LEGAL ASPECT OF BUSINESS

Trimester - 2

MET’s INSTITUTE OF COMPUTER SCIENCE

TRIMESTER - II

SUBJECT: Legal Aspect Of Business

TOPIC:
Copyrights, Patent, Trademark, Geographical Indications as a part of Intellectual Property Rights in India (with respect to TRIPS as in WTO)

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INDEX

Sr. No.

Topic

Page No.

1

Intellectual Property

03

2

TRIP

05

3

Copyrights

10

4

Trademark

24

5

Geographical Indication

39

6

Patent

52

7

Conclusion

64

8

Bibliography

66

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INTELLECTUAL PROPERTY RIGHTS
Definition Intellectual property rights can be defined as the rights given to people over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time. Intellectual property rights are divided into two main categories: 1. Copyright and rights related to copyright: i.e. rights granted to authors of literary and artistic works, and the rights of performers, producers of phonograms and broadcasting organizations. The main purpose of protection of copyright and related rights is to encourage and reward creative work. 2. Industrial property: This includes the protection of distinctive signs such as trademarks and geographical indications, and industrial property protected stimulate innovation, design and the creation of technology. Different Types of IPRs         Trademarks and Service Mark Industrial Design Registration Copyright Layout Designs for Integrated Circuits Geographical Indications Trade Secrets and Undisclosed Information Competitive Practices in Contractual Licenses Patents

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LEGAL ASPECT OF BUSINESS Need to protect IPRS

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Intellectual property protection is critical to fostering innovation. Without protection of ideas, businesses would not reap the full benefits of their inventions and would focus less on research and development. Similarly, artists would not be fully compensated for their creations and cultural vitality would suffer as a result. Piracy, counterfeiting and the theft of intellectual property assets pose a serious threat to all American businesses. Exporters face unfair competition abroad, non-exporters face counterfeit imports at home and all businesses face legal, health and safety risks from the threat of counterfeit goods entering their supply chains.

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TRIPS AGREEMENT
History Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value — for example brand named clothing or new varieties of plants. Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are ―intellectual property rights‖. They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brand names and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole. Formation The extent of protection and enforcement of intellectual property rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically. The WTO‘s TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires
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and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. And, when there are trade disputes over intellectual property rights, the WTO‘s dispute settlement system is now available The TRIPS Agreement, came into effect on 1st January 1995 and is to date the most comprehensive multilateral agreement on intellectual property. The areas of intellectual property that it covers are:        copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; undisclosed information including trade secrets and test data. Agreement on TRIPS Structure of the agreement The trips agreement builds on the main international conventions on IPRs by incorporating most of their provisions. Its further provides that countries may in pursuance of these conventions guarantee higher protection that is required by the Trips Agreement, as long as it does not contravene its provisions.

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LEGAL ASPECT OF BUSINESS Provisions of TRIPS i.

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how basic principles of the trading system and other international intellectual property agreements should be applied

ii. iii. iv.

how to give adequate protection to intellectual property rights how countries should enforce those rights adequately in their own territories how to settle disputes on intellectual property between members of the WTO special transitional arrangements during the period when the new system is being introduced. Features of the TRIPS agreement

i.

Standards. In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO, the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) in their most recent versions, must be complied with.

ii.

Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.

iii.

Dispute settlement. The Agreement makes disputes between WTO Members in respect of TRIPS obligations sub ject to the WTO's dispute settlement procedures.

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The starting point of the intellectual property agreement is basic principles. 1. National treatment: treating one‘s own nationals and foreigners equally. 2. Most Favoured Nation (MFN): equal treatment for nationals of all trading partners in the WTO. 3. The TRIPS Agreement has an additional important principle: intellectual property protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says. Concept of ‘Most-favoured’ This sounds like a contradiction. It suggests special treatment, but in the WTO it actually means non-discrimination— treating virtually everyone equally. This is what happens. Each member treats all the other members equally as ―most-favoured‖ trading partners. If a country improves the benefits that it gives to one trading partner, it has to give the same ―best‖ treatment to all the other WTO members so that they all remain ―mostfavoured‖. Most-favoured nation (MFN) status did not always mean equal treatment. The first bilateral MFN treaties set up exclusive clubs among a country‘s ―most-favoured‖ trading partners. Under GATT and now WTO, the MFN club is no longer exclusive. The MFN principle ensures that each country treats it‘s over 150 fellow-members equally.

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WIPO
Objectives and main activities The World Intellectual Property Organization (WIPO) is the United Nations specialised agency that coordinates international treaties regarding intellectual property rights. Its 184 member states comprise over 90% of the countries of the world, who participate in WIPO to negotiate treaties and set policy on intellectual property matters such as patents, copyrights and trademarks. WIPO was established in 1967 by the WIPO Convention, which states that WIPO‘s objective was ―to promote the protection of intellectual property throughout the world …‖. WIPO currently administers 24 treaties and facilitates the negotiation of several proposed treaties covering copyrights, patents and trademarks. The nine strategic goals were adopted by Member States in the Revised Program and Budget for the 2008/09 Biennium.They are:
       

Balanced Evolution of the International Normative Framework for IP Provision of Premier Global IP Services Facilitating the Use of IP for Development Coordination and Development of Global IP Infrastructure World Reference Source for IP Information and Analysis International Cooperation on Building Respect for IP Addressing IP in Relation to Global Policy Issues A Responsive Communications Interface between WIPO, its Member States and All Stakeholders

An Efficient Administrative and Financial Support Structure to Enable WIPO to Deliver its Programs although WIPO administers 24 treaties that deal with intellectual property rights, the World Trade Organisation (WTO) administers what is arguably the most important treaty on the subject, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Unlike WIPO treaties, the TRIPS Agreement includes powerful enforcement

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mechanisms such as trade sanctions and litigation before the World Court that force countries into compliance with the provisions in the agreement. Standards of Protection The second part of the TRIPS agreement looks at different kinds of intellectual property rights and how to protect them. The purpose is to ensure that adequate standards of protection exist in all member countries. Here the starting point is the obligations of the main international agreements of the World Intellectual Property Organization (WIPO) that already existed before the WTO was created. In some cases, the standards of protection prescribed were thought inadequate. So the TRIPS agreement adds a significant number of new or higher standards. The standards for protection are explained in detail under each sub-topic of the TRIPS agreement. Transition arrangements: 1, 5 or 11 years or more When the WTO agreements took effect on 1 January 1995, developed countries were given one year to ensure that their laws and practices conform with the TRIPS agreement. Developing countries and (under certain conditions) transition economies were given five years, until 2000. Least-developed countries had 11 years, until 2006— now extended to 2013 in general, and to 2016 for pharmaceutical patents and undisclosed information. If a developing country did not provide product patent protection in a particular area of technology when the TRIPS Agreement became applicable to it (1 January 2000), it had up to five additional years to introduce the protection. But for pharmaceutical and agricultural chemical products, the country had to accept the filing of patent applications from the beginning of the transitional period (i.e. 1 January 1995), though the patent did not need to be granted until the end of this period. If the government allowed the relevant pharmaceutical or agricultural chemical to be marketed during the transition period, it had to — subject to certain conditions — provide an exclusive marketing right for the product for five years, or until a product patent was granted, whichever was shorter.

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Subject to certain exceptions, the general rule is that obligations in the agreement apply to intellectual property rights that existed at the end of a country‘s transition period as well as to new ones.

COPYRIGHT
Meaning Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. Copyright is basically the right to copy and make use of literary, dramatic or musical artistic works, cinematographic films, records and broadcasting, computer programs and software. Copyright is a proprietary right, which accrues on the creator as soon as the work is created. The idea in the work does not need to be new but the form, be it literary, artistic, scientific, in which it is expressed must be the original creation of the author. In India the first copyright Act was passed in the year 1914. At present, the Copyright Act, 1957 governs copyright law in India. The original Act of 1957 has been amended in the year 1983, 1984, 1992, 1994 and 1999. Tenure for Copyright A copyright is not protected in perpetuity. The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication. For performer‘s right, the tenure for Copyright is 50 years (however it was 25 years prior to the amendment made in 1999) Indian Copyright law

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In India the first Copyright Act was passed in 1914. It was a replica of the English Copyright Act of 1911, suitably modified to make it applicable to the then British India. The Act presently in force was legislated in 1957 and is known as Copyright Act, 1957 as amended by Copyright (Amendment) Act, 1999. It adopted many principles and provisions contained in the UK Act of 1956. Rights Requiring Authorization of Copyright Owners of copyright in a protected work have a right to exclude others from using it without authorization. Often described as exclusive rights to authorize others to use the protected works. The acts usually requiring the authorization of copyright owners is listed as below:       Reproduction rights: copying and reproducing the work Performing rights: Performing the work in public (Play or concert) Recording rights : Making a sound recording of the work (Eg: gramophone records or phonograms in the technical language of copyright law) Motion picture rights: Making a motion picture (Cinematographic work) Broadcasting rights: Broadcasting the work by radio or television Translation and adaptation rights: Translating and adapting the work.

In addition to these exclusive rights of an economic character, copyright laws provide original authors moral rights. These rights enable authors even after they have transferred their economic rights, to claim authorship of the work and to object any distortion or other derogatory action in relation to the work, which would be prejudicial to their reputation and honor.

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Provision of TRIPs Agreement The main provisions on copyright and neighbours rights are contained in the Berne and Rome conventions. The TRIPS Agreement complements these provisions, particularly in relation to:   Computer programs and databases Rental rights to computer programs, sound recording, films and literary works, audio visuals Computer programmes [TRIPS, Article 10] The agreement provides that computer programs should be considered literary works and protected under national copyright laws. Rental Rights [TRIPS, Article 11] The Agreement requires countries to provide authors of computer programmes, sound recording and cinematographic films ― the right to authorize or prohibit the commercial rental‖ of their copyright works. A member country ―shall be expected from this obligation in respect off cinematographic works unless such rental has led to widespread copying of such works, materially imparing the exclusive right to reproduction conferred on authors‖ Copyright (Amendment) Act, 1994 The Copyright (Amendment) Act, 1994 came into force with effect from May 10, 1995 and some of the salient features thereof are listed below: (i) A comprehensive definition for "computer programme" (reading as follows has been introduced : "Computer programme" means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium capable of causing a computer to perform a particular task or achieve a particular result"
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As under the earlier Act, computer programmes continue to be treated as "literary works". (ii) In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created is the "author". (iii) A for knowing use of infringing copy of computer programme prescribing imprisonment new offence has been added in the Act for a term which shall not be less than 7 days but which may extend to 3 years and with fine ranging from Rs 50,000 (US $ 1,500 approx.) to Rs 200,000 (US $ 6,000 approx.) Where the computer programme has not been used for gain or in the course of trade or business the court may not impose any sentence of imprisonment and may instead only impose a fine up to US $ 1,500. stipulates that certain acts, which when done without the license of the owner of such right, shall (iv) Every "broadcasting organisation" has been conferred with a special right known as "broadcast reproduction right" which shall subsist until 25 years from the beginning of the calendar year in which the broadcast is made. The Act be deemed to have infringed such right. (v) Certain acts which do not constitute infringement of copyright the important one being "the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy (i) in order to utilize the computer programme for the purpose for which it was supplied; or (ii) to make back-up copies purely as a temporary protection against loss, destruction or damage . However, the copyrights amendment Act of 1999 extends copyright protection to performers from the present twenty-five years to at least fifty years computed from the end of the calendar year in which the performance took place. It further empowers the Government to extend the provisions of the Copyright Act to broadcasts and performances made in other countries provided those countries extend similar protection to broadcasts and performances made in India.

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Main Features of the Copyrights Act of 1957 1. Creation of a copyright Office and a copyright board to facilitate registration of copyright and to settle certain kinds of disputes arising under the act and for compulsory licensing of the Copyright. 2. Definition of various categories of work in which copyrights subsists and the scope of the rights conferred on the author under the act. 3. Provision to determine the first ownership of copyright in various categories of works. 4. Term of copyright for different categories of work 5. Provisions relating to assignment of ownership and licensing of copyright including compulsory licensing in certain circumstances. 6. Provisions relating to performing right of or by societies 7. Broadcasting rights 8. International copyright 9. Definition of infringement of copyright 10. Exception to the exclusive right conferred on the author or acts, which do not constitute infringement. 11. Authors special rights 12. Civil and criminal remedies against infringement - A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts. 13. Remedies against groundless threat against legal proceedings

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Copyright Infringement Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act. The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. 1 lakh. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Copyright Act. Copyright in a work shall be deemed to be infringed 

When any person, without a license granted by the owner of the Copyright

Does

anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright . 

When any person - Make for sale on hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or Distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or By way of trade exhibits in public, or Imports into India, any infringing copies of the work: Provided that nothing shall apply to the import of one copy of any work for the private and domestic use of the importer.

Explanation – For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".

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Caselets: Case: Angelina Jolie sued by Journo for Copyright Violation Issue: Infringement on Book – The Subject Work Year: 2011 Angelina Jolie is being sued for copyright violation by Croatian Journalist James Braddock, who claims her movie ‗In the Land of Blood and Honey‘ is based on his book ‗The Subject Work’. In a lawsuit filed in a federal court in Illinois, Mr. Braddock claims he met with producer Edin Sarkic, who is working on Angelina‘s movie several times throughout 2008 to discuss the possibility of his tome being adapted for the big screen. Mr. Braddock is seeking an injunction to block the films scheduled release on December 23, as well as unspecified damages. Copyright Infringement in Cyber Space and Indian Laws The availability of digitized information on internet has raised the issues relating to legal protection of such information because intellectual property, in the form of computer software and digitized entertainment, is a highly tempting target for reproduction and distribution. The digital material in the form of music, graphics, software, and other works can be "copied" and transmitted over the Internet with a remarkable ease and without the author's permission. But copyright law provides protection in respect of digital information, computer programmes, multimedia etc. in cyberspace as well as in the real world. Illegal duplication, file-sharing, linking, framing or use of any type of intellectual property even in cyber space, constitutes copyright infringement in the eye of law. Though copyright infringement on internet has become

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a global issue, we have analysed here the applicability of Indian Copyright Act in order to deal with copyright infringement in cyber space. Section 51 of the Copyright Act, 1957 lays down the provisions relation to the infringement of copyright. It does not expressly provide as to whether such infringement occurred in cyberspace or in physical world. If we read the language of the Section 51 along with the Section 14 of the Copyright Act, 1957 it becomes clear that reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public would amount to the copyright violation under the Act. But, in case of linking or in-lining there is no reproduction of any copyrighted work. The reproduction takes place at the end of the user who visits the linked page via link. Let us explain the copyright infringement in respect of linking, framing and in-lining along with the applicability of Indian Copyright Act, 1957 to deal with these issues. Linking Linking means the joining of any two web pages on Internet. A link is an embedded electronic address that points to another location and takes the user there. A link may lead either to another file in the same website, or to a file on a different computer located elsewhere on the Internet. Before linking deep in to any site it is prudent to first take the permission of the owner of site. On the other hand, in order to prevent unwanted linking the creator of web site should insert a prohibition clause in its terms of use as ― do not link to this site without any express consent of copyright holder of this site .‖ Under Indian Copyright Act, 1957 the legality of framing can be tested by applying the provisions of section 51 read with section 14 of the Act. In case of framing, the framer of the other's site neither reproduces the copyrighted content nor making copy of the same but he provides only a visiting browser with instructions to retrieve the content of that site in to framer's website. Therefore, the framer of site cannot be held liable for unauthorized copying or reproduction of copyrighted work under Indian Copyright Act but he could be trapped under section 57(1) of the Act for infringing the right to integrity of the copyright owner.
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Certain Acts not to be Infringement of Copyrights (Under The Copyright Act, 1957)

(1) The following acts shall not constitute an infringement of copyright namely (a) A fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme for the purposes of – private use, including research, Criticism or review, whether of that work or of any other work. The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy(i) In order to utilize the computer programme for the purposes for which it was supplied, or (ii) To make back up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied;

(b) A fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events- In a newspaper, magazine or similar periodical, or in a cinematograph film or by means of photographs,

(c) The reproduction of a literary, dramatic, musical or artistic work for the purpose of judicial proceeding or for the purpose a report of a judicial proceedings;

(d) The reading or recitation in public of any reasonable extract form a published literary or dramatic work;

(e) The publication in a collection, mainly composed on non copyright matter, bona fide intended for the use of educational institutions and so described in the title and in any advertisement
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issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists; (f) The person making the sound recordings has given a notice of his intentions to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf.

Provided that where the identity of the author of such work, or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, as the case may be, the provisions of this clause shall apply only if such reproduction is made at a time more than fifty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identify is known or, if the identify of more authors than one is known from the death of such of those authors who dies last.

(g) The reconstruction of a building or structure in accordance with the architectural drawings or plans by references to which the building or structure was originally constructed.

Provided that the original construction was made with the consent or licence of the owner of the copyright in such drawings and plans.

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Caselets: Case: Copyright Infringement of Don Movie Product: Movie Don 2 Year: 2011 The makers of Shah Rukh Khan-starrer 'Don-2 - The King is Back', which has got embroiled in the copyright issue, maintain that they have not done anything wrong. The movie is a remake of the Amitabh Starrer ‗Don‘ (1978). Nariman Films, the producers of the original DON have sent a legal notice to Excel Entertainment for copyright infringement, saying that they had only given the right to remake the movie and not a sequel. The producers of the original ‗Don‘ have reportedly alleged that the sequel has infringed upon their original copyright. Shahrukh Khan made it clear that his DON sequel is not at all a stolen piece. The original Amitabh Bachan DON never had a sequel, so there is no question of copying anything as the script is original. Earlier the makers of original Don, starring Amitabh Bachchan have slapped a legal notice at the producers and are dragging Excel Entertainment, Red Chillies and Reliance Entertainment over copyright issue. But on the other hand, Don 2's confident producer Ritesh Sidhwani cleared all airs by tweeting, "About the notice from the original producers of Don, be rest assured that we have done nothing wrong and shall stick to the correct legal and moral principles."

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Copyleft The "reversed 'c' in a full circle" is the copyleft symbol. It is the copyright symbol mirrored. Unlike the copyright symbol, it has no legal meaning. Copyleft describes the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work. In other words, copyleft is a general method for making a program (or other work) free, and requiring all modified and extended versions of the program to be free as well. Copyleft is a form of licensing and can be used to maintain copyright conditions for works such as computer software, documents and art. In general, copyright law is used by an author to prohibit others from reproducing, adapting, or distributing copies of the author's work. In contrast, under copyleft, an author may give every person who receives a copy of a work permission to reproduce, adapt or distribute it and require that any resulting copies or adaptations are also bound by the same licensing agreement. Copyleft licenses (for software) require that information necessary for reproducing and modifying the work must be made available to recipients of the executable. The source code files will usually contain a copy of the license terms and acknowledge the author(s). Copyleft: A Challenge to Software Copyright The legitimacy of copyright is being challenged by an emerging concept of ‗Copyleft‘. The concept originated with Richard Stallman, but came to public attention with the Linux Operating System. Copyleft is opposed to the proprietary nature of copyright. Copyleft basically means that a person has the right to use, modify and distribute software and even improve upon it, without adding any restrictions thereon. As Stallman says, ‗instead of a means of privatizing software, it becomes a means of keeping software free‘.

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A user of the Linux Operating System has an implied license to modify, distribute and improve upon the Linux software. This gives him the opportunity to deal with any bugs and defects in the system immediately, without waiting for an upgrade from the proprietor. It is mainly due to this reason that Linux has over 10 million users worldwide! Another advantage in using the Linux Operating system is that it is cheaper. As compared to Microsoft, a Linux user does not have to pay any license fee for use the Linux operating system or software. Companies are increasingly supporting Linux as over other operating systems. IBM, Dell, Intel, Siemens, Sony, Boeing and even Microsoft itself are using Linux. Types of Copyleft 1. Strong and Weak copyleft Strong copyleft provisions can be imposed to all derived works which means that the first creator of the works has the most rights. The most well known free software license that uses strong copyleft is the GNU General Public License. Strong license is also Design Science License that can apply to art, music, sports photography and video.

Weak copyleft refers to license where not all derived work inherit the copyleft license. Its inherit depends on how it was derived. Weak copyleft licenses are mostly used for software libraries by allowing links to other libraries (GNU Lesser General Public License). Most important users of weak copyright are Mozilla and OpenOffice.org. If author wants no ownership he could just put work in public domain 2. Full and Partial Copyleft "Full" and "partial" copyleft relate to another issue: Full copyleft exists when all parts of a work (except the license itself) may only be modified and distributed under the terms of the work's copyleft license. Partial copyleft exempts some parts of the work from the copyleft provisions, thus permitting distribution of some modifications under terms other than the copyleft license, or

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in some other way does not impose all the principles of copylefting on the work. For example, the GPL linking exception made for some software packages (see below)

Case Study Case: Apple V/S Hong Kong LCD maker Product: iPad Year: 2011 Apple could face a charge of up to US$1.6 billion if it wants to continue using the iPad name for its popular tablet devices in mainland China after a significant copyright infringement court loss to a Hong Kong LCD maker. According to a report in the Chinese state-owned Xinhua news agency, Proview International Holdings, which registered the iPad name in both Taiwan and mainland China in 2000 and 2001 respectively, had sold the Taiwan rights to Apple in 2009 for a mere US$54,000 but not the China rights. Strangely, Apple still attempted to sue Proview for trademark infringement in China, claiming the 2009 sale covered both Taiwan and China. The Municipal Intermediate People's Court in Shenzhen, however, rejected Apple's case. After winning the case, financially struggling Hong Kong-based, Proview Technology, which owns the iPad trademark for China, will now seek compensation from Apple for use of the name. Proview is under debt restructuring administration by a Chinese management consultancy, which now wants to make Apple pay for what will be considered its infringement of Proview's iPad trademark in China. Hejun Vanguard Group, the Chinese management consultant, is quoted as saying that Apple's copyright infringement is clear and that it has been selling iPads in China since September last
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year in defiance of the laws. The more iPads that Apple sells the more compensation it will have to pay Proview, a Hejun spokesman said in Xinhua. Hejun is reportedly seeking $1.6 billion from Apple for the unfettered right to use the iPad trademark. Apple, however, has the right of appeal.

TRADEMARK
Meaning

A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from goods of its competitors. Or in other words a trademark is a word or symbol or combination thereof used by manufacturer or vendor in connection with a product or service. Marketing of a particular good or service by the producer is much better off as by trademark because recognition becomes easier and quality is assured. The owner of the mark can prevent the use of similar or identical signs by competitors if such marks can lead to confusion.Trademark is one of the areas of intellectual property and its purpose is to protect the mark of the product or that of a service. Hence a trademark is defined as a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and may include shape of goods, their packaging and combination of colors ,they include a device ,brand, heading ,label ticket ,name ,signature, word, letter,numeral ,shape of goods, packaging or combination of colors or any combination thereof. The Trademark Act was introduced to provide for registration and better protection of Trademarks and for prevention of the use of fraudulent marks on merchandise. This Law also enables the registration of trademarks so that the proprietor of the trademark gets legal right to the exclusive use of the trademark. The objective of this act was easy registration and better protection of trademarks and to prevent fraud. Trademark Act 1999 was done by the Government of India so that the Indian Trademark Law is in compliance with the TRIPS obligation on the recommendation of the World Trade Organization (WTO). The rules of the Trademark act 1999 are called as Trademark Rules 2002. Both the Act and its set of rules came to effect on

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September 15th 2003. The trademark act 1999 and its trademark rules 2002 presently govern Indian Trademark Laws in India. Tenure and the Renewal of trademark registration The trademark is initially registered for a period of 10 years, which is calculated from the date of filing of the application and in case of convention application, from the date of priority. It can be renewed further after every ten (10) years. The registration is required to be renewed within 6 months before the date of expiry of the registration, i.e., 10 years from the date of the application or subsequent renewals. The failure in renewing the trademark within the stipulated period of time and a grace period of maximum 1 year granted for restoration of the trademark, automatically leads to removal of the trademark from the Register of Trademarks. Non use cause cancellation of trademark If a trademark is not used for 5 years continuously it would become a matter of cancellation of trademark. A particular trademark becomes vulnerable to cancellation on the ground of ―nonuse‖ as soon as a continuous period of 5 years or more have elapsed from the date on which the said mark was actually placed on the register. In other words, the 5 years non-use period is to be calculated from the sealing date or the date on which registration certificate was issued. However, a token sale of a particular product bearing the mark is sufficient to ward-off non-use cancellation proceedings. But there are some special circumstances that can be pleaded to defend a non-use cancellation action. The courts in India have acknowledged certain special circumstances given below which assist in defending a non-use cancelation action. 1. General glut in the market. 2. Lack of demand for the goods. 3. Import restrictions. 4. Wartime restrictions.

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Caselet: Case: Hindustan Unilever Ltd V/S Southern Soap Maker Product: Sunlight Year: Hindustan Unilever Ltd (HUL) lost a trademark case for a 127-year-old soap called Sunlight to a little known southern soap maker. Over a year ago, HUL had dragged the Kerala-based Thai Group to court for ―infringing‖ on the Sunlight brand. The Thai Group is the parent company of Ashique Chemicals and Aghin Chemicals, which manufacture and market detergent brand SunPlus. HUL‘s contention has been that Sun, Sunlight and Sunsilk are its registered trademarks, which Ashique and Aghin had trespassed on. However, the Bombay High Court in its order last week dismissed HUL's interim application on the grounds that the consumer products giant had not used its registered mark for detergent Sun ever since it got it registered 60 years ago. Need of Trademark Registration of trademark is not mandatory but in the present day scenario there is increasing infringement and a lot of cases are challenged so it is advisable to register Trademarks. There is also a need for trademarks to be globally protected. This is said because most have regional or local name brands and most constantly push these weak names while struggling to get global clearance. A trademark can thus be called a device that gives distinctiveness and a mode of identification to a particular product or service. An increasing number of countries also allow for the registration of less traditional forms of trademarks such as single colors, three dimensional signs (shapes of product packaging), audible signs (sounds) or smell. It is said that a trademark
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is a valuable business asset and a marketing tool which could help in financing of the business in a way. A brand is always a trademark but a trademark is not always a brand.

Important Amendment: Special provisions relating to protection of trademarks through international registration under the madrid protocol The new amendments done in The Trademark (amendment) Act, 2010 are as follows: • An amendment to Section 21 of the Trademarks Act, 1999 to do away with the one month discretionary extension that the Registrar could grant in the case of an opposition to an advertised trademark. The amendment therefore restricts the time period to file an opposition to only 3 months from the date of registration which was 4 months earlier. • An amendment to Section 23 of the Trademarks Act, 1999 to ensure that a trademark is registered within 18 months of filing the trademark application. • An amendment to delete Sections 40, 41 & 42 of the Trademark Act, 1999. Section 40 places a restriction on assignment or transmission of trademarks where multiple exclusive rights would be created. Section 41 places a restriction on assignment or transmission where exclusive rights would be created in different parts of India. Section 42 states the conditions for assignments otherwise than in connection with the goodwill of a business. • An amendment to Section 45 of the Trademark Act, 1999 to ensure that a person who has an assignee or licensee of a trademark cannot initiate any trademark infringement proceedings under the Trademark Act, 1999 until such time that the assignment or transmission has been registered with the Registrar of Trademarks under Section 45(1) of the Trademarks Act, 1999. • An amendment to delete Chapter X of the Trademarks Act, 1999. This chapter deals with special provisions for trademarks relating to 'textile goods'.

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• Miscellaneous amendments to Sections 150 and 157 of the Trademarks Act, 1999 in order to ensure consistency in the language of the remaining amendments. Effects of international registration: From the date of the international registration of a trade mark where India has been designated or the date of the recordal in the register of the International Bureau about the extension of the protection resulting from an international registration of a trade mark to India, the protection of the trade mark in India shall be the same as if the trade mark had been registered in India. Duration and renewal of international registration. The international registration of a trade mark at the International Bureau shall be for a period of ten years and may be renewed for a period of ten years from the expiry of the preceding period.

Reasons for the amendments

1. A person desirous of obtaining registration of his trade mark in other countries has to make separate applications in different languages and pay different fees in the respective countries. There is no provision under the Trade Marks Act, 1999 (hereinafter referred to as Trade Marks Act) to facilitate Indian nationals as well as foreign nationals to secure simultaneous protection of trade marks in other countries. 2. The Madrid Protocol, administered by the International Bureau of the World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, was adopted in 1989. The Madrid Protocol is a simple, facilitative and cost-effective system for international registration of trade marks. It enables the nationals of the Member countries of the Protocol to obtain protection of trademarks within the prescribed period of 18 months by filing single application with one fee and in one language in their country of origin, which in turn is transmitted to the other designated countries through the International Bureau. 3. Accession to the Madrid Protocol will entail amendments to the Trade Marks Act. For this purpose, it is proposed to suitably amend the Trade Marks Act and to incorporate therein a new Chapter IVA containing special provisions relating to protection of international registration of trademarks under the Madrid Protocol. It is sought to empower the Registrar of Trade Marks to
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deal with international applications originating from India as well as those received from the International Bureau and maintain record of international registrations. Definitions of new terms are being given. It is further proposed to provide for the effect of international registration, duration and its renewal. 4. It is also proposed to reduce the time period of filing a notice of opposition of published applications from four months to three months for speedy disposal of proceedings. Further, with a view to simplify the law relating to transfer of ownership of trade marks by assignment or transmission and to bring the law generally in tune with international practice and modern business needs. Types of Trademarks There are basically four types of trademarks:1. Service Mark- Service Marks are marks used in any form of service business where actual goods under that mark are not traded. Services are identifying the source of Service provided by Company/Firm/Individuals. Services are offered and purchased. ExInsurance, Education, Transport, Building construction etc. 2. Collective Mark- The collective mark is different from other trademarks as a collective mark distinguishes the goods or services of members of an association of persons from the goods or services of others. The association is registered as proprietor of the trademark and the members who use the marks can do if they fulfill regulations, which are filed together with the application users. Use by members, referred to as authorized users, is deemed to be the use by the proprietor. 3. Certification Mark- Certification mark is a mark that certifies that goods and/or services of another meet certain very specific standards of quality. Ex: ISI MARK, AGMARK etc. 4. Trade Dress- The literal meaning of Trade Dress is - the overall image of a product used in its marketing or sales that is composed of the nonfunctional elements of its design, packaging, or labeling (as colors, package shape, or symbols). That means there is a specific way of writing any product name, its unique background and other remarkable signs. The concept of trade dress has much importance in a country like India where one
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third of the population is still illiterate. Trade dress helps the illiterate people who cannot read the trademark on the product as well as the manufacturers to reach the people easily.

The salient features of the Indian Trademarks Act, 1999 i. With the Trade Marks Act, 1999, being brought into force on September15, 2003, India has made a step towards fulfilling its international obligations. Consequently, the Indian trademark law has now become fully compatible with the International standards laid down in the TRIPS Agreement. The New Act primarily consolidates and amends the old Trade & Merchandise Marks Act, 1958 and provides for better protection of goods and services. The extended and salient features of the New Act are the following: ii. The definition of Trademark has been expanded to encompass any mark capable of distinguishing the goods and services of one, from the goods and services of another and may include any mark capable of graphical representation including aspects of shape of goods, their packaging, and combination of colors. As a result, even well-known designs can now avail protection under trademark law. iii. The definition of trademark under the Act includes products as well as services, such as insurance, financial services, real estate and telecommunications. iv. The trademark law provides for ‗well-known trademarks‘. However, a trademark can be established as a well-known trademark, only if it is known to a considerable number of people who use such a product or avail such a service. This provision is adopted to accommodate the requirement of Art 16 of the TRIPS agreement. The well-known trademark is a mark used over particular goods or services that has obtained sufficient recognition among the consumers using such goods or services. The conditions laid down for the determination of a well-known trademark are (1) Knowledge of recognitions, (2) Promotion of trademark, (3) Duration, extent and geographical area, (4) Registration and use. v. The system of maintaining registration of trademarks in part A and part B is omitted. Only a single register will be maintained hereafter, thereby giving no room for
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discrimination between applicants, as was done formerly. All applicants are now given equal rights and opportunities. vi. As one of the means to simplify and streamline the procedure of registration, it is now made possible to file one single application for registration of a mark in different classes of goods or services, instead of filing separate applications. vii. The term of protection of trademarks (tenure) enhanced from the previous 7 years to 10 years. Renewal is possible before completion of 10 years in perpetuity. viii. An Appellate Board has been established having its national headquarters in Chennai. It is ―roving in nature‖, would have sittings in Kolkata, Mumbai, Delhi, Ahmadabad periodically depending upon the work demand. ix. The New Act provides the registered proprietor who has a trademark over goods, a preemptive right over associated services and vice versa. Thus it prohibits any other trader from using the mark even over ―similar‖ goods or services. x. The protection of trademark is extended to prevent any ‗corporate‘ or ―business concern‖ from using someone else mark as its trade name or name of its ―business concern‖, dealing in goods and services in respect of which the mark is registered. xi. To prevent the sale of spurious goods and falsification of trademarks, enhanced punishment is incorporated. Punishment will be a minimum of 6 months and can extend to 3 years and a fine of rupees 50,000 to 3 lakhs.The police can arrest the violators without a warrant as they come to know of such activities as these are considered serious offences. xii. The previous Act enabled a trademark owner to register a mark in other classes as a defensive mechanism; the same is omitted. xiii. The Act also extends the applicability of convention countries to include members of Group or Union of countries and Inter-governmental organizations such as members of the WTO.

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Caselet: Case: Blue Nile, Inc. v. Ice.com, Inc Product: ―look and feel‖ website Year: Blue Nile, Inc. v. Ice.com, Inc., the plaintiff sued the defendant for copying the overall ―look and feel‖ of plaintiff‘s retail jewelry websites, including the design of plaintiff‘s search pages. Although the court ordered more factual development before it could rule definitively on the issue, the court did hold that it was possible for the look and feel of the websites to have trade dress protection All these types of Trademarks are equally important and promote activity as well as maintain the distinctiveness of the product. Legal Requirement: There are three basic requirements for filing a trademark (or service mark) with the Indian Trademark Registry. 1. The mark must be filed under the name of the actual owner of the mark. The owner of the mark is the person who controls the nature and the quality of the goods sold or the services rendered under the mark. The owner does not have to be an individual; the owner can be a partnership, a company, or an association. If the owner is a company, then the applicant's name is the name of the company.

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2. The applicant specify what type of entity it is (individual, company, etc.) and it‘s national citizenship. It is not required that the applicant has Indian citizenship. 3. The application must be based on an actual use or on a real intention to use the mark in business. For the application to be based actual use, the applicant should indicate what products he or she has actually placed the mark on and sold for business. A mark for services will be considered actual use when it is used or displayed in the sale or advertising of services and the services are actually rendered. When you are filing an intent-to-use application, it is sufficient that you state that you plan to use the mark in commerce. However, you will have to actually use the mark before it can actually be registered. Ground of Refusal The Trademark Registry will refuse to register a mark if it does not function as a trademark or service mark. Not all words, names, symbols or devices function as trademarks. For example, names which merely describe the goods on which it is used cannot be registered. You cannot register the mark "computer", for example, for a laptop computer. The grounds for refusal may be summarized as: 1. The proposed mark consists of or comprises immoral, deceptive, or scandalous matter 2. The proposed mark may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute 3. The proposed mark consists of or comprises the flag or coat of arms, or other insignia of a country, or of any State or municipality, or of any foreign nation 4. The usage of the proposed mark is prohibited under the Emblems and Names (Prevention of Improper Use) Act,1950

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5. The proposed mark so resembles a mark already registered in the Patent and Trademark Office (PTO) that use of the mark on applicant's goods or services are likely to cause confusion, mistake, or deception 6. The proposed mark is merely descriptive or deceptively misdescriptive of applicant's goods or services 7. The proposed mark is primarily geographically descriptive or deceptively geographically misdescriptive of applicant's goods or services 8. The proposed mark is primarily merely a surname; and 9. Matter that, as a whole, is functional. Legal Remedies against Infringement and/or Passing off Under the Trade Marks Act, both civil and criminal remedies are simultaneously available against infringement and passing off. Trademark Infringement and Passing Off Infringement: Section 29 of the Trademark Act-1999 talks about various aspects related to infringement as given in S.29(1) that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. Other subsections describes that in course of the use of the trademark it is said to be infringing the rights of other company due to use of similar or identical trademark using for marketing of similar kind of goods and services or use of identical or deceptively similar trademark for any other kind of goods and services. It is further given in the Sub Section (9) of this section that the infringement can also be done by the spoken use of those words as well as by their visual representation. Significantly, infringement of a trademark is a cognizable offence and criminal
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proceedings can be initiated against the infringers. Such enforcement mechanisms are expected to boost the protection of marks in India and reduce infringement and contravention of trademarks. In Ranbaxy Laboratories Ltd. Vs. Dua Pharmaceuticals Ltd ,1988. Ranbaxy Laboratories Ltd (the plaintiff) company manufactured drugs under the trade name "Calmpose". Dua Pharmaceuticals Ltd (the defendant)company subsequently floated its similar product under the trademark "Calmprose". The said two trademarks having appeared phonetically and visually similar and the dimension of the two strips being practically the same including the type of packing, the colour scheme and manner of writing, it was found to be a clear case of infringement of trade mark and the ad interim injunction granted in favour of the plaintiff was accordingly made absolute. Passing Off: The specific description of passing off is not given in the trademark act It is referred to in section 27(2), 134(1) (c) and 135.Section. So the courts have drawn its meaning from common law that if the infringement of trademark done in such a manner where the mark is not only deceptively similar to the trademark of other company but also creating confusion for the customers, which ultimately results in damage for business of the company. Under the common law, a person who builds up a reputation in connection with the use of a particular mark will have rights to prevent another person "passing off" goods or services as being those of the owner of the mark if such conduct is likely to injure the proprietor's reputation. The proprietor of a common law trade mark may also be able to prevent registration of a similar trade mark by another party. Passing off essentially occurs where the reputation in the trademark of party A is misappropriated by party B, such that party B misrepresents as being the owner of the trademark or having some affiliation/nexus with party A, thereby damaging the goodwill of party A. For an action of passing off, registration of a trademark is irrelevant. Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action against violation of trademarks in India. In India, a combined civil action for infringement of trademark and passing off can be initiated.

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LEGAL ASPECT OF BUSINESS Three elements of Passing Off1. The presence of goodwill attached to the claimant's goods or services;

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2. Misrepresentation by the defendant which causes confusion to the public; 3. Damage suffered by the claimant.

The above concept of passing off can be explained with the help of this case law: Honda Motors Co. Ltd V Charanjit Singh & Others Honda Motors(Plaintiff) was using trademark "HONDA" in respect of automobiles and power equipments. Charanjit Singh & Others (defendants) started using the mark "HONDA" for its pressure cookers. Honda Motors bought an action against the Charanjit Singh & Others for passing of the business of the plaintiff. It was held that the use of the mark "Honda" by the defendants couldn't be said to be an honest adoption. Its usage by the defendant is likely to cause confusion in the minds of the public. The application of the plaintiff was allowed. Relief granted by Courts in Suits for Infringement and Passing off The relief which a court may usually grant in a suit for infringement or passing off includes permanent and interim injunction, damages or account of profits, delivery of the infringing goodsfor destruction and cost of the legal proceedings.The order of interim injunction may be passed ex parte or after notice. The Interim reliefs in the suit may also include order for:(a) Appointment of a local commissioner, which is akin to an ―Anton Pillar Order‖, for search, seizure and preservation of infringing goods, account books and preparation of inventory, etc. (b) Restraining the infringer from disposing of or dealing with the assets in a manner which may adversely affect plaintiff‘s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

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LEGAL ASPECT OF BUSINESS Offences and Penalties

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In case of a criminal action for infringement or passing off, the offence is punishable with imprisonment for a term which shall not be ―less than six months‖ but which may extend to ―three years‖ and fine which shall not be less than Rs. 50,000 but may extend to Rs. 300,000.

Process of Registering for Trademark The registration process generally takes at least 2 years from start to finish, although it can last longer if legal issues arise during the process. An application for registration of a trade mark can be filed at Registries located at Delhi, Mumbai, Chennai and Kolkata based on territorial jurisdiction. In case of foreign applicants, their agent's address in India shall be measured for the purpose of jurisdiction. After filing an application, the Trademark Registry will assign your file a serial number and mail you a receipt about a month after filing. An examiner with the Trademark Registry will examine the application and will publish the mark in the Trademark Journal. Other parties will have (90) days from the date of publication to object to the mark. Thereafter, the Trademark Registry will issue a Certificate of Registration.

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Case Study Case: ―Amul wins trademark case in Gujarat HC‖ Issue: Trademark - ―Utterly ButterlyAmul‖ Year: Sept 26, 2007 (An article from Times of India published on 26 Sep, 2007 ) ―Utterly ButterlyAmul's name cannot be used by any other proprietor even if the company is selling goods other than that sold by the proprietor, who has registered the trademark. In a significant judgment,‖ the Gujarat High Court has ruled that a registered trademark user has the right to restrict others using their trademark for different class or goods. HC's judgment was in connection with a case where the Kaira District Co-operative Milk Producers' Union popularly Amul Dairy and the Gujarat Co-operative Milk Marketing
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Federation (GCMMF) had filed trademark infringement cases against two local shop owners, AmulChasmaghar and Amul Cut Piece Stores in the district court. While Kaira Union owns brand Amul, GCMMF manages the brand. The district court had passed an order that it was a clear case of infringement and restrained the two from using Amul trademark. AmulChasmaghar however had challenged the district court's interim injunction in the HC, where justice D N Patel upheld ruling of the district court. Justice Patel while upholding the district court's ruling stated that he saw no reason to entertain AmulChasmaghar's appeal as the order passed by the trial court was true, correct, legal and in consonance with the facts of the case as well as in accordance with the provisions of the Trademarks Act 1999.

GEOGRAPHICAL INDICATION Definition Section 2(e) of the Act defines a GI as : “geographical indication”, in relation to goods, means an indication which identifies 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.

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Interpretation: A geographical indication tells consumers that a product is produced in a certain place and has certain characteristics that are due to that place of production. Geographical Indication aims at informing the consumer that a good has the quality, reputation or other characteristic which is essentially attributable to its geographical origin.

Geographical indications can be used to identify any product that may be associated with a specific geographic place. Consumer purchases product simply for their qualitative properties attributing the same to their geographical origin. From ancient times every region had its claim to fame for its products for example Arabia for horses, China for its silk, Dhaka for its muslin, Venice for glass, India for its spices. Some well-known GIs are ―Darjeeling Tea‖ from India, ―Chianti Wine‖ from Italy, and ―Champagne Wine‖ from France; ―Tequila Spirit‖ from Mexico; ―Idaho Potatoes‖ from USA; ―Swiss Chocolates‖ from Switzerland. All these names typically convey an assurance of quality & distinctiveness, which is essentially attributable to the fact of its origin in that defined geographical locality, region or territory.

Examples of geographical Indication in world - Bulgaria: Traminer From Khan Kroum (Wine), Merlou From Sarkar (Wine); Canada: Canadian Rye Whisky,, Canadian Whisky; Czech Republic: Beers: Pilsen, Budweis; EU: Wines: Champagne, Sherry, Porto, Chianti, Samos, Fheinhessen, Mossele Luxembourgeoise, Mittleburgenland, Spirits: Cognac, Brandy De Jerez, Grappa Di Barolo, Berliner Kummel, Genievre Flandres Artois, Scotch Whicky, Irish Whickey, Tsikoudia (From Crete); Hungary: Ger (wine) An example is the word ―Champagne‖ that is claimed exclusively by the Champagne region of France, which is the geographical region from which the wine derives its world famous name. No other wine, even if it is made from the same grape variety, by the same method, and is identical in taste, aroma and other qualities, can be called ―Champagne‖. Example the usage of the phrase ―Champagne made in USA‖ is prohibited although it is not deceptive. Examples of geographical Indication in India. - Basmati Rice, Darjeeling Tea, Pochampally Ikat, Jasmin Rice etc Some of the examples of potential Geographical Indications in Textiles & Clothing in India.

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LEGAL ASPECT OF BUSINESS SR.NO 1. 2. 3. 4. PRODUCT Balarampuram Fine Cotton Sarees Paithan Sarees Sambalpur Sarees Bomkai Saree & Fabrics

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STATE Kerala Maharashtra Orissa Orissa

5. 6. 7. 8.

Patola Sarees Lucknow Chikan Craft Varanasi Sarees & Brocades Maheswar Sarees In Silk

Gujarat Uttar Pradesh Uttar Pradesh Madhya Pradesh

It has been estimated that about 50000 products in India needs protection under GI. The registration of a geographical indication is valid for a period of 10 years. GI registration can be renewed from time to time for further period of 10 years each, if the authorized user so desires.

Appellation of Origin Lisbon Agreement defines an ―appellation of origin‖ as ―the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors. An appellation of origin is a special kind of geographical indication, used on products that have a specific quality or characteristics that is exclusively or essentially due to the geographical environment in which the products are produced. An appellation of origin (AO) is a special kind of GI.

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LEGAL ASPECT OF BUSINESS Indication of Source

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Indication of source is a sign that simply indicates that a product originates in a specific geographical region, for example, labels saying ―Made in USA‖ , ―Swiss Made‖ or ―Product of Spain‖.

Need for Geographical Indication Indian Act, 1999

Prior to 1999 there was no specific legislation to regulate geographical indication. It was in the year 1999 that India in compliance with its obligation under TRIPS Agreement enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999. This act seeks to provide for registration and better protection GIs relating to goods. It excludes unauthorized persons from misusing GIs. Geographical indications are understood by consumers to denote the origin and the quality of products. Many of them have acquired valuable reputations which, if not protected, may be misrepresented by dishonest commercial operators. Buyer believes in buying a genuine product with specific qualities and characteristics, while they in fact get a worthless imitation. The latter suffer damage because valuable business is taken away from them and the established reputation for their products is damaged.

To qualify for GI protection an indication must: i. ii. Identify the good as agricultural goods, natural goods or manufactured goods Possess a given quality, reputation or other characteristics which is essentially attributable to its area of geographic origin.

The Geographical Indications that cannot be registered are:  

The use of which would likely to deceive or cause confusion or contrary to any law. Those which comprise or contain scandalous or obscene matter or any matter likely to hurt religion susceptibility of any class or section of citizens of India.
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Those which would otherwise be disentitled to protection in a court, which are determined to be generic names or indications of goods.

Features of the Geographical Indication Indian Act, 1999

The important features of the Geographical Indication Indian Act, 1999 are as follows:-

1. It may be used by all producers who make their products in the place designated by a geographical indication and whose products share typical qualities.

2. It provides higher level of protection for notified goods and remedies for infringements.

3. It provides a mechanism for registration of GIs.

A geographical indication is a public property belonging to the producers of the concerned goods. It shall not be the subject matter of assignment, transmission, licensing, pledge, mortgage or such other agreement. However, when an authorized user dies, his right devolves on his successor in title.

GI protection with TRIPS Agreement GI protection is granted by the TRIPS Agreement. The WTO (World Trade Organization) TRIPS Agreement (an agreement on trade related intellectual property rights) of 1994 is currently the principal international instrument for protecting and defending GIs. This agreement provides for two levels of protection. A basic protection fixed in Article 22 for all products which is determined by an act of misleading the public or unfair competition; and an additional protection fixed in Article 23 solely for wines and spirits which prevents any incorrect use of GIs on these types of product. Article 23 says governments may refuse to register or may invalidate a trademark that conflicts with a wine or spirits GI whether the trademark misleads or not. Article
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24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. People responsible for administration of Geographical Indication in India are as follows: The Controller General of Patents, Design and Trademarks administers patents, designs, trademarks and geographical indications, which is under the control of the Department of Industrial Policy and Promotion.   Ministry of Commerce and Industry, govt. of India. The Geographical Indications (Registrations and Protection) Act Rule, 2002 has also stipulate the protection of GI. The GI Act came into force with effect from 15th September 2003.  The central govt. has established Geographical Indications Registry at Chennai, with Controller of Patents, Designs & Trademarks of the Registrar of GI where the right holders can register their respective product.

Caselets

1) Case: Importance of Strawberry in Mahabaleshwar Product: Strawberry Year: September 2009

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The strawberry mainly grown in Mahabaleshwar-Panchagani belt of Western Maharashtra region has now received GI status and now will be recognised as "Mahabaleshwar Strawberry", brand name for the strawberry. Earlier, All India Strawberry Grower's Association had applied for the GI status to Chennai based Geographical Indication Registry. The association confirmed the acceptance of the same on Wednesday and now the growers can market their fruit as ' Mahabaleshwar Strawberry'. All India Strawberry Grower's Association's chairman Balasaheb Khilare, said, "There are over 1800 strawberry growers in Mahabaleshwar-Panchgani belt on 2000 acres and produced 20, 000 tonnes of strawberry every year. The total cost of the production is more than Rs 100 crore. The climatic condition of Mahabaleshwar is very suitable for strawberry than any other part of the country and is similar to Europe and hence, we are able to grow good quality fruits over here. The taste and sweetness of this fruit is unique. Talking about the exports of strawberry, he said, "Earlier, we were exporting strawberry to Brazil and over 400 tonnes of strawberry was exported. But, due to highly perishable nature of the fruit, the exports were discontinued. But now, due to GI recognition we are able to export the fruit to over 153 countries in the world.

2) Case: Obtaining GI status for Puneri Pagdi Product: Puneri Pagdi Year: May 2010 Shree Puneri Pagdi Sangha recently managed to obtain geographical indication (GI) status for the famed Puneri Pagadi, the traditional headgear of Maharashtrians, and thus ensure its conservation. The Geographical indication (GI) status that we have secured for
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'Puneri Pagdi' will make our headgear famous all over the world by the name of Puneri Pagdi. No one would be able to manufacture them through wrong means and would not be able to amend the traditional way of making them. With the endorsement of the GI, no turban made outside Pune region can be legally sold under the name of Puneri Pagadi and this will benefit local artisans."The Puneri Pagdi can be popularised as a souvenir showcasing Indian tradition. Even the local artisans will gain employment by this. Infringement of Geographical Indication When an unauthorized user uses a geographical indication that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which mislead the public, the registered proprietor or authorized users of a registered geographical indication can initiate an infringement action. A sentence of imprisonment for a term between 6 months to 3 years and a fine between fifty thousand rupees and two lakh rupees or stipulated in the Act. However, the court may reduce the punishment under special circumstances.

Registration for Geographical Indication Indian Act, 1999

Geographical Indications Registry is set up in Chennai. Registry maintains a Register of GI which is divided in to two parts, Part A and Part B. Part A is related to the registration of GIs. Part A contains details of distinguishing characteristics of the goods and of the registered proprietor which would be an association of persons or producers or a body representing interest of such producers like for instance the Tea Board, Coffee Board, Spices Board etc. Part B relates to the registration of authorized users/proprietors such as names, addresses and descriptions.
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Once the need is felt for registration of a good as a GI good, the first and foremost requirement is to represent the interest of the producers of the good under consideration. The Indian GI Act says that any association of persons, producers, organization or authority established by or under the law is eligible to apply for GI registration. The applicant must represent the interest of the producers. Producers are defined as persons dealing with the following three categories of goods: 1) Agricultural Goods include the production, processing, trading or dealing; 2) Natural Goods include exploiting, trading or dealing; and 3) Handicrafts or Industrial goods include making, manufacturing, trading or dealing The second stage is the submission of application for registration under the GI Act, 1999. The application has to include details of special characteristics of the product to convincingly prove the uniqueness and establish linkages between the product and its place of origin. After the preparation of application is completed, applications can be filed and submitted by a legal practitioner or a registered agent and submitted to the Registrar of Geographical Indications, Chennai along with a prescribed fee. The application must be in writing in triplicate in the prescribed format. The application has to be signed by the applicant or his agent and accompanied by a statement of case.

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After the application is submitted, the examiner at the Registrar's office scans the application and deficiencies have to be corrected by the applicant within one month. The content of the statement of case is assessed by a consultative group of experts in the area and an examination report is issued. Post this process, in case of any objection, the Registrar communicates with the applicant and is given two months to respond or apply for a hearing. The Registrar may also withdraw an application after the hearing. Every application within three months of acceptance is published in the Geographical Indications Journal, which is bi-monthly and bi-lingual (Hindi and English) statutory publication. The Journals are published on the Registrar of Geographical Indications website and any person can file a notice of opposition within three months opposing the GI application published in the journal. At this stage, the applicant can send a copy of counterstatement which can be accepted or result in abandoning of the application after a hearing. When an application of GI has been accepted, the Registrar registers the geographical indication and the applicant is issued a certificate with the seal of the Geographical Indications Registry. A registered GI is valid for 10 years and can be renewed on payment of renewal fee. Any person aggrieved by an order or decision can file an appeal to the intellectual property appellate board (IPAB) within three months. GI is a public property belonging to the producers and it cannot be transmitted, assigned or mortgaged. The Appellate Board or the Registrar of GI has the power to remove the GI or an authorized user.

The registration of a geographical indication can be applied by Any association of persons, producers, organisation or authority established by or under the law can apply  The applicant must represent the interest of the producers  The application should be in writing in the prescribed form.  The application should be addressed to the Registrar of Geographical Indications along with prescribed fee.
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The benefits of GI registration are as follows:

i. ii. iii. iv.

It prevents unauthorized use of registered Geographical Indication goods by third parties. It boosts exports It promotes economic prosperity of producers. Only an authorized user has the exclusive rights to use the geographical indication in relation to goods in respect of which it is registered

Till March 2010, 120 goods have been registered under the Act and many more are in the pipeline. Some of the well known GI goods are 'Darjeeling' (tea), Pochhampalli Ikat, Chanderi Handloom, 'Basmati' (rice), 'Alphonso' (mango), etc. Out of the total 120 registered GIs, 80 belong to the handicraft category followed by agriculture (31), manufactured (7) and food stuff (2) Case Study

Case: GI certificate for famous Tirupati Ladoo Product: Tirupati Ladoo Year: 2008

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The Tirumala Venkateshwara temple in Tirupati, which has acquired a unique sanctity in Indian tradition, is believed to be the world‘s richest Hindu shrine and also the most frequently visited one. In March 2008, Tirumala Tirupathi Devasthanam TTD, the Trust which manages the temple, applied for a GI certification before the GI Registry in Chennai for the famous Tirupati Laddu, which is offered as prasadam (sacred food) to devotees of Lord Venkateshwara for more than three centuries. The increasing demand for these delicious Laddus had given birth to a thriving black market in and around Tirupati during the last two decades. Attempts made by the temple authorities, including raids by its security and vigilance wings, had failed to remedy the situation. According to the temple officials, they were left with no option but to seek GI protection in order to tackle the menace of hawkers and black marketers who were producing fake and spurious Laddus and selling them to unsuspecting pilgrims. The Sri Varu Laddu, popularly known as the Tirupati Laddu, which has been the centre of controversy for quite sometime, is made from boondi mixed with sugar syrup and pure cow ghee and contains a variety of other ingredients such as cashewnuts, cardamom, diamond sugar candies, raisins and almonds. They are made in two sizes, the small ones weighing between 170 and 180 grams and the big ones weighing between 700 to 720 grams. It claims that over 1.25 lakh Laddus are prepared everyday in ―pottus‖ or kitchens of the Tirumala temple. While the big Laddus cost Rs 100 each, the small ones are sold for Rs 25. Since in its application to the GI Registry, the TTD claims that the approximate number of pilgrims visiting the temple daily is 70,000, it could be earning anywhere between a Rs 17,50,000 to 70,00,000 per day from the sale of the Laddus to the visitors. TTD‘s application also mentions that the Laddus are not produced anywhere else apart from the temple and possess distinctiveness in terms of quality, reputation and other characteristics. In 2008, a panel of experts appointed by the Registrar of Geographical Indications examined the merits of the application and recommended that the Laddu indeed deserves a GI tag. Finally, on 15th September, 2009 the Tirupati Laddu was registered as a GI. Controversy: The grant of GI to Tirupati Laddu has raised a host of controversial issues many of which make a strong case in favour of cancellation of the GI registration. In fact the Madras High Court is in the process of hearing a public interest litigation (PIL), filed against the grant of GI to Tirupati Laddu by an individual petitioner. Some of the problematic aspects of the said GI designation have been discussed below:

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LEGAL ASPECT OF BUSINESS GI grant to a single producer

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Geographical indication is a collective right which is given to a community of producers to produce their goods using the GI designation. Thus, the fundamental question which arises is whether the grant of a GI to TTD is permissible under the law given the fact that the latter is a single entity. Act allows only a class or group of persons or producers or an association representing the interests of the producers to be the authorized user of a GI. TTD, on the other hand, is a single producer employing salaried or contract workers to make the Laddus inside the temple premises Laddu, even the application filed by TTD mentions the Trust as the sole beneficiary. The enormous revenue generated from the sale of the Laddus goes entirely into its pocket without having to be shared with other producers.

Lack of Distinctiveness One can only wonder as to whether Tirupati Laddu is indeed inherently distinct and possesses unique features not found in Laddus produced in other regions. A careful perusal of the TTD‘s application makes it clear that it is the size of the Tirupati Laddu which primarily distinguishes it from other Laddus. With respect to other characteristics, there is no distinctiveness which sets it apart from Laddus produced elsewhere. The ingredients such as flour, ghee, sugar, almonds, cardamom, etc which are used for making the Laddus are not very different from that used in normal Laddus. Moreover, there is neither any particular enrichment in the Laddu which can be attributed to its geographic origin, nor is the process of production unique to Tirupati. Laddus produced elsewhere are also made in a similar manner. The temple in its application claims that unlike other Laddus, Tirupati Laddus go through a stringent series of quality checks, are prepared by highly skilled cooks and are made of the best quality raw materials. While the use of such measures point towards the superior quality of the Laddus produced at Tirumala, these do not necessarily imply that they posses uniqueness sufficient to accord them GI status. However, in the absence of any marked distinctiveness from other Laddus, how could GI registry deem it fit to grant GI status on the Laddu merely because the product is believed to have the divine blessing of the Lord?

Generic Nature of Goods
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Another substantive requirement for acquiring GI status is that the GI should not have become generic in nature. The name ―Tirupati Laddu‖ is widely used by hundreds of independent producers both inside as well as outside the region. The only feature which distinguishes these Laddus from Laddus of other regions is its size. Thus, it might be possible that people identify all the gigantic Laddus which claim their origin from Tirupati as Tirupati Laddu. Therefore, it can be argued that the term ―Tirupati Laddu‖, is used commonly to refer to a type of Laddu (large Laddus), regardless of whether it is prepared in the temple. If the name has already acquired a generic status, the grant of GI to Tirupati Laddu is inherently erroneous.

PATENT
Meaning Patent are form of a certificate granted by a government. It gives the inventor/innovator the right to exclude others from imitating, manufacturing, using or selling the invention in question for commercial use during the specified period
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LEGAL ASPECT OF BUSINESS Need of Patent i. ii.

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A patent gives you the right to exclude others from making your product. As a patent gives exclusivity, the patent holder has time to market the invention without competition making him/her able to charge higher prices.

iii.

It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention.

iv. v.

You can make money by licensing or selling your invention to someone else. It gives you priority over third parties wanting to register their patents in countries that do not require registration.

Tenure of Patent: 20 years from the date of application being filed. After 20 years, that invention becomes a public Domain. Renewal of Patent: Renewal of Patent has to be done after 2 years from the date of Patent. Patent Renewal fees are payable every year. The first renewal fee will be due at the expiration of the second year from the date of the patent. Thereafter renewal fee should be paid at the expiration of every succeeding year. Amendments done to Indian Patent Act 1970 in accordance to TRIPS (2005) i. ii. Increase in patent term for all products and processes to 20 years (from 10 years) Introduction of product patents for drugs – Initially there were only process patent allowed in India for sectors like pharmaceuticals, agrochemicals and food, but this amendment made it possible for products also to be patented in these sectors.

Difference between Process Patent and Product Patent: Process patent: It is granted for a new process of manufacturing an already known product or for manufacturing a new product, or for manufacturing more articles of the same product that is reducing the cost of the already known product.

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Product patent: It is granted when a new product has been invented by the person. The product so invented may either be more or less useful product than an already known product, or a new product altogether. Caselets: Case: First Product Patent Granted in India Product: Pegasys Year: March 1 2006 The Controller General of Patents granted the first product patent in pharmaceuticals to Roche India Pvt Ltd, the Indian arm of Swiss drug maker F Hoffmann La Roche, for its biotech drug Pegasys No other company will now be allowed to launch a generic version of the drug in India, although there is no threat to drugs introduced prior to January 2005. The company had applied for the patent under the Mailbox facility for post-1995 inventions. Pegasys, a recombinant DNA technology drug, is one of the advanced drugs in the Interferon series of proteins, which has varied end uses, mainly for treatment of serious viral infections and consequent diseases like cancer. It has specific application in adults who have hepatitis C and signs of liver damage. Many Indian companies like Hyderabad-based Shantha Biotechnics market interferon drugs in India. These companies, however, would not need to discontinue production and marketing. This is because as per the patent rules, companies that had introduced the drug prior to January 2005 would not need to stop production, even if a patent is granted.

Features of Indian Patent Act 1970 The Patent law of India has the following salient features that decide whether a patent will be granted or not:

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(a) The object: The object of patent law is to encourage scientific research, new technology and industrial progress. The price of the grant of the monopoly is the disclosure of the invention at the Patent Office, which, after the expiry of the fixed period of the monopoly, passes into the public domain. (b) Inventive step: The fundamental principle of Patent law is that a patent is granted only for an invention which must have novelty and utility. It is essential for the validity of a patent that it must be the inventor's own discovery as opposed to mere verification of what was, already known before the date of the patent. (c) Useful: The previous Act, i.e. Act of 1911, does not specify the requirement of being, useful, in the definition of ‗invention‖, but courts have always taken the view that a patentable invention, apart from being a new manufacture, must also be useful. (d) Improvement: In order to be patentable, an improvement on something known before or a combination of different matters already known, should be something more than a mere workshop improvement, and must independently satisfy the test of invention or an inventive step. It must produce a new result, or a new article or a better or cheaper article than before. The new subject matter must involve "invention" over what is old. Mere collocation of more than one, integers or things, not involving the exercise of any inventive faculty does not qualify for the grant of a patent. (e) The guiding tests: To decide whether an alleged invention involves novelty and an inventive step, certain broad criteria can be indicated. Firstly if the "manner of manufacture" patented, was publicly known, used or practiced in the country before or at the date of the patent, it will negative novelty or `subject matter'. Prior public knowledge of the alleged invention can be by word of mouth or by publication through books or other media. Secondly, the alleged discovery must not be the obvious or natural suggestion of what was previously known.

Persons entitled to apply for patents An application for a patent for an invention may be made by any of the following persons either alone or jointly with another:
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LEGAL ASPECT OF BUSINESS a) True and first Inventor b) His/her assignee c) Legal representative of deceased inventor or assignee.

Trimester - 2

Criteria for Inventions to be Patentable The basic criteria for an invention to be patentable are the following: (1) An invention must be novel (2) Has an inventive step and (3) Is capable of industrial application

Inventions not Patentable Under Section 3 & 4 in Patent Act, and in sub section 3 (a) to 3 (p) gives the areas of inventions not patentable. For example,

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1. An invention which is frivolous or which claims anything obvious contrary to well established natural laws. 2. An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment. 3. The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature. 4. The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. 5. A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. 6. The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way. 7. A method of agriculture or horticulture. 8. Any process for the medicinal, surgical, curative, prophylactic diagnostic therapeutic or other treatment of human being or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products. 9. Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. 10. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions. 11. A mere scheme or rule or method of performing mental act or method of playing game. 12. A presentation of information.
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LEGAL ASPECT OF BUSINESS 13. Topography of integrated circuits

Trimester - 2

Caselet Case: Novartis V/S Indian Patent Act Product: Glivec Year: 2007 Swiss drug firm Novartis has lost its legal case against the Indian government, who it had accused of 'unconstitutional' patent law practices. The case was launched in the year 2007, after the Indian government refused to grant a patent to Novartis for its cancer drug, Glivec. India has a provision within its patent law - section 3(d) - which excludes 'incremental innovations'. Since a patent had previously been granted for imatinib (the active ingredient of Glivec) in many countries - this meant that Novartis could be refused a patent for what it claims to be an innovative and improved therapy. Novartis challenged the constitutionality of section 3(d), but that case had been dismissed by the High Court in Chennai. The company said that it was disappointed with the decision, but said that it is unlikely to take its case to the Supreme Court

Patent Infringement Patent infringement means use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent by contract license or waiver. Infringement of Patent can be in the below form:
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LEGAL ASPECT OF BUSINESS i) The colorable imitation of an invention. ii) Immaterial variation in the invention. iii) Mechanical equivalents. iv) Taking essential features of the Invention.

Trimester - 2

The Patentee has to Institute a suit for infringement within three years from the date of infringement with any District or High Court. The relief‘s which may be awarded in such a suit are1) Interrogatory / interim injunction. 2) Damages or account of profits. 3) Permanent injunction. Caselet: Case - Bajaj V/S TVS Product – Flame Year – Sept 17, 2009 Bajaj had disputed TVS' right on using internal combustion engines with three valves and two spark plugs in DTSi patent infringement case. Hence Bajaj filed a Patent Infringement suit with Madras High Court which allowed TVS application for an interim injunction restraining Bajaj from in any way interfering with the manufacture and marketing of TVS product – ―Flame‖ Later this dispute was escalated to Supreme Court which ruled its decision in favour of TVS motors. Procedure for Patent Registration

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Patent application passes through the following stages: FILING Application: An application for a patent can be filed by the true and first inventor. Form of Application: Every application shall be accompanied by a specification (Title, Abstract, Written Description, Drawings, Sample or model, Enablement and Best Mode, Claims and Deposits). Priority Date

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Priority date is the date of first filing allotted by the patent office to an application. Place of Filing A Patent application can be filed at any of the four patent offices in India. Patent Offices are located at Kolkata, New Delhi, Chennai and Mumbai. Documents to be submitted at the time of filing. The documents that need to be submitted at the time of filing a patent application are Form 1, Form 2, Form 3, Form 5 and Form 26 PUBLICATION A patent application will be published on expiry of eighteen months after the priority date. It can be published earlier, if such a request is made by the applicant EXAMINATION Request for Examination: The process of examination starts with a request for examination, which has to be made within 36 months from the date of priority or filing. Examination: On receiving the request, the controller shall direct the patent application to the Examiner for examination. OPPOSITION Pre-grant Opposition Any person can file an opposition for grant of patent after the application has been published. Post-grant Opposition Any person can file an opposition within a period of twelve months after the grant of a patent. Process of Opposition
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On receiving a notice of opposition, the controller notifies the patentee. He then constitutes an Opposition board to deal with the opposition. The Opposition board decides the issues after giving reasonable opportunity of hearing to both the parties. GRANT If the application satisfies all the requirements of the patent act, the application is said to be in order for grant. A granted patent shall be published in the official gazette and shall be open for public inspection. The patent will be valid throughout India.

Case Study

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LEGAL ASPECT OF BUSINESS Case: Apple V/S Samsung Product: Samsung Galaxy Year: April 12, 2011

Trimester - 2

Introduction: Apple sued Samsung in the United States on April 12, 2011 claiming that Samsung's Galaxy series of phones and tablets infringed upon patents held by Apple and unlawfully copied design and functionality elements of its iPhones and iPads. Samsung countersued in South Korea, Japan and Germany with the allegation that Apple had violated a number of Samsung's wireless networking patents. From there the legal battles expanded to other countries and products. The Dispute: Apple has come out on top, having won temporary injunctions banning the sale of the Galaxy Tab 10.1 in Germany and Australia and the Samsung Galaxy S2 phone in the Netherlands. Additional cases are pending in Spain and the United Kingdom. In October, Samsung tried to reverse its luck by taking a page out of Apple's playbook and attempting to block the sale of the new iPhone 4S in France, Italy, Japan and Australia Samsung’s performance in Smartphone Industry: Samsung's importance to the smartphone market cannot be underestimated. In the third quarter of this year, Samsung took the top spot in smartphone sales with almost 28 million units sold worldwide and a 23.8% market share. Apple came in a distant second with 17 million sold and a 14.6% share. Court’s Verdict: U.S. District Judge Lucy Koh, who is hearing the case, has indicated that Samsung did violate Apple's patents, echoing the Australian courts that said that Samsung "slavishly" copied the iPhone and iPad. Case Proceeding: According to a Reuters report, in a particularly telling moment during the courtroom proceedings, Judge Koh held up an Apple iPad and a Samsung Galaxy Tab and asked Samsung's lead attorney Kathleen Sullivan if she could identify which was which. "Not at this distance, your honor," replied Sullivan, who was standing some 10 feet away. Nevertheless, Apple still needs to prove that its patents are valid before the judge will consider an injunction.

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Relation between Apple and Samsung: An interesting wrinkle in this battle is that Apple spent a reported $5.7 billion on Samsung display panels, memory chips and processor components in 2010. A full 25% of the parts that went into the iPhone 4 were manufactured by Samsung. And in 2011, Apple was expected to become Samsung's largest customer by increasing component spending with its rival to $7.8 billion. Although rumors swirled that Apple was looking for new suppliers, the two companies have publicly expressed a desire to continue their purchaser/supplier relationship into 2014. Conclusion: It seems that even in the midst of a bitter patent dispute, the two companies have recognized that in order to compete in a rapidly growing technology market, business is business and they still need each other after all.

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CONCLUSION
Programs initiated by government to protect IPRS are as follows 1. The Government has brought out A Handbook of Copyright Law to create awareness of copyright laws amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook have been circulated free-of-cost to the state and central government officials, police personnel and to participants in various seminars and workshops on IPR. 2. National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright laws for the police and customs officers. Modules on copyright infringement have been included in their regular training programs. 3. The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness of copyright laws among the enforcement personnel and the general public. 4. Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal. 5. The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel as well as representatives of industry organizations. As a consequence of the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country. Over the last few years, the number of cases registered has gone up consistently.

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Protection of Intellectual Properties is a very critical element in the offshore business model. There have been many cases where companies have lost their position in the market due to the loss of intellectual property. Understanding the country‘s IP Rights and following the best practices described in this paper can drastically reduce the risk of losing the company‘s intellectual property. Commitment to protect the intellectual property of a company should be developed and nurtured at all levels of the organization.

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BIBLIOGAPHY

Intellectual Property Right:

TRIPS: http://whoindia.org/LinkFiles/Trade_Agreement_Chapter02_Trade_Agreement_Impact_of_TRI PS.pdf http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm Book-World Trade Organization-Implications For the Indian Economy -P K Vasudeva WIPO: Copyright:

Trademark:
http://trademarks4india.com/trademark_process.php

www.indiajuris.com
ipindia.nic.in/tmr_new/tmr_act_rules/TMRAct_New.pdf http://articles.timesofindia.indiatimes.com/2007-09-26/india-business/27996355_1_trademark-caseamul-dairy-butterly-amul http://www.legalserviceindia.com/article/l226-Trademark-Infringement-&-Passing-Off.html http://www.altacit.com/pdf/23-The%20New%20Indian%20Trademark%20Act.pdf http://www.indiamart.com/sanjeevkumarandco/intellectual-property-rights-practice.html http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/passingoff1.htm

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LEGAL ASPECT OF BUSINESS Geographical Indication: http://www.wto.org/english/res_e/booksp_e/casestudies_e/case16_e.htm

Trimester - 2

Patent:
http://www.indianpatent.com/pages/faq_patent.htm http://www1.american.edu/ted/turmeric.htm

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