act was enacted to deal with the matters of patent speci cally. All the
provisions regarding patents from this Act were repealed and it continued to deal with Industrial
designs till 2000.
• India became a member state of the WTO in the year 1995. Consequently, the Patents and
Designs Act of 1911 was repealed and a new act called the Designs Act, 2000 was enacted in
compliance with TRIPS (Trade-Related aspects of Intellectual Property Rights) to make design
laws for the country.
• This new Act was enforced on 11th May 2001.
Salient features of design act 2000
• India is a member of the World Trade Organization’s Paris Convention. It has signed the Patent
Cooperation Treaty which allows all the signatories of the convention to claim priority rights.
• Under the Act of 2000, Locarno classi cation has been adopted in which the classi cation is
based only on the subject matter of design. Under the previous provisions, the classi cation was
made on the basis of the material which has been used to make that material.
• The introduction of “Absolute Novelty” makes it possible to judge a novelty on the basis of prior
publication of any article. This is applicable in other countries also.
• As per the new law, a design can be restored which was absent in the previous enactment. Now,
the registration of a design can be restored.
• The Act allows the district courts to transfer cases to the high courts where the jurisdiction is
present. It is possible only in cases where a person is challenging the validity of any registration.
• Laws regarding the delegation of powers of the controllers to other controllers and the duty of
examiner are also mentioned in the new Act.
• The quantum of punishment is also enhanced under the Act in case of any infringement.
• The secrecy of two years of a registered design is also revoked.
• Provisions regarding the avoidance of certain restrictive conditions are also there so as to regulate
anti-competitive practices in contractual licenses.
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 • Whenever a license is brought within the domain of public records and that too publicly, the
registration is likely to be taken into consideration. Anyone can get a certi ed copy of it in order
to inspect the same.
• The laws regarding the substitution of the application before registering a design are also
mentioned in the new enactment.
• Under new provisions, power has been given to district court to transfer cases to the high court
where the court is having jurisdiction. This is only possible if the person is challenging the
validity of the design registration.
• Incorporates the provisions regarding delegation of powers of the controller to other controllers
and duty of examiner.
• Under the new provision, the quantum of punishment is also enhanced in case of infringement.
• It revokes the secrecy of two years of a registered design.
• It contains provisions for the avoidance of certain restrictive conditions so as to regulate anti-
competitive practices within contractual licenses.
• The registration is taken into consideration when it is brought within the domain of public records
that too physically. Anyone can inspect the records and get a certi ed copy of it.
• It contains provisions for substitution of the application before registering the design.
Objectives of design act 2000
• The primary objective of the Design Act is to protect the designs.
• The Design Act 0f 2000 is an Act to consolidate and amend the law relating to the protection of
designs.
• Its main objective is to protect new or original designs from getting copied which causes loss to
the proprietor.
• The important purpose of design registration is to see that the creator, originator or artisan of any
design is not deprived of his reward for creating that design by others copying it to their goods or
products.
• An industrial design helps in drawing a customer’s attention and helps in increasing the
commercial value of an article. Therefore, helps in expanding its market.
• There are many competitors who adopt evil ways to reduce the competition in the rival groups by
exploiting the designs to their advantage. Thus, it is necessary to have laws to safeguard the
interests of the owners of these designs. In order to ful ll this objective, the Design Act of 2002
came into existence.
What is design all about?

The term ‘Design’ under Design Act is de ned as :

“Features of shape, any con guration, pattern, ornament or composition of lines or colours which is
applied to Two dimensional or three dimensional or in both the forms using any process including
manual, chemical or mechanical, separate or combined which in the nished article appeal to or judged
solely by the eye.”

It neither includes any mode of construction nor any trademark as de ned under clause (v) of sub-section
(1) of section 2 of Trade and Merchandise Marks Act, 1958. It even does not includes property mark as
de ned in section 479 of the Indian Penal Code or any artistic work as de ned in clause (c) of section 2 of
the Copyright Act, 1957.[1]

With reference to the Design Act, 2000 what are articles?

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 Under the provisions of Design Act, 2000, any manufactured object is known to be “article”. The object
can be of any substance irrespective of arti cial or natural. The article must be capable of being made and
sold separately.

Essential Requirements for registration

Novelty and originality

A design can be considered for registration only if they are unique. A combination of previously
registered design can also be considered only if the combination produces new visuals. In a case Hello
Mineral Water PVT. LTD. v. Thermoking California Pure, a design of water dispenser having a
cylindrical shape was not considered as new on the grounds that mere shape and form is not suf cient to
prove novelty.

Design must be unique, a Prior publication is not acceptable

The design must not be a published one. If the design is already published than the design is not eligible
for the publication. There should not be any tangible copy available already in the market if you are
seeking registration of the design that is in digital format. Displaying of the design in any fashion show by
the creator is the publication of that design. Secret and private use of the design does not amount to the
publication and can be used for the experimental purpose.

It was held in Kemp and company v. Prima Plastics LTD. that disclosure of design by the proprietor to
any third person cannot be claimed as publication provided that the disclosure must be in good faith.

Making application of design to an Article

The applicability of the design should be to the article itself. It can be informed of a three-dimensional
gure. There are two-dimensional gures also included in this act i.e any painting or any graf ti on the
walls or print on the bedsheets.

The design must not be contrary to the order and morality

The design must be registrable under the Design Act, 2000. It must not be prohibited by the Government
of India or any institution so authorized. The design must be capable of registering under Section 5 of this
act. The design which can cause a breach of peace and may hurt the sentiments of the people may not be
allowed to get register.

What is to be considered to register under this Act?

Looking forward to registering a design under Design Act, 2000, one must ensure following features in
your design which are:
• The work must be capable of selling and made separately.
• It must be original and new to the market. The plagiarised design will not be considered under
this act.
• It should be purely distinguishable from other designs.
• It must not relate to obscenity or any material which is inappropriate.
Rights of the proprietor of the design

When a proprietor applies for the registration of the design he shall automatically get ‘copyrights in
design’ for the period of 10 years from the date of registration. This period can be extended if the
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 proprietor wants to continue with the design. The Design Act should not be confused with the Copyrights
act because there are many products which can be registered under both the acts but their remedies cannot
be sought in both the acts individually.

Who is entitled to seek Registration?

As per the provisions of Design Act, 2000 any proprietor who is seeking registration of a design which is
original and unpublished previously in any country which does not seems to be contrary to any law and
order of that country can le an application for registration. A proprietor as per Section 2(j) includes that
person who

10. is the author of that design

11. acquired design for a valid consideration and
12. Any person to whom the design has been devolved from the original proprietor.
In case there is more than one author than the design must be applied by the joint authors only.

Locarno classi cation

Locarno agreement is an agreement as per which the designs are registered under the Act. It classi es
goods for the purpose of registering them which helps in Design searches. It divides designs into different
classes which are mainly function-oriented.

Procedure for registration of design in India

Chapter 2 of the Design Act deals with the registration of designs and the procedure to be followed for
the same. The following steps must be followed:
• An application for the registration shall be made in the patent of ce in the prescribed form along
with the prescribed fee. The class in which the design is to be registered must be speci ed in the
application and the article(s) to which it is to be applied. There are separate applications which
need to be led for each class of article.
• The controller will give the application for examining it so as to check whether the design is
capable of being registered or not. If everything seems perfect then the controller will accept the
application and proceed further.
• If there is any objection, then the applicant or his agent will be asked to make necessary
amendments so as to register the design and nullify the objection.
• If the objection does not get removed within three months after the hearing, the application will
be withdrawn and it must be noted that
Application for registration of designs

The application for registration of designs is given under Section 5 of the Design Act, 2000.
• The controller registers a design under this Act after verifying that the design of any person,
claiming to be the proprietor, is the new or original design not previously published anywhere and
is not against any public policy or morality. Provided that such a design should be capable of
being registered under this Act.
• The applications under the Act shall be led in the Patent Of ce in the prescribed manner along
with the prescribed fee for lling the form.
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 •
The design should be registered in a speci c class and not in more than one class. In case of any
doubt regarding the class in which the design should be registered, the Controller will decide the
matter.
• The controller may even reject any design and not register it. In such a case, the person aggrieved
may le an appeal before the High Court.
• If any application is not complete within the prescribed time limit owing to the fault of the
applicant then it shall be abandoned.
• A design when registered shall be registered as of the date of the application for registration.
A wide variety of items that can be registered under the Act include cutlery, dresses, etc.

Items that cannot be registered as a design under the Act

•
Signs, emblems or ags of any country.
•
Size of any article, if changed.
•
Structures and buildings.
•
Integrated circuits’ layout designs.
•
Trade variations.
•
Any principle or mode of construction of any article such as labels, tokens, cartoons, cards, etc.
•
Books, calendars, certi cates, jackets, forms-and other documents, greeting cards, maps and plan
cards, postcards, lea ets, stamps, medals, dressmaking patterns.
• A mechanical contrivance.
• Workshop alterations of components of an assembly.
• Parts of any article which is not manufactured and sold separately.
Duration of the registration of a design

The total time for which a design can be registered is 15 years. Initially, it was 10 years, which could be
extended for another 5 years by paying a fee of Rs. 2000 to the Controller but it should be done before the
expiry of that 10 years period. The proprietor of any design may even le an application as soon as the
design gets registered for such an extension.

Appeal for cancellation of the registration of a design

The registration of any design can be canceled anytime after it gets registered by ling a petition for such
cancellation in Form 8 along with a fee of Rs. 1,500 to the Controller.

The grounds for such cancellation are as follows:

• The design has been already registered in India previously.
• It has been published in India or somewhere else before the date of registration.
• The design is not original or new.
• It is not registrable under the Act.
Entitlement of registration under design act 2000

According to the Design Act of 2000, a proprietor who wants to get his design registered and it is original
and is not published previously anywhere in any country and the one which does not seem to be clashing
to any law and order of that country, can le an application for getting the design registered. A proprietor
includes the persons who:
• Is the author of the design;
• Has acquired the design for a valid consideration and
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 • Anyone to whom that design has been devolved from the original titleholder.
In case if there is more than one author of the design, then the design must be applied by the joint authors.

Copyright in registered designs

After the registration of a design, the proprietor shall have the copyright of the design for 10 years from
the date of registration.

If you want to extend the copyright period for the second period of 5 years then before the expiry of the
original said ten years an application must be led in the Controller’s of ce along with the prescribed fee.

Register of designs

A book named ‘Register of Designs’ shall be kept at the Patent Of ce which contains all the details
regarding the registered designs such as names, addresses of proprietors of registered designs,
noti cations and transmissions of designs and other important information. Such register must be
maintained wholly or partly on computer diskettes or oppies as may be prescribed.

Importance of Design

A design re ects someone’s intellect and creativity which afterward becomes a product. The design of any
product makes a long-lasting effect on the consumers’ minds. A design helps the consumers to recognize
any product. If a design is attractive then it adds value to the business of that product. Thus, in order to
protect a design from infringement, it is necessary to get it registered under the Designs Act, 2000. A
mechanism has been pre-determined by the government to ful ll this purpose.

It adds value to the product and helps in gaining fair returns on investment. It gives you fair competition
in the market.

Infringement of design

Just like any other Intellectual Property, the designs are also prone to infringement and they can also be
copied by the competitors or some other person. If a design has been copied then the owner of that design
can claim damages and can also apply for an injunction so that the design cannot be used further.

If there arises any question regarding the ascertainment of infringement then the Court will directly look
for the design from the point of view of an average customer. In other words, the Court will consider
whether there is any confusion which is obvious or some material facts in the minds of the customers
regarding the two articles.

Industrial design infringement cases

In Disney Enterprises Inc. v. Prime Housewares Ltd., the international registration of industrial designs
became a matter of con ict in India. A Mumbai based company Prime Housewares used to manufacture
characters like Mickey Mouse, Donald Duck, etc. a suit was led by the Disney enterprises for the
infringement of their international registered designs.

The court held that the plaintiff’s trademark is protected but not the designs under the Indian law. An
order was passed by the court for the infringement of the trademark of the enterprises. The Indian
company was asked to deliver all the infringing material to the enterprises so that it could not be used
further.
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 Piracy of registered designs

Section 22 of the Designs Act, 2000 deals with the piracy of registered designs. According to this section,
any obvious or fraudulent imitation of a design which is already registered without the consent of its
proprietor is unlawful. It also prohibits the import of any material which closely resembles a registered
design.

This section also provides that in case if a civil suit is brought against any piracy of a design, then the
compensation shall not exceed Rs. 50,000 for the infringement of one registered design. The
compensation is statutorily xed so it serves a good ground for an interim injunction even before the trial
commencement.

In the case of Bharat Glass Tube Limited v. Gopal Gas Works Ltd., the respondents (Gopal Glass Works)
had registered their design for diamond-shaped glass sheets and had a certi cate of the same. The
appellants started using this design for marketing. These designs were made in collaboration with a
German company.

After knowing that the appellants are using their design, they moved to the Court. The appellants
contended that the respondents’ designs were not new since the German company had been using it since
1992 and it was already published in the U.K. Patent Of ce so it lost its originality. When the matter went
to the High Court on appeal then it restored the designs to the respondents. When the matter reached the
Supreme Court, it upheld the decision of the Calcutta High Court.

Conclusion

Design Act, 2000 brings about many changes which are observed in the features. When a developer
develop something for example If an architect develops the structure of a building there is an expectation
that my structure will not be infringed. Many designs are capable of providing the author with copyrights
also.

In that case infringement of both cannot be claimed separately. The owner must have to choose which is
more bene cial. High intellects are involved in making a design look good and have an everlasting
impact. Government come up with a great policy of protecting designs. Moreover, these designs can also
have a negative impact on the value of the business if infringed. A good design is always remembered.

Protection of Plant Varieties and Farmers Rights Act, 2001

Introduction

To accommodate the foundation of a powerful framework for the assurance of plant assortments, the
privileges of farmers and plant raisers and to energize the improvement of new assortments of plants, it
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 has been viewed as important to perceive and to ensure the privileges of the farmers in regard of their
commitments made whenever in preserving, improving and making accessible plant hereditary assets for
the advancement of new plant assortments. The Government of India sanctioned “The Protection of Plant
Varieties and Farmers’ Rights (PPV&FR) Act, 2001” receiving sui generis framework.

This Indian enactment isn’t just incongruous with International Union for the Protection of New Varieties
of Plants (UPOV), 1978, but it also has adequate arrangements for securing the interests of open division
reproducing foundations and the farmers. The Act takes account of the commitments of both farmers and
breeders in plant breeding and also provides for the implementation of TRIPs, which underpin the
particular nancial interests of many partners including private, open and review organizations, and of
farmers obliged to acquire property.

The genesis : the Protection of Plant Varieties and Farmers’ Rights

In India, rural and agricultural research including the advancement of new plant assortments has to a great
extent been the worry of the legislature and open section organizations. Prior to this, India didn’t have any
enactments to secure the plant assortments and, truth be told, no prompt need was felt. Notwithstanding,
after India became a signatory to the Trade-Related Aspects of Intellectual Property Rights Agreement
(TRIPs) in 1994, such an enactment was required. Article 27(b) of this agreement requires the part nations
to accommodate insurance of plant assortments either by a patent or by a viable sui generis framework or
by any mix thereof.

Subsequently, the part nations had the decision to outline enactments tting their own framework and
India practiced this choice. The current Indian Patent Act, 1970 avoided agribusiness and agricultural
strategies for creation from patentability. The sui generis framework for insurance of plant assortments
was created coordinating the privileges of reproducers, farmers and town networks, and dealing with the
worries for impartial sharing of advantages. It offers adaptability with respect to ensured genera/species,
level, and time of insurance when contrasted with other comparable enactments existing or being planned
in various countries. The Act covers all the classi cations of plants, with the exception of
microorganisms. The general and types of protection assortments will be informed by the gazette
following the implementation of the Act in accordance with the appropriate guidelines and regulations.

History of the Protection of Plant Varieties and Farmers’ Rights Act

The Protection of Plant Varieties and Farmers’ Rights Act was enacted in 2001 and discussions took place
in the nation after drawing on how licensed innovation rights ought to be presented in Indian horticulture
after the nation joined the World Trade Organization in 1995 and consented to actualize the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The decision before India had to take was to either sanction a law that ensured the interests of cultivating
networks or to acknowledge the system of plant reproducers’ privileges given by the International Union
for Protection of New Plant Varieties (UPOV Convention). The last alternative was dismissed basically in
light of the fact that the current adaptation of UPOV, which was embraced in 1991, denied the farmers the
opportunity to reuse ranch spared seeds and to trade them with their neighbours.

Along these lines, in The Protection of Plant Varieties and Farmers’ Rights Act, India presented a section
on Farmers’ Rights, which has three legs:
• one, farmers are perceived as plant raisers and they can enlist their assortments;
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 • two, farmers occupied with the protection of hereditary assets of landraces and wild family
members of nancial plants and their improvement through choice and safeguarding are
perceived and remunerated; and
• three, ensuring the customary acts of the farmers of sparing seeds from one gather and utilizing
the spared seeds either for planting for their next reap or offering them to their homestead
neighbours.

Objectives of the Protection of Plant Varieties and Farmers’ Rights Act, 2000

The objective of the act acknowledges, to set up a compelling framework for the insurance of plant
assortments, the privileges of farmers and plant reproducers, and to energize the advancement of new
assortments of plants. To perceive and secure the privileges of farmers in regard to their commitments
made whenever monitoring, improving, and making accessible plant hereditary assets for the
advancement of new plant assortments.

To quicken rural advancement in the nation, ensure plant reproducers’ privileges and to animate
speculation for innovative work both in the open and private part for the improvement of new plant
assortments. To encourage the development of the seed industry in the nation which will guarantee the
accessibility of top-notch seeds and planting material to the farmers.

Implementation of the Act

To execute the arrangements of the Act the Department of Agriculture, Cooperation and Farmers Welfare,
Ministry of Agriculture, and Farmers Welfare built up the Protection of Plant Varieties and Farmers’
Rights Authority, 2001. The chairperson is the chief executive of the authority. Other than the chairperson,
the authority has 15 individuals, as advised by the Government of India (GOI). Eight of them are ex-
of cio individuals speaking to different departments/ministries, three from SAUs and the State
Governments, one delegate each for farmers, ancestral association, seed industry, and ladies association
related with horticultural exercises are assigned by the Central Government. The Registrar General is the
ex-of cio member secretary of the authority.

General functions of the Authority

• Registration of new plant assortments, basically inferred assortments (EDV), surviving
assortments;
• Developing DUS (Distinctiveness, Uniformity, and Stability) test rules for new plant species;
• Developing portrayal and documentation of assortments enlisted;
• Compulsory listing of ces for all assortment of plants;
• Documentation, ordering, and listing of farmers’ assortments;
• Recognizing and remunerating farmers, network of farmers, especially inborn and provincial
network occupied with protection and improvement;
• Preservation of plant hereditary assets of nancial plants and their wild family members;
• Maintenance of the national register of plant varieties; and
• Maintenance of the National Gene Bank.
Convention countries

Convention countries implies a nation which has consented to a global show for the security of plant
assortments to which India has likewise acquiesced or a nation which has the law of assurance of plant
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assortments based on which India has gone into an understanding for allowing plant raisers’ privileges to
the resident of both the nations. Any individual if applies for the enlistment of an assortment in India
within a year after the date on which the application was made in the show nation, such assortment will,
whenever enrolled under this Act, be enlisted as of the date on which the application was made in show
nation and that date will be esteemed with the end goal of this Act to be the date of enlistment.

Plant Varieties Protection Appellate Tribunal

There is a momentary arrangement by which it is given that until the PVPAT is built up, the Intellectual
Property Appellate Board (IPAB) will practice the ward of PVPAT. Therefore, the Plant Varieties
Protection Appellate Tribunal (PVPAT) has been set up by delegating technical members. All requests or
choices of the registrar of authority identifying with an enrollment of assortment and requests or choices
of the registrar identifying with enlistment as specialist or licensee can be bid in the Tribunal. Further, all
requests or choices of authority identifying with advantage sharing, renouncement of an obligatory
permit, and installment of pay can likewise be offered in the Tribunal. The choices of the PVPAT can be
tested in the High Court. The Tribunal will discard the intrigue inside one year.

International Union for Protection of New Plant Varieties (UPOV Convention)

The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental
association with a home of ce in Geneva (Switzerland). UPOV was built up by the International
Convention for the Protection of New Varieties of Plants. The Convention was received in Paris in 1961
and it was changed in 1972, 1978 and 1991. The strategy of UPOV is to ensure compelling plant safety
arrangements to enable the improvement of new plant ranges to promote society. The UPOV Convention
gives the premise to individuals to support plant rearing by giving raisers of new plant assortments, a
licensed innovation right: the producers correct.

In the instance of an assortment ensured by a raiser’s correct, the approval of the reproducer is required to
proliferate the assortment for business purposes. The reproducer’s privilege is conceded by the individual
UPOV individuals. Only the reproduction of another plant assortment can ensure that new plant
assortment. It isn’t allowed for somebody other than the raiser to get insurance for an assortment. There
are no limitations on who can be viewed as a reproducer under the UPOV framework, a raiser may be an
individual, a farmer, an analyst, an open organization, a privately owned business, and so forth. However,
India isn’t apart as a member.

Notable highlights of the Act

Authority

The Central Government will set up an Authority to be known as the Protection of Plant Varieties and
Farmers’ Rights Authority. It will consist of a director and fteen individuals as delegates of various
concerned services and of ces, seed industry, farmers associations, inborn networks, and State-level
ladies’ association, and so on.

Eligibility

For an assortment to be quali ed for enrollment, it must t in with the standards of curiosity, peculiarity,
consistency, and strength (NDUS), as portrayed beneath under Section 15 (1)– (3):
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 For the motivations behind the Act, another assortment will be esteemed to be:

(a) The novel, if, at the date of documenting of the application for enlistment for insurance, the
engendering or collected material of such an assortment has not been sold or in any case discarded by or
with the assent of its raiser or his replacement for the reasons for misuse of such assortment.

(i) In India, sooner than one year,

(ii) or outside India, on account of trees or vines sooner than six years, or, in some other case, sooner than
four years, before the date of documenting such applications.

Given that a preliminary of another assortment that has not been auctioned or in any case arranged off
will not in uence the privilege of insurance.

Given further the way on the date of documenting the application for enrollment, the spreading or
collected material of such assortment has gotten a matter of basic information other than through the
previously mentioned way will not in uence the rules of an oddity for such assortment.

(b) Distinct, on the off chance that it is obviously recognizable by at any rate, one basic trademark from
whatever other assortments whose presence involves basic information in any nation at the hour of
documenting the application.

(c) Uniform, if subject to the variety that might be normal from the speci c highlights of its spread, it is
adequately uniform in its basic attributes.

(d) Stable, if its basic qualities stay unaltered after rehashed engendering or, on account of a speci c
pattern of proliferation, towards the nish of each such cycle. The assortment will be exposed to such
uniqueness, consistency, and solidness tests as will be endorsed.

Application structure

Each application for enlistment should go with the accompanying data as mentioned in Section 18 (a–h)]:

(a) division allowed to such assortment by the candidate;

(b) an oath depended on the candidate that such assortment doesn’t contain any quality or quality
arrangement including eliminator innovation;

(c) the application ought to be in such structure as might be determined by guidelines;

(d) total visa information of the parental lines from which the assortment has been determined alongside
the topographical area in India from where the hereditary material has been taken and all such data
identifying with the commitment, assuming any, of any farmer, town network, foundation or association
in reproducing, advancing or building up the assortment;

(e) an announcement containing a short portrayal of the assortment, drawing out its qualities of curiosity,
uniqueness, consistency, and strength as required for enrollment;

(f) such charges as might be endorsed;

(g) contain an assertion that the hereditary material or parental material procured for reproducing,
advancing or building up the assortment has been legitimately gained; and
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 such different points of interest might be endorsed. The conditions expressed over (a–h), will not have
any signi cant bearing in regard to utilization for enrollment of farmers’ assortments.

The time period of protection

The authentication of enlistment given under Section 24 or subsection 9 of Section 23 will be legitimate
for a long time on account of trees and vines and six years on account of different harvests and might be
investigated and restored for the rest of the period on an installment of such charges as might be xed by
the principles made for this sake subject to the conditions that the absolute time of legitimacy will not
surpass.

(i) on account of trees and vines, eighteen years from the date of enrollment of the assortment;

(ii) on account of surviving assortments, fteen years from the date of the warning of that assortment by
the Central Government under Section 5 of the Seed Act, 1996, and

(iii) in the other case, fteen years from the date of enrollment of the assortment.

Installment of annual charge

The authority may, with the earlier endorsement of the Central Government, by notice in the Of cial
Gazette, force an expense to be paid yearly, by each reproducer of an assortment, operator and licensee
thereof enlisted under this Act decided based on advantage or sovereignty picked up by such raiser,
specialist or licensee, by and large, in regard of the assortment, for the maintenance of their enrollment
under this Section 35(1) of the act.

Breeder’s right

The testament of enrollment for an assortment given under this Act will present a restrictive right on the
raiser or his replacement or his specialist or licensee, to create, sell, advertise, appropriate, import, or fare
the range under the Section 28 (1) of the Act.

Researchers’ right

The researchers have been given access to secured assortments for true blue exploration and research
purposes mentioned under Section 30 of the Act. This Section states, ‘Nothing contained in this Act will
forestall (a) the utilization of any assortment enrolled under this Act by any individual utilizing such
assortment for directing investigations or exploration; and (b) The use of a range by any person as an
underlying source for a diverse assortment gave rise to the requirement of approval of the raiser of the
range when the recurrent use, as parental line, of such range is important in the creation of such a newly
created range.’

Farmers’ right

The farmers’ privileges of the Act characterize the bene t of farmers and their entitlement to secure
assortments created or rationed by them [Chapter VI of the Act]. Farmers can spare, use, sow, resow,
trade, offer and sell ranch produce of a secured assortment with the exception of the offer under a
business advertising game plan (marked seeds) mentioned under the Section 39(1)(i)–(iv) of the Act.
Further, the farmers have likewise been given assurance of blameless encroachment when, at the hour of
encroachment, a farmer doesn’t know about the presence of reproducer rights mentioned under Section 42
of the Act.
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 A farmer who is occupied with the protection of hereditary assets of landraces and wild family members
of monetary plants and their improvement through choice and conservation, will be entitled in an
endorsed way for acknowledgment and award from the Gene Fund, gave the material so chosen and
protected is used in assortiments registered in accordance with the Act as a contributor of qualities.

The normal execution of an assortment is to be revealed to the farmers at the hour of an offering of seed/
spreading material. A farmer or a gathering of farmers or an association of farmers can guarantee pay as
per the Act if an assortment or the proliferating material neglects to give the normal execution under
given conditions, as asserted by the raiser of the assortment.

Communities rights

The privileges of the networks as characterized, accommodate remuneration for the commitment of
networks in the advancement of new assortments in quantum to be controlled by The Protection of Plant
Varieties and Farmers’ Rights Act Authority under Section 41 (1) of the Act.

Registration of essentially derived varieties

The breeder of the basically determined assortment will have indistinguishable rights from the plant
reproducer of other new assortments, which incorporate creation, selling, promoting, and dissemination,
including fare and import of the assortment. The other quali cation standards for grant of enrollment are
likewise equivalent to for new assortment enlistment under Section 23(1), (6) of the Act.

Compulsory license

The authority can give an obligatory permit if there should be an occurrence of any objections about the
accessibility of the seeds of any enrolled assortment to open at a sensible cost. The permit can be
conceded to any individual intrigued to take up such exercises after the expiry of the time of three years
from the date of issue of declaration of enlistment to embrace creation, dissemination, and offer of the
seed or other engendering material of the assortment under the Section 47(1) of the Act.

Bene t-sharing

Sharing of advantages accumulating to a breeder from an assortment created from indigenously

determined plant hereditary assets has likewise been given under Section 26(1) of the Act. The authority
may welcome cases of advantage sharing of any assortment enrolled under the Act and will decide the
quantum of such honor in the wake of nding out the degree and nature of the advantage guarantee, in the
wake of giving a chance to be heard, to both the plant raiser and the claimer.

Legitimately procured parental material

Section 18(j) in regards to information to be submitted alongside an application, requires the candidate to
con rm that the hereditary or parental material utilized for reproducing the assortment has been
legitimately procured. Such a revelation would be troublesome in situations where the identi cation data
identifying with the material has not been recorded. Further, it would not generally be feasible for a raiser
to get data identifying with the commitment of a rancher, town network, and so on since there may not be
a bona de wellspring of such data. Such data, if not accessible, might be left to the Authority to
conclude, which can welcome cases later through media/open noti cation, and so on.
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National Gene Fund

The National Gene Fund to be comprised under the Act will be credited thereto:

(a) The advantage of sharing from the raiser.

(b) The yearly expense payable to the authority by a method of eminences.

(c) By the remuneration given to the networks as characterized under Section 41(1).

(d) Contribution from any national and global association and different sources.

The fund will be applied for disbursing shares to bene t claimants, either individuals or organizations,
and for compensation to village communities. The fund will also be used for supporting conservation and
sustainable use of genetic resources, including in situ and ex-situ collection, and for strengthening the
capabilities of the panchayat in carrying out such conservation and sustainable use, under Section (45) of
the Act.

Integrated implementation

There is a requirement for the viable and incorporated usage of different new acts/bills concerning
biodiversity, condition, and seed, which have some interphases due to the regular wear, that is the ‘seed’.
These are in the zone of advantage, sharing components for conservers of agro-biodiversity and the
foundation of a store for cases of advantage sharing. The Biological Diversity Act (2002), and a seed Act
(the Seed Act is under amendment) could be incorporated and successfully integrated for smooth
implementation simultaneously and through the management of conservation and access to biodiversity
and the protection of plant varieties and farmer rights Act. Albeit, some covering issues have been shifted
through to bring congruity between the Seed Act and The Protection of Plant Varieties and Farmers’
Rights Act, in the New Seed Policy 2002, usage of The Protection of Plant Varieties and Farmers’ Rights
Act and Biological Diversity Act might be t further.

Consideration for effective implementation of the Act

India has opted for a sui generis system of protection of plant varieties and has provided for farmers’
rights, breeders’ rights, researchers’ rights, and equity concerns in the same legislation. All these
provisions in one legislation make it a unique Act when compared to similar legislations in other
countries. Although, a few countries have provided for farmers’ rights, all types of rights for farmers, viz.
as a breeder, conserver, seed producer and consumer have not been considered elsewhere in the world. It
is this uniqueness of the Act which poses many challenges for its effective implementation. The balance
between breeders’ rights and farmers’ rights could be tough to strike. A critical analysis of the provisions
in the Act is therefore essential for its effective implementation.

Way forward

The Protection of Plant Varieties and Farmers’ Rights Act is a successful sui generis framework creating
harmony between plant reproducers’ privileges alongside ranchers’ privileges and specialists’ privileges.
The act of little, minimal ranchers to trade the gathered material with others is fundamental for their work
and rehearsals to a vast extent both in India and the major part of Asia-Paci c’s creative nations. All
endeavors are being made by The Protection of Plant Varieties and Farmers’ Rights Act, Authority to
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 actualize various arrangements of The Protection of Plant Varieties and Farmers’ Rights Act and
furthermore to make the accessibility of value seeds of enlisted assortments yet, in addition, to help ranch
families for preservation and reasonable utilization of hereditary assets remembering for situ and ex-situ
assortments and for reinforcing the ability of the partners in completing such protection and feasible use.

The ranchers can exploit this Act to get IPR on their developments as enhancements in plant assortments
and furthermore for their work in their land race and customary assortment protection and preservation. A
portion of the signi cant dif culties which we predict are:
•
Popularization of farmers’ job in preservation and advancement of new assortment and readiness
of database of the equivalent for granting ranchers and cultivating networks and enrollment of
farmers’ assortments.
• Mainstreaming and commercialization of enlisted ranchers’ assortments.
• Noti cation of ranchers’ assortments under Seeds Act, 1966.
Conclusion

As of late, the Government of India in their National Intellectual Property Rights Policy has demonstrated
the number of lings and enlistments by the Protection of Plant Varieties and Farmers’ Rights Authority
requesting to offer help to different partners for expanded enrollment of new, surviving and basically
determined assortments of plants. It has additionally underscored to set up joins between the Authority
and Agricultural Universities, Research Institutions, Technology Development, and Management Centers,
and Krishi Vigyan Kendras and encourage the advancement of seeds and their commercialization by
ranchers. It makes the authority increasingly capable of concentrating on techniques for mainstreaming of
enlisted ranchers’ assortments and to take reproducers rights as visualized in the Protection of Plant
Varieties and Farmers’ Rights Act, 2001, to each concerned partner and make India as a harbinger in the
execution of not exclusively ranchers’ privileges yet additionally the raisers’ privileges.
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