Q: What is copyright?
A: Copyright is a proprietary right entrusted by the law upon creators of literary, dramatic, musical and artistic works, and producers of cinematograph films and sound recordings. Copyright in fact, is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work created.
Copyright safeguards the rights of authors over their creations, thereby protecting and rewarding creativity. The aim behind this protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, is to create an atmosphere conducive to creativity, which would induce them to create more and would motivate others to create.
Q: Which works are covered under the scope of Copyright Act, 1957?
A: The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works, cinematograph films and sound recordings from unauthorized uses. Copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such.
Q: Does Copyright protect titles and names?
A: Copyright does not protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or concepts.
Q: Does a work need to be necessarily registered in order to claim copyright?
A: It is not necessary to register a work in order to claim copyright. Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created. However, certificate of registration of copyright serves as prima facie evidence in a court of law in case any dispute arises relating to ownership of copyright.
Q: Where can an application be filed for registration of copyright for a work?
A: The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at New Delhi. The applications for registration of works can be filled at the counter provided at the Copyright Office or by post. On-line registration through“E-filing facility”is also available which facilitates the applicants to file applications online from any place.
Q: What is the procedure for registration under the Copyright Act, 1957?
A: The procedure for registration is as follows:
- Application for registration is made manually or online as prescribed under the Act ;
- Separate applications should be made for registration of each work;
- Each application should be accompanied by the requisite fee prescribed under the Act ;
- The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.
- The fee can be either in the form of Demand Draft, Indian Postal Order or through E payment.
- Each and every column of the Statement of Particulars and Statement of Further Particulars should be replied to specifically.
Q: Can Fees be reimbursed in case of rejection of the application?
A: The fee is not reimbursable in case of rejection of the application.
Q: Can unpublished works be registered under the Copyright Act,1957?
A: Both published and unpublished works can be registered under the Copyright Act,1957. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright. Three copies of published work may be sent along with the application. If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office.
When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee.
The process of registration and fee for registration of copyright is same.
Q: Can computer softwares and computer programmes be registered under the Copyright Act,1957?
A: Yes, Computer Softwares and programmes can be registered as“literary work”. As per Section 2 (o) of the Copyright Act, 1957“literary work”includes computer programmes, tables and compilations, including computer databases. In such cases,‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
Q: How to get copyright registration for a website?
A: A web-site contains several works such as literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films and broadcastings and computer software too. Therefore, a separate application has to be filed for registration of all these works.
Q: How long does the copyright office take to register a work under the Copyright Act,1957?
A: After filing the application and receiving diary number, the applicant has to wait for a mandatory period of 30 days so that no objection is filed in the Copyright office against the applicant’s claim that particular work is created by him. If such objection is filed, it may take another one month’s time to decide as to whether the work could be registered by the Registrar of Copyrights after giving an opportunity of hearing to both the parties.
If no objection is filed, the application goes for scrutiny from the examiners. If any discrepancy is found, the applicant is given 30 days time to remove the same. Therefore, it may take 2 to 3 months time for registration of any work in the normal course. The cooperation of the applicant in providing necessary information is the key for speedy disposal the matter.
Q: Is hearing opportunity given in all cases relating to rejection of application?
A: As per the rule 27 of the Copyright Rules, 1958 no application can be rejected without giving an opportunity to be heard. The applicant may appear himself or through his attorney in the hearing.
As per section 72 of the Copyright Act, 1957 any person aggrieved by the final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Copyright Board.
Q: What is a Trademark?
A: A trademark is any recognizable name, symbol, figure, letter, word, mark, sign, design or expression adopted and used by a manufacturer, retailer or service provider in order to designate their goods or services, and to distinguish them from those manufactured or sold by others.
The trademark owner can be an individual, business organization, or any other legal entity. A trademark may be located on a package, label, voucher, or on the product itself. To achieve corporate identity, trademarks are often displayed on company buildings as well.
Q: What are the benefits of getting a trademark registered?
- Exclusivity: Trade mark registration gives its proprietor the right to exclusive use of such mark for goods or services covered by it.
- Deterrant: Trademark registration deters others from using trademarks that are similar or identical to that of the proprietor.
- Branding: Holding a registered trademark significantly increases the value of a brand to potential purchasers, and hence a purchaser is likely to pay more for goodwill and branding.
- Intellectual Property: A registered trade mark can be licensed, transferred and sold.
- Protection: A registered trademark gives a proprietor nation-wide and international protection so that brands can be safely built.
Q: How to get a trademark registered in India?
A: In India a trademark can be registered under the Trademarks Act, 1999. Trademark registration involves the following steps such as:
- Searching of trademark database for already registered similar trade marks;
- Filing trademark registration application under relevant class(es);
- Trademark prosecution; and
- Registration of Trademark (registration has to be renewed after every 10 years).
Q: How to trademark a company name in India?
A: Company names can be registered in the same way that trademarks are registered. A company name can be registered in classes ranging from 35 to 45 depending upon the kind of services provided by the company.
Q: How to register a logo as Trademark in India?
A: Logos can also be registered in a similar manner as that of trademarks. However, there are certain additional requirements also that need to be fulfilled in order to register a logo as a trademark, such as image of the trademark.
Q: What other types of marks can be registered as trademarks in India?
A: Besides word mark and logo mark, there are certain other types of marks also that can be registered as trademarks in India. Few examples of such marks are, 3-D marks, shape marks, sound marks, holograms, colour combination marks, etc.
Q: What are the essential characteristics of a registerable trademark?
A: In order to be eligible for registration:
- The mark must be distinctive qua the goods or services which you are applying to register it for;
- The mark must be non descriptive. It should not be descriptive of the goods or services or class of goods or services relevant to you;
- The mark must not be similar or identical to earlier registered marks for the same or similar goods or services;
- The mark must not cause any deception or confusion in the public;
- The mark must not hurt the religious sentiments of any class or section of society in India;
- The mark must not be prohibited under the Emblems and Names Act, 1950;
- The mark must not have a negative connotation in India.
Q: How long does it take to register a trademark in India?
A: Trademark registration is a lengthy process involving various complex stages and it might take anywhere between 18 to 24 months to obtain registration. This time frame might further increase by many months if any Objections or Oppositions are filed against the applied mark. The proprietor is entitled to use ® (Registered symbol) along with his trademark only after his trademark gets registered.
However, the trademark application number is usually issued within 1 or 2 days after filing the application and the proprietor can use TM or SM symbol along with his mark until his application is pending before the trademark registry.
Q: What is a Geographical Indication?
A: A Geographical Indication is a notice which states that a given product originates from a given geographical area. In a broad sense, it includes indications of source, appellation of origin, and Geographical Indication (in a strict sense). For a good to be recognised by its Geographical Indication it is required that the manufactured goods should be produced or processed or prepared in that territory. It should have a distinctive quality or reputation or other characteristics.
Q: What are the examples of Geographical Indication?
A: Some of the famous examples of Geographical Indications include – Columbia – Columbian coffee, India – Basmati (rice), Greece – Ouzo (spirit), France – Champagne (sparkling wine), Roquefort (cheese), Mexico – Tequila (spirit), Italy – Parna Ham, Switzerland – Etivaz, Gruyere (cheese), Portugal – Port (wine), etc.
Q: What are the benefits of registration of a Geographical Indication?
A: Following are the benefits of registering a good by its Geographical Indication:
- It confers legal protection to Geographical Indications.
- It prevents the unauthorized use of a registered Geographical Indication by others.
- It helps in boosting the exports and thereby promotes the economic prosperity of the producers of goods operating out of a specific geographical territory.
Q: Who can apply for the registration of a Geographical Indication?
A: Any association of persons, producers, organisation or authority established by or under the law can apply for the registration of a Geographical Indication. To register, the applicant must represent the interest of the producers. When the application for registration is made the application should be in writing in the prescribed form. It should be addressed to the Registrar of Geographical Indications along with prescribed fee.
Q: Who is a registered proprietor of Geographical Indication?
A: Any association of persons or of producers or any organisation or authority established by or under the law can be called a registered proprietor. Their name should be entered in the Register of Geographical Indication as registered proprietor for the Geographical Indication applied for.
Q: Who is an authorized user of Geographical Indication?
A: An authorized user is the one who claims to be the producer of the goods in respect of which a Geographical Indication has been registered. To become an authorized user, the interested person must apply in writing to the Registrar in the prescribed manner and by paying the requisite fee. The application should be in respect of a registered Geographical Indication.
Q: Who is a producer in relation to a Geographical Indication?
A: A person dealing with three categories of goods are covered under the term Producer:
- Agricultural Goods includes the production, processing, trading or dealing.
- Natural Goods includes exploiting, trading or dealing.
- Handicrafts or Industrial goods includes making, manufacturing, trading or dealing.
Also a ‘Producer’ in relation to goods means any person who produces, processes or packages agricultural goods; exploits natural goods or makes or manufactures handicraft or industrial goods.
Q: When is a registered Geographical Indication said to be infringed?
A: A registered Geographical Indication is said to be infringed when an unauthorized user uses a Geographical Indication in a manner which indicates that such goods originated not in the true place of their origin, but at a place where the unauthorized user so represented. Such an infringement could be misleading to the public as to the originating place of the goods and could also lead to unhealthy competition based on the originating place of the goods. It also leads to unfair competition including passing off in respect of registered Geographical Indication.
Q: Can a registered Geographical Indication be transmitted, assigned, etc.?
A: A registered Geographical Indication CAN NOT be transmitted, assigned etc., unless the authorized user dies, upon which the Geographical Indication will be passed on to the successor in title.
Q: What is the term of Geographical Indication protection?
A: A registered Geographical Indication is protected for 10 years after registration date. It can, however, be renewed after expiration of 10 years.
Q: What is the penalty for infringement of registered Geographical Indication?
A: The Geographical Indication of Goods (Registration and Protection) Act, 1999 provides for an imprisonment of minimum 6 months extending up to 3 year with a fine of 50 thousand to 2 Lakh rupees in case of infringement of a registered Geographical Indication.
Q: What is the international protection system for Geographical Indication?
A: The Paris Convention of 1883 (176 member countries), the Lisbon Agreement of 1958 (28 member countries) and TRIPS Agreement provide for registration of Geographical Indication in order to avoid unfair competition and misleading Geographical Indications.
Q: What is the difference between Trade Marks and Geographical Indication?
A: A Trade Mark is a sign which is used in course of trade and is used to distinguish between goods and services of similar nature.
Geographical Indication is used to describe goods having special characteristics of goods originating from a particular Geographical Territory.
Q: What is a patent?
A: A patent is a set of exclusive rights granted by the government to an inventor or their assignee for a limited period of time in exchange for detailed public disclosure of an invention. Patents are a form of intellectual property.
A granted patent application must include one or more claims that define the invention. A patent may include many claims, each of which defines a specific property right. These claims must meet relevant patentability requirements, such as novelty, usefulness, and non-obviousness.
The exclusive right granted to a patentee in most countries is the right to prevent others, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without permission.
Q: What can be patented?
A: A patent cannot protect an idea. So, the idea needs be embodied in one or more of the following:
- A process or method
- A machine
- A manufactured article
- A new composition
- An asexually reproduced and new variety of plant.
Even if an invention falls into one of the four above categories, there are certain subject matters that cannot be patented. These include mathematical formulas, naturally-occurring substances, laws of nature and processes done entirely with the human body.
Q: Who can apply for a patent?
A: Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” In general, this means the following four requirements must be satisfied to qualify for a patent:
- The subject matter must be patentable,
- The invention must be novel,
- The invention must have some utility or usefulness, and
- The invention must not be obvious.
Q: What is/are the criteria of patentability?
A: The patent laws usually require that, for an invention to be patentable, it must be:
- Patentable subject matter, i.e., a kind of subject-matter eligible for patent protection
- Novel (i.e. at least some aspect of it must be new)
- Non-obvious or involve an inventive step
- Useful or be susceptible of industrial application
Prior to filing a patent application, inventors generally obtain a patentability opinion from a patent agent or patent attorney as to whether their invention satisfies the substantive conditions of patentability.
Q: What is the territorial extent of patent protection?
A: Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region.
Patent protection is granted for a limited period, generally 20 years from the filing date of the application.
WIPO i.e., World Intellectual Property Organisation provides for the International Patent Filing System wherein The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally for their inventions. By filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in a large number of countries, particularly the contracting states to PCT.
Q: How to apply for a patent?
A: To obtain the grant of a patent, a person, either legal or natural, must file an application before a patent office, through a patent agent, with jurisdiction to grant a patent in the geographic area over which coverage is required. This is often a national patent office, but could be a regional body too. Once the patent specification complies with the laws of the office concerned, a patent may be granted for the invention described and claimed by the specification.
Q: What is patent prosecution?
A: The process of “negotiating” or “arguing” with a patent office for the grant of a patent, and interaction with a patent office with regard to a patent after its grant, is known as Patent Prosecution. Patent Prosecution is distinct from patent litigation which relates to legal proceedings for infringement of a patent after it is granted.
Q: What is a patent specification?
A: A patent specification is a document describing the invention for which a patent is sought, and setting out the scope of the protection of the patent. As such, a specification generally contains a section detailing the background and overview of the invention, a description of the invention and embodiments of the invention and claims, which set out the scope of the protection. A specification may include figures to aid the description of the invention, gene sequences and references to biological deposits, or computer code, depending upon the subject matter of the application. Most patent offices also require that the application includes an abstract which provides a summary of the invention to aid searching. A title must also generally be provided for the application.
Since a description cannot generally be modified once it is filed (with narrow exceptions), it is important to do it correctly the first time, through a patent agent.
Q: What is the cost involved for patent registration?
A: The government fees for patent registration are different for an individual inventor and a company. The fees for patent application also differs based on number of claims and pages in the specification.
Yet to give an idea, the cost to file a patent is approximately Rs. 45,000 to 65,000. This cost is required in stages as the invention proceeds from Novelty Search (about Rs. 15000), patent drafting and filing in India (about Rs. 30,000). After 1 to 2 years, if any objections are taken by controller in examination report of the application about the invention, for responding to office actions it typically requires about Rs. 15000.
Q: What is Patent Co-operation Treaty (PCT)?
A: The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application and provides patent protection on an international level in particularly those countries where a PCT application has been filed. PCT has 152 contracting states. Some of them namely are USA, UK, China, Japan, Germany, France, etc. India became a PCT contracting state in December, 1998.