Category: Trademarks

10 Reasons why start-ups should understand how Intellectual Property system works

Start-ups are companies founded by forward looking individuals and dynamic entrepreneurs in search of scalable and repeatable business models. It is a nascent and a new business venture with the primary objective of developing a viable business model to meet newly emerging market place needs and addressing their problems.
Start-ups start with ideas nurtured by hard work and launched in a manner which results in quick and constant growth. Understanding Intellectual Property issues and legal ramifications is of utmost importance for start-ups to ensure their survival, growth and progress. A deep understanding of IPR is sine quo non-if they are not to be nipped in the bud. Start-ups have to be protected from the sharks who steal away the original ideas, inventions, the labours of creativity and the like. In today’s world IPRs major components include copyrights, trademark rights, industrial property, patents, geographical indications, plant varieties, industrial designs, layout designs of integrated circuits and the like.

Every start-up is particularly based on a novel idea and proper practice of one such idea is what transforms small start-ups into multibillion-dollar corporation. An example in the case is Thomas Eddison, the American Inventor and business man instrumental in developing many devices in fields such as electricity generation, sound recordings, motion pictures and many other fields. Today we are basking in the glory of landmark inventions like the electric bulb, etc. due to preservation of the inventions through IP. Some of the recent examples could be of Apple as developed by Steve Jobs. The core of IP Laws lies in protecting the idea or concepts that defines your start-up. An IP is actually an asset to your company and enhances your commercial value as a well-defined and well IP protected start-up attracts more investors and gradually more business.

Intellectual property laws provide a protective umbrella in avoiding infringement claims against the start-ups. An important component of IP protection includes searches regarding similar inventions or trademarks already prevailing in the public domain. Tracking such companies or individuals can insulate the start-ups from financial crises later due to patent or copyright infringements. The heavy investments in the companies would be negated and siphoned off due to high stake lawsuits.

IP goes a long way in preempting other companies and stopping them encashing upon the goodwill of start-ups. An IP protection is guaranteed by a registration certification which acts as a notice to public that a software, logo or a patent belongs to you. Before using an IP, other companies or individuals should first check the IP India website and database to see if a similar idea is already in use.

After successfully registering a patent, copyright or a trademark, an obvious presumption is created that an idea or property belongs to its holder. This gives the start-up an advantage in an infringement law suit as the IP registration will create a presumption in favor the holder in the legal proceedings.
Not protecting one’s novel idea or software which forms the core of the start-up could jeopardize the entire venture. An IP protection ensures stability and security to investors as they prefer investing in a start-up which is having a well-developed IP strategy.

If a start-up idea is based on an open source software, then the owner of such software should secure IP protection by way of copyright. Since open source software is generally free and offers expeditious development, the developer must ensure IP protection so that the start-up proprietary rights over the software are not lost.
Trade Secret Protection under IP Law helps startups to protect confidential information. It has been used to protect one of the most valuable secrets of the world including the Coca Cola recipe and Kentucky Fried Chicken (KFC). Thus, a start-up should enter into a written agreement with its employees and establish full-proof security protocols.

Safeguarding Intellectual Property which includes using copyrights, trademarks, and patents is much easier during infancy than protecting after that idea has fructified into a full blown success. IP protection not only prevents others from infringing or profiting from your business but also helps in attracting investors, suppliers, partners and more business as this form of protection offers more security with potential success.
Understanding of the copyright and its related laws would be essential in protecting the literary work, artistic and musical works, the computer software programmers and the works of architecture. It is essential for preserving monumental works like the famous David, the Leaning Tower of Pisa, the Taj Mahal, and other monuments down the ages.

The works of Shakespear, Tolstoy, Thomas Hardy, Rudyard Kipling and the like are also the Progenies of Copyrights whether in the legalistic terms or in the literal practical terms.
Start-ups need to develop an international perspective of geographical indications. They need to follow the dictates of the Paris Convention for protection of industrial property. The convention refers to the protections not as Geographical indications but as indications of source.

Then, Article 1(2) of the Lisbon Agreement mandates that member countries should provide protection to the appellations of origin of the products manufactured in other member countries.

Then, Section 3 of the TRIPS AGREEMENT deals exclusively with Geographical Indications. The ultimate objective of the agreement is to prevent misuse of the benefits of Geographical Indications. IP relating to Geographical indication is helpful in protecting products like Darjeeling Tea, Scotch Whisky, the Paris perfume, the Basmati Rice, the Swiss Chocolate, Banaras Silk and other products centralized to territories, regions or countries.
Further, India has Bio Diversity and protection against Bio-Piracy is of utmost importance. Awareness of the UN Convention on Biological Diversity (CBD) which was signed at Rio in 1992 is indispensable for start-ups with related products. Apart from conservation of biological diversity, the CBD aims at fair and equitable benefits arising out of utilization of genetic resources and transfer of technology.

Ravi Sodhi

NOVARTIS CASE: BOON FOR PATENTS AND PATIENTS

Novartis case is the landmark judgement not only in the field of IP but also for ‘aam-aadmi’. The historic date of April 1, 2013 witnesses the discourse around the world about a key feature of India’s patent regime. The core of the case focussed on the interpretation of section 3(d) of India’s patent law. In the impending verdict on Novartis Glivec, Supreme Court ruled against the company. The loss of Novartis was the impeccable news to Indians and the grade of many domestic pharma companies, especially Cipla and Natco. The verdict led to a decrement of stock price of Novartis. The judgment oozed out to be the harbinger of strong message that getting patents for drugs in India is not obvious. The verdict proved to be a solace for millions to have entree to medicines at low cost and banishing the concept of evergreening the patents by pharmaceutical industries.

The timeline:

1997- Patent application filed by Novartis AG at Madras patent office for beta-crystalline of GLIVAV.

2003- Novaris obtained EMR for 5 years in order to market Glivec, hence preventing other pharma companies from manufacturing generic version of the same-price thus soaring from Rs 10,000 to Rs 1.2 lakh.

2005- Amendment of patent law in comply with TRIPS agreement CPAA(cancer patient aid association)filed a pre-grant opposition against  Novartis patent application.

2006- Novartis was refused grant of patent by Madras patent controller, leading to manufacture of generic version of drug by other pharma industries. Writ petition was filed at the Madras high court by Novartis.

2007- Matter transferred to IPAB. High court rejected the writ petitions.

2009- IPAB rejected Novartis appeal. Novartis filed special leave petition in Supreme Court.

2013- SC dismissed Novartis petition.

“the Indian SC’S decision on section 3(d) in the famous Novartis case created a precedent and has helped us in our campaign for affordable medicine”, says Loon Gaugte, an Indian activist, regional co-ordinator, South Asia of International Treatment Preparedness Coalition(ITPC) and one of the founders of DNP+. However, the challenges and difficulties persist. The study report titled ‘Pharmaceutical Patent Grants in India’ explains how our safeguards against evergreening have filed, why the system must be reformed, and analysis of the challenges that have led to section 3(d) being underutilized despite the landmark judgment of SC.

Virtual Reality: Virtues and Vices

As our world moves through a phase of technological revolution, Virtual Reality has become the new magic word among technology geeks. Virtual Reality (VR) is used to describe a three dimensional, computer generated, artificial environment which the user believes and accepts as a real environment. Barring entertainment, VR possesses a great potential of transforming the future of numerous fields with medicine, business, architecture, designs and manufacturing being some notable mentions.

Medical professionals have already started using VR to teach their students how to perform surgeries, ease patient’s pain, and treat various social disorders. VR is also helping children and teenagers suffering from autism to overcome their fears of socializing. Automobile manufacturers are employing VR to test the safety of their cars. Architects are now able to build stronger buildings with the assistance of VR. Among its numerous users, travel agencies have also had their fair taste. Using VR, travel agents are now able to pitch various travel destinations to their customers in a very enchanting manner.
Irrespective of the innumerable advantages of using VR, there exist few disadvantages too. Its high cost, technological limitations, appended with incidents of causing motion sickness in users cannot be ignored, and challenge its projection as a “user friendly” technology.

VR is gaining applauds in the field of intellectual property. Originality is the sine qua non of intellectual property. Indian law doesn’t provide for any law to test the originality of the work. However, the degree of creativity marks the work as original. Since there is no definite concept of originality, there exists different doctrines for the same.

The two main doctrines followed in the area of intellectual property are “sweat of brow” and “modicum of creativity” doctrine.

According to the doctrine of “sweat of brow”, the author gains rights through simple diligence during the creation of the work and substantial creativity is not required. For Example, the creator of a telephone directory or a database must have a copyright over the product not because such a compilation of data showcases any creativity, or the author has expressed anything original, but merely because of the effort, time and money invested by the creator to collect and organize all the data in a specific manner. However, such a compilation must be the work of the author himself and must not be copied from another source.

The other doctrine, modicum of creativity, stipulates that originality subsists in a work where a sufficient amount of intellectual creativity and judgment has gone into the creation of that work. The standard of creativity need not be high, but a minimum level of creativity should be there for copyright protection.
India actively followed the concept of “sweat of brow” for a considerably long time. Till 2007, Indian courts held compilations to be copyrightable. However, in Eastern Book Company & Ors Vs. D.B. Modak & Anr; 12 December 2007, Hon’ble Supreme Court discarded the doctrine of “sweat of brow” and shifted to “modicum of creativity” approach. The facts of the case is that SCC, the Supreme Court Case reporter, was aggrieved by other parties infringing their copyright and launching software containing the judgment edited by SCC along with other additions made by the editors of SCC like cross references, head notes, the short notes comprising of lead words and the long note which comprises of a brief description of the facts and relevant extract from the judgments of the court and standardization and formatting of text, etc.

The notion of “flavour of minimum requirement of creativity” was introduced in this case. It was held that to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. The Court held that these inputs made by the editors of SCC can be given copyright protection because such tasks require the use of legal knowledge, skill and judgment of the editor. Thus, this exercise and creation thereof has a flavour of minimum amount of creativity and enjoy the copyright protection.

From then onwards, Indian courts are following “modicum of creativity” approach and completely rejected the plea to protect mere compilations. In order to attain intellectual property right, the work has to be original and not merely a copy of original work. Thus, the primary objective of maintaining a balance between labour of the author and original expression is ensured.

Similar or Identical Trademarks

As per the Trade Marks Act, 1999, a trademark cannot be registered if it is similar or identical to a trademark already registered with  the Trade Marks Registry, India. Section 11 of the Trade Marks Act, 1999, exclusively deals with this issue. In this article, we will take into consideration as to what are identical or similar trademarks with the help of a landmark judgment.

Similar Trademark: –

The criteria for the classification of a mark as an identical trademark is relatively simple and straightforward. A trademark may be considered identical to an existing mark if, it is created or reproduced without any alteration or modification; or where all the essential characteristics, supposably differentiating the trademark from the other are so insignificant that an average consumer is unable to distinguish.

Comparing Trademarks for Similarity: –

Below are some of the main points which shall be taken into consideration while comparing two trademarks: –

  1. Average intelligence and of imperfect recollection should be made a point of view of comparison,
  2. The structural, visual & phonetic similarity, the similarity of the idea in the two marks, and the fact as to whether it is reasonable likelihood to cause confusion should be taken into consideration.
  3. A trademark should not be dissected and then compared. It should be taken as a whole and then compared with the other mark.

The concept of similar or identical marks can further be understood with the help the case law below: –

The appellant Larsen and Toubro Ltd. (L&T), in the instant case Larsen & Toubro Ltd. v. Lachmi Narain Trades. & Ors 2008 (36) PTC 223 (Del.) (DB), is engaged in diverse business activities including transportation and infrastructural development, finance, information technology within and outside the country. Nearly a dozen subsidiary companies using the ‘L&T’ prefix with their names have been incorporated over the years to carry on the said business activities. The annual turnover of the company which runs into thousands of crores and its publicity expenditure which has gone up from 7 crores in 1991-92 to 53 crores in 2001-02 also denotes its popularity.

Aggrieved by the use of the names/abbreviation ‘LNT’ and ‘ELENTE’ as brand names for electrical goods including electrical distribution systems like miniature circuit breakers etc. by the defendants, the plaintiff company filed a suit restraining it from passing of the said goods as that of the plaintiff by confusing the wary customers. The plaintiff’s case was that the defendant intended to capitalize on the goodwill of the plaintiff, for there was no reason for the defendant to adopt such a name and abbreviation. An application seeking an ad interim injunction restraining the defendants from using the mark LNT/ELENTE was also filed. The defendants contested alleging that the name LNT/ELENTE was not similar to the trade mark and trade name used by the plaintiff and that LNT was nothing but the abbreviated form of the defendant’s family business name since 2001, Lachmi Narain Traders. Another plane of argument was that the parties did not indulge in the same ‘field of activity’. The application was allowed ex-parte by a learned Single Judge of the Delhi High Court on 27th June 2003. The Judge despite allowing the injunction by stating that the test of ‘ field of activity’ is no more valid, found favour in the willingness of the defendants to use the trade name “LNT/ELENTE-Lachmi Narain Traders” and said the injunction would not apply should the appropriate changes be made.

The appellants appealed against this, thus bringing the case under the purview of a Division Bench. The appellants referred to the Judge’s own findings in the judgment that “they have, therefore, acquired a secondary meaning as the moment the word ‘L and T’ or ‘L&T’ appear on a product, the consumer will associate the same with the plaintiffs”. It was reiterated that the test of ‘field of activity’ is no longer valid.

The decision of the Division Bench was to allow the appeal to make the ex parte ad interim order absolute and have the defendants restrained from using the trademark/names ‘LNT/ELENTE’ or another deceptively similar name in relation to any of its products.

The decision of the Hon. Division Bench of the High Court in the intent case is praiseworthy as it has substantially reiterated the non-applicability of the test of ‘field of activity’. It has done this by over-riding the learned Single Judge’s acquiescence to the defendant’s suggestion to continue using the trademark in the following manner –“LNT/ELENTE-Lachmi Narain Traders”. They observed that the defendant’s argument about the ability of a layman/average consumer to realize the difference between brand names in ‘different fields of activity’ was highly optimistic in nature, thereby categorically stating the end of the test of ‘field of activity’. The question is more of real likelihood of confusion or deception among the consumers and the resultant damages to the plaintiff, which has undoubtedly been proved in the present context as has been clearly worded in the final judgment.

The decision is also far-sighted in the consideration that it opens up an individual’s/business house’s scope for expansion into any field of profit maintaining his/its existing trademark.

Further, additional precaution is required where the goods comprise of medicinal preparations as the possibility of confusion over marks on medicinal products is more and the subsequent potential harm may be far adverse than in case of ordinary consumer products

-hope it doesn’t alters the meaning

Copyright Directive – Radical Copyright Protection Regime to takeover in European Union

After adopting Digital Single Market (Proposal) on 6th May 2015, the European Union Commission is out with its Proposal for a Directive of the European Parliament and of the Council on Copyright in Digital Single Market, Article 13 of which is a breakthrough of copyright norms worldwide. It has been reiterated as follows:

“Article 13.”

Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users

1) Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to

prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures,

such as the use of effective content recognition technologies, shall be appropriate and proportionate.”

This means that all the Internet Platforms that hold a large amount of user-uploaded material like Facebook and Youtube are now in charge of policing the content before its publication into their platforms to avoid copyright infringement, and will have no more ‘Neutral Intermediary’ protection they usually availed by E-commerce Directive in EU.

The proposal above which mandates a content recognition technology is contradictory to EU’s E-commerce Directive. Recital 47 of the e-Commerce Directive mandates that “The Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific cases.” But this recital can be easily circumvented because of its vague language aided with the language of Recital 48 providing that nothing can stop the member states to apply reasonable “Duty of care” to the service providers.

Recent Youtube Copyright Infringement

An uploader published copyright protected (allegedly stolen) videos of Plus 4, An Austrian Television Station and sued YouTube for allowing it to be published. If a similar judgment were to happen in the United States, the implications could be huge.

YouTube has been sitting safely under the umbrella of the Digital Millennium Copyright Act‘s “Safe Harbor” clause for years. After Viacom sued YouTube in 2007 for hosting around 79,000 videos that featured some Viacom-owned content, the court ruled in favor of the video platform because it could answer “no” to three questions: Did YouTube have “knowledge or awareness of any specific infringements”? Did YouTube purposefully shield itself from knowledge of the infringements? And did YouTube have the “right and ability to control” activity on its site that led to those infringements? In essence, answering no to all of these questions makes YouTube a “neutral intermediary,” exactly what the Vienna court believes it is not.

(https://www.tubefilter.com/2018/06/11/austrian-court-youtube-copyright-infringement-case/)

Therefore, the contentious Article 13 of the Copyright Directive goes for a vote on 20th June 2018. This Article if enforced is likely to cause uproar amongst digital activists and also make the copyright provisions highly strict and complicate publications and broadcasts, and will also lead to erasing away of existing content like memes, music covers, etc, as a non-transparent filtering device will be mandated to be installed by such hosts.

Bitcoin Trademarked in the UK – Should the Bitcoin Community really worry?

A company in the U.K. has trademarked the term “Bitcoin” pressing to enforce the trademark’s use which is reported to scare crypto-currency enthusiasts. Is there really a need to be dreaded? Let’s analyse.

The story began with an Etsy (An E-commerce website headed in Brooklyn) seller getting the letter from the lawyer representing the Bitcoin trademark holder in relation to Bitcoin-branded clothing items. It stated the following:

It has come to our client’s attention that you are offering for sale a variety of clothing bearing the Bitcoin trademark on Etsy.co.uk. [Our Client] has not authorised your use of the Bitcoin trademark on and in relation to clothing. Such use, therefore, amounts to trademark infringement pursuant to s10(1) of the Trade Marks Act 1994,” the letter read.”

But in an act of goodwill, the letter goes on to note that though the trademark holder could take action against the seller but it gave the seller 14 days to remove the infringing goods instead.

Cryptocurrency sites went through a shock over the fact that a company has not only trademarked bitcoin but were also enforcing the trademark, with one site even going as far as saying the trademark holder will “have authority over everything Bitcoin, at least in the U.K.”

The Legal Truth

The truth is not even near to the speculations, as the Trademark law is clear on the point that Trademarks relate to specific goods and services. It is considered as a pre-requisite in Trademark law. Trademark used in the present case, i.e. UK00003279106, registered by a company called A.B.C. IP Holdings South West only covers three classes of goods: U.K. classes 25, 32 and 33, covering clothing, beverages, and alcoholic beverages, respectively.

The Particular trademark only pertains to the above-mentioned classes and the trademark holder has absolutely no authority and effect over anything to do with Trademark of the “Bitcoin” outside the aforementioned classes.

And since it is not something unprecedented, therefore, the owner cannot enforce his right over other classes before obtaining a registration to the same effect. Further, a search of the U.K. Intellectual Property Office trademark registry finds multiple trademark registrations for bitcoin, such as UK00003029238 from 2013 which pertains to “chocolate and confectionary.”

Still a fact for the ‘Cryptocurrency Community’ to worry

A trademark registered with status: WE00001288610, covers a lot of Bitcoin-related services

The protected trademark is registered to Japanese Bitcoin exchange “bitFlyer” and covers the use of bitcoin in six different classes. It covers over a thousand items, however, the most important and disturbing things is that it includes the use of bitcoin in computer programs, advertising, financial services, electronic commerce and much more, all of which are vital parts of bitcoin itself.

There appears to be no record of “bitFlyer” having actually attempted to enforce its trademark in the past, and it’s not clear it ever would. But if the cryptocurrency community wants to get its knickers in a twist over trademarks, this is where people should be looking and not at a two-bit seller, i.e. Etsy, who is engaged in selling T-shirts.

 

Got Your Trademark Registered – Now What?

Applying for trademark registration is a simple but lengthy process. The real work behind brand protection actually begins when the trademark registration process ends and the owner receives the trademark Registration Certificate from the Trade Marks Registry. It is of utmost importance to ensure that once the trademark is registered, it retains all values and efforts that the owner has put into establishing it. Trademark protection requires sufficient planning and constant vigilance.

Here are a few tips that help in the proper use, maintenance and protection of a registered trademark –

  1. Renewal Date

    – A trademark will only be considered registered and active until it is timely renewed. It is important to notify the Registrar of Trade Marks that a trademark is valid and still in use. A trademark, once registered, is valid for a term of 10 years from the date of filing the trademark application. A request for trademark renewal can be filed within 6 months before the expiry of the said period of 10 years, and within 6 months after the expiry of the registration term of 10 years.  If the request to renew the trademark is not filed within this stipulated time period along with the requisite fee, then the trademark is removed by the authorities and is said to be abandoned due to non-renewal. Hence, on should keep a constant watch on the trademarks renewal dates as only timely renewal ensures trademark existence and brand protection.

  2. Using Correct Trademark Symbols­­

    As per the rules laid down by the Trade Marks Registry, a trademark owner is legally bound to use “TM” symbol with his mark till the time such mark is not registered. Once the trademark is successfully registered, the owner can use the small circled “R” symbol. This “R” is not just a symbol, but it is a public notice of registration and is certified as proper use of the trademark by the Registrar of Trademarks.

    Thus, after registration, the trademark owner, to ensure proper use of “R” symbol, must use this on his product packaging or label, marketing or advertising logo, website, etc.

  3. New Trademark Filings – A registered trademark owner has the complete authority to file opposition proceedings against any new trademark application which he may feels can, or is infringing his mark. To ensure non-infringement, a trademark owner must conduct a regular trademark check on the trademark journals published every week. This could also be done with the help of a Trademark Attorney.

    Undertaking regular trademark watch also ensures that the Trade Marks Registry does not        weaken or tarnish the value of a registered trademark by registering marks that could be too similar to existing trademarks.

  4. Monitor the Market – To ensure proper use and protection of the trademark, the owner should go beyond the Trade Marks Registry database and also be watchful of any suspicious entity operating in the market that may be illicitly using a mark which may be similar to his or her trademark.

    If the owner of a trademark does not oppose a similar infringing mark in a timely and prompt manner, it gives the infringing party an alibi to claim such a mark on the grounds that the latter mark has been strengthened enough to be legitimate or the infringer could challenge the earlier trademark on grounds of non-enforcement.

    So, to ensure proper protection of a registered trademark, one must act within the rights of enforcement and take proper legal advice before taking any action against an opposing party as professional consultation goes a long way in generating best practices for brand protection and efficient resolution of legal impediments.

     

Backing Up the Start-Up: Benefits of a Sound IPR Strategy

With the Indian horizon set ablaze with start-ups, the opportunity of building a full-fledged business out of a mere idea is much closer to reality now than it was a couple of decades ago. The rule of thumb in the entrepreneur industry is that two things are precious – time and money.

This is the reason why most start-ups leave it for later to develop an IPR strategy, thinking it to be the last step of setting-up shop. But, not only is it dangerous to float unprotected intellectual property in the market but it could also invite a lawsuit right at your doorstep. Start-Ups must solidify their Intellectual Property Rights Strategy in place while at a nascent stage, even if it takes a week of just reading up and educating the core team on IP.
Lately, majority of Start-Ups turn out to be innovation based ventures, their core idea being commercial exploitation of an innovative product or service, i.e., some form of intellectual property. Keeping this as the base, it then becomes mandatory for an idea based start-up to have a defined IP strategy in order to grow and reach out to the public without compromising their trade secrets.
Most Start-Ups struggle to define an IP Strategy because they do not understand it correctly. Put in simple words, an IP Strategy is coming up with a set course of action that enables a start-up to maximize the potential of their product/service, by the three-fold approach of:
  • maintaining lower costs than their competition by generating original cutting edge technology;
  • achieve higher selling prices due to uniqueness of the technology;
  • in turn, augment their market share.
An effective IP strategy ensures that the start-up maintains low cost prices as it is self-reliant in terms of technology and product creation. This leads to the conception of a unique product which will assure higher selling price as well as garner greater market share by cutting down competing products present in the market.
Taken the other way around, when a start-up holds an original product/service but does not adequately safeguard their respective IP; then markets such a potent product without developing a strong IPR strategy to monitor and back up sales, not only does it expose the product to plagiarism but also loses out on precious market share and boosted sales due to loss of originality.
Taken the other way around, when a start-up holds an original product/service but does not adequately safeguard their respective IP; then markets such a potent product without developing a strong IPR strategy to monitor and back up sales, not only does it expose the product to plagiarism but also loses out on precious market share and boosted sales due to loss of originality.
Securing Intellectual Property gives a Start-Up the freedom to operate in showcasing their unique products or technology. Google patented their Page Rank patent way back in 1998 when they didn’t even have a sustainable development plan to commercialize the patent. [Source: http://www.google.co.in/patents/US6285999].Had Google not thought of patenting this core idea of ranking pages as per their document citations, it would have been hit by copycats across the World diluting the service and capitalizing on Google’s ὰ la mode system.
Another significant pre-production aspect that is directly linked to intellectual property strategy is venture capital. Generally, Start-Ups are found bootstrapping their way into setting up and are on a constant look-out for capital investment. Here, a neat IP Strategy goes a long way in attracting sound investments, as investors tend to rely on patents and other IP in evaluating the potential of a start-up.
Investors mostly see patents and other intellectual property as valuable assets that can fetch future gains. To them, protected intellectual property equals the faith of a start-up founder in their product or service. This does not mean that a start-up must have granted patents under its sleeve to fare well at a VC funding, but must have made patent applications before looking for funding.
In the same breath, where a start-up has not taken any steps to secure Intellectual Property or have not formalized an IP strategy, the investor can be put off in pouring capital into such an unguarded product. Further, venture capitalists are known to pull out funding at the last moment as a result of unsecure IP, which can prove lethal for a start-up.
The brief history of Start-Ups has amply demonstrated that it is as valuable to develop an effective IP strategy for start-ups as it is to generate new and exciting technologies. Start-Ups have changed the face of corporate set-ups on an international level, but only with the help of safeguarding and protective measures that are no more just vague notions but solid and well-defined concepts.
Article By: Sonia Chauhan – Senior Attorney (Originally published in : Spicy IP)

 

How To Trademark Your Logo

Imagine a person who have invested a huge amount of time, money and effort to build a brand, goodwill in an individual’s or a customer’s mind. One day, he finds out that his brand name or logo is already registered by another person and he no longer can use it. To avoid this situation and to protect the brand name or logo, its identity and goodwill one should get their logo registered as soon as they start using it. Well, the good news is – Getting a logo trademarked in India is a very simple process.
A registered trademark or logo is not restricted to just a brand name, but if used properly it can become the most valuable asset of a business. Any company, individual or a legal entity can apply for the Trademark Registration of his/her logo. The Trademark Registration process generally takes around 8 to 24 months. However, for the time being, an person who has made such application can use the symbol “TM” with his logo mark and later on when the logo is registered and the Registration certificate is issued, the symbol “R” may be used with the logo mark. As per the Trademark Act, a trademark once registered is valid for a period of 10 years, which can be renewed from time to time.
What is a Logo?
Before getting a logo registered, one should know what a logo actually is. In simple terms, a logo can be any signature, name, label, device, numerals or combination of colors and fonts used to represent his business, primarily to distinguish their brand from other similar goods or services operating in the same market domain.
In India, the process of getting a logo or Trademark Registered is governed by the Controller General of Patents Design and Trademarks, Ministry of Commerce and Industry, Government of India. A logo once registered gives the owner an exclusive right to sue for damages in case of any trademark infringement under the Trademarks Act, 1999. The Trademark Registry also have the power to refuse Trademark Registration if the mark or logo to be registered is deceptively similar with an existing registered mark or logo or is offensive or is likely to cause deception or confusion.
Getting the Logo Trademarked
      • 1st Step – Trademark Search: This search is conducted by a Trademark Attorney to check whether the logo is similar to an earlier registered logo. This search can be done by both ways, online and also offline. One should proceed to the next step only after the Trademark Attorney is satisfied that the logo is unique.
      • 2nd Step – Drafting a Trademark Application: Once the logo mark or brand name is found to be unique, the Trademark Attorney shall draft a Trademark Application, i.e. Form TM- 1. The Government Cost of the Application form is INR 4000 and is a one time fee for each class.
        Along with Form TM – 1, the following supporting documents are also needed:-
        I. An identity proof of the Director of the company along with address proof.
        II. A picture of a brand logo.
      • 3rd Step – Filing the Trademark Application: The Trademark Application can be filed by 2 ways, manual filling and e- filling. The Manual filling is done by personally going to any office of the Registrar of Trademarks located in Delhi, Mumbai, and Chennai. The acknowledgement of the application and the receipt in this process is received generally after 15-20 days from filling. The e filing process is more convenient and quicker, because here the acknowledgment receipt is received immediately. After the owner of the logo mark receives the acknowledgement, he is eligible to use the symbol “TM” along with his logo.
      • 4th Step – Examination of the Registration Application by the Registrar: After the Application is received by the Registry, the Registrar checks whether the logo is similar or deceptively similar to any registered logos or mark or any pending logos or marks.
      • 5th Step – Publication in the Indian Trademarks Journal: Once the logo mark is examined by the Registrar of Trademarks and no objection is found, the logo mark is then published in the Trademark Journal. A stipulated time period of three months is provided by the Trademark Registry if any third party wish to oppose the registration of the proposed logo mark.
      • 6th Step – Trademark Registration Certificate: If no objection is raised within a stipulated period of three months, a Registration Certificate is issued by the Trademark Registry. Now the owner of the logo mark can use the registered trademark symbol “R” along with his logo.

Getting the logo trademarked can be a lengthy process, but it is absolutely essential to get it registered to gain legal protection for one’s brand.

Article By: Sunchet Thareja – Legal Associate