Intellectual property (IP) plays a crucial role in the success of businesses, as it provides legal protection for unique and original creations of the mind, such as inventions, trade marks, and copyright. This protection allows businesses to:
1. Secure their competitive advantage by preventing others from using, selling, or copying their IP without permission.
2. Attract investment and partners, as IP can be bought, sold, and licensed, providing a source of revenue.
3. Establish brand identity and reputation by protecting trademarks and logos.
4. Protect trade secrets and confidential information, ensuring the business has a competitive edge.
Overall, IP helps businesses to maintain their creativity and innovation, leading to growth and success in the marketplace.
WIPO defines a trade mark as a “sign capable of distinguishing the goods or services of one enterprise from those of other enterprises”.
The Indian Trade Marks Act, 1999 describes a trade mark as a “mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours” among others. Further, a mark includes a “device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”.
Thus, anything that can indicate the source of one’s goods and services can be a trade mark. It is a visual symbol applied to articles of commerce to indicate to the purchasing public that these are the goods manufactured or services provided or otherwise dealt with by a particular person as distinguished from similar goods manufactured or services provided or dealt with by other persons.
A trade mark can comprise images, words, signature, packaging, taglines, shape of goods, colour, scent, sound, motion, store layout, motion, hologram etc.
1. Brand identification: Trade marks allow businesses to establish their brand identity and distinguish themselves from competitors. They provide a visual symbol that consumers can easily recognize and associate with the company.
2. Legal protection: Trade marks give businesses exclusive rights to use their brand name, logo, or symbol, preventing others from using similar marks that could confuse consumers. This protects the business from unfair competition and infringement.
3. Customer trust: A well-established trade mark can help build customer trust and loyalty. Consumers are more likely to purchase products or services from a company that has a recognizable and trustworthy brand.
4. Increased value: A strong trade mark can add value to a business, making it more attractive to investors, licensees, and potential buyers.
5. Global recognition: Trade marks are typically recognized and protected on a national level, but they can also be registered internationally, allowing businesses to expand into new markets and reach a wider audience.
When choosing a new trade mark, it is preferable to choose a mark which is inherently distinctive i.e., it should be able to quickly and clearly identify the proprietor as the source of the goods or services.
A “strong” trade mark is immediately able to identify the Applicant as the owner of the goods or services unlike a “weak” trade mark, which has scarce distinctive nature. Fanciful or coined marks and arbitrary marks are considered “strong” trade marks in comparison to descriptive or generic marks which are “weak” trade marks. “Strong” trade marks have better chances of protection from unauthorized use and registration by others and are easier to be registered.
When choosing a new trademark, one should ideally choose a trademark which falls into one of the below “strong” categories:
· Fanciful trade marks
These marks are a combination of letters which have no meaning and no relation to their goods or services. For example – “Exxon” for oil and gas, “Zomato” for food delivery etc. These inherently distinctive marks enjoy the broadest scope of protection against third-party use.
· Arbitrary trade marks
Arbitrary marks are dictionary words or words which have a common meaning in the language of the relevant jurisdiction and have no association with their goods or services. For example – “Apple” for computers, “Indigo” for airlines etc.
· Suggestive trade marks
These marks hint at or suggest the nature of goods or services or some of their attributes, quality or characteristic without actually describing or stating the quality of the goods or services. For example – “Netflix” for an OTT platform for streaming movies etc.
One should ideally avoid a trade mark which falls into one of the below “weak” categories:
· Descriptive trade marks
These trade marks describe some aspect of the proprietor’s goods or services without identifying or distinguishing the source of those goods or services. A descriptive mark merely describes a product or its ingredient, size, colour, origin, quality, characteristic, function, feature, purpose or use. These marks are only registrable in certain circumstances, i.e., when they gain distinctiveness through extensive use in commerce over many years.
· Generic trade marks
These marks comprise the common name of products or services and do not indicate the source of the goods or services and thus, cannot function as trade marks. These marks cannot be registered since no one entity can be allowed to monopolise a common word. For example – “clock” for timepieces etc.
Thus, while selecting a good trademark, one should endeavour that the mark is either fanciful, arbitrary or suggestive. Further, a descriptive mark should be selected only when it has acquired distinctiveness by long, continuous and extensive use. Moreover, a generic mark should be avoided at all costs.
Additionally, the proprietor should ensure that the mark is not similar to an earlier mark for similar goods or services and should not –
· deceive the public or cause confusion;
· comprise any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
· contain scandalous or obscene matter;
· should not be prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).
Moreover, the mark should not consist exclusively of the shape of goods which results from the nature of the goods themselves or which is necessary to obtain a technical result or which gives substantial value to the goods.
Anything which is capable of graphical representation, serves as your brand identity and satisfies the criteria under the Trade Mark Act is protectable as a trade mark.
There is no exact number of the types of trade marks. Trade Mark law is a constantly developing field since the brands consistently try different methods of protecting themselves. A trade mark can comprise images, words, signature, packaging, tag lines, shape of goods, colours, smell, motion, sound, store layout, motion, hologram etc.
However, we have briefly described the two main types of trade marks below:
1. WORD MARK
A word mark contains the registration of only the words or letters as a trade mark. It can either be in all uppercase or all lowercase or mix of both. There is no protection of specific font in a word mark. Word mark protection gives the highest protection to a brand name. For example: Google, IBM, adidas etc.
2. DEVICE MARK
A device mark is a visual representation of a mark in a specific manner and includes any label, sticker, monogram, logo or any geometrical figure other than a word mark. It can be simply a logo like the bitten apple logo or a mix of logo and brand name like the adidas logo with the brand name adidas and the three stripes or just a brand name written in a specific font or colour like the multicoloured google label. Protection of a device mark is on the mark as a whole and not on any individual elements of the mark. Further, registering a device mark in black and white gives it the broadest protection.
It not mandatory to use a symbol with your brand name or trade mark or copyrightable work in India. However, it is preferable to use the symbols since it serves as a notice to the third parties that the Applicant is serious about protecting its brand identity or work and is indicative of the Applicant’s claim.
There are 3 main symbols which may be added to an Applicant's IP - ™ , ® or ©.
™ - The TM sign can be used as a superscript with the trade mark after an application for registering a trade mark has been filed with the Registry.
® – This symbol is used as a superscript to designate when a trade mark is registered with the Trade Marks Registry. Using this symbol without obtaining trade mark registration is unlawful and constitutes falsification of trade marks under the Act, which is a punishable offence. In case an application is filed with the Registry with the ® symbol, the Registrar will raise an objection requiring the Applicant to remove the same till the registration stage.
©- This symbol is used for a work which is protectable under Copyright law such as Artistic, Literary, Dramatic Work or Cinematographic work. It is not necessary to file an application for copyright protection since copyright is an automatic protection that is conferred when the work is created. Although the use of © symbol is not a statutory requirement, it puts the infringers on notice and functions as a declaration of ownership.
There is no time like the present!
An application for registration can be filed at any stage, when the brand name or logo has just been finalised and has not even been put to use, when the brand name or logo has been used for a few years or even decades!
Depending on the above, the application can either be filed on proposed to be used basis or claiming use since the date of first use.
The trade mark filing process in India is a multi-step process that involves several important steps, including:
Search for availability: Before filing a trade mark application, it is important to conduct a comprehensive search to determine if the trade mark is available for use and registration. A search of the Trade Marks Register and the Internet can be conducted to ensure that the trade mark is not already in use or has been registered by another party. However, it is not mandatory to conduct a search.
Preparation and filing of the application: The trade mark application must be filed with the Trade Marks Registry in India, online or offline. The application must include a detailed description of the trade mark, the goods or services it will be used in connection with, and the class of goods or services.
Examination of the application: The Registry will examine the trade mark application to determine if it complies with all the requirements of the Trade Marks Act, 1999. If the application is found to be deficient, the Registry may issue an Examination Report, which must be addressed within the prescribed time frame.
Publication in the Trade Marks Journal: Once the trade mark application has been accepted, it will be published in the Journal, which is a weekly publication of the Registry. This gives interested parties the opportunity to file an opposition to the registration of the trade mark.
Trade mark opposition: If a third party objects to the registration of the trade mark, they may file an opposition with the Registry. The opposition must be based on valid grounds, such as confusion with existing trade marks or descriptiveness of the trade mark.
Grant of trade mark registration: If the trade mark application is not opposed, or if the opposition is unsuccessful, the trade mark will be registered and a certificate of registration will be issued. The trade mark registration is valid for a period of 10 years and may be renewed for successive 10-year periods.
WIPO defines as Copyright as “a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by Copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings”
The Government of India has defined Copyright as a “right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.
It is a “form of protection provided by the Indian legislature to authors/owners of original works of authorship from the time the works are created and expressed in a tangible form”.
1. Original work - Originality signifies original authorship that is the direct result of the intellectual creation or labour of the author. For a work to be original, it is not the idea of the work that must be original but it is the expression of the idea which must be original or unique and not copied from another.
2. Recorded in a material form or fixed in a tangible medium - The work must be permanently fixed in some tangible medium of expression i.e., it must be either seen, read or touched. There is no Copyright in speech. For a work to be ‘fixed’, it must be stored in a medium wherein it can be reproduced, perceived or otherwise communicated.
3. Not excluded from protection on public policy grounds.
Thus, a valid Copyright needs to be an original expression of an idea which can be fixed, exhibits a modicum of creativity and is not excluded from protection on public policy grounds.
There can be no copyright protection for the following:
1. Ledger sheets and blank forms
3. Ideas and principles
4. Phone directories
5. Methods of operation/processes
6. Facts and theories
Determine eligibility: To be eligible for copyright protection in India, the work must be original and fixed in a tangible medium. This includes literary, musical, artistic, and dramatic works, among others.
Formulate application: The next step is to formulate the application for copyright registration, which should include a detailed description of the work, the name and address of the copyright owner, and any other relevant information.
Submit application: The application should be submitted to the Copyright Office in India along with the required fee and any supporting documents, such as a copy of the work being registered.
Examination: The Copyright Office will examine the application to determine if it complies with the requirements for copyright registration. The Office may ask for additional information or clarification if needed.
Registration: If the application is approved, the Copyright Office will issue a certificate of registration, which serves as proof of ownership of the copyright in the work.
Enforcing rights: Once a work is registered, the copyright owner has the right to enforce their rights in the work, including the right to reproduce, distribute, perform, and display the work. If someone else infringes on these rights, the copyright owner can take legal action to enforce their rights.
Patents are a form of intellectual property that play a crucial role in the success of a business. Some of the key benefits of patents for businesses include:
1. Legal protection: Patents give businesses the exclusive right to use and license their invention for a specified period of time, protecting them from infringement by others. This can give businesses a competitive advantage and increase their ability to monetize their innovation.
2. Market exclusivity: By obtaining a patent, a business can exclude others from making, using, or selling the patented invention, allowing them to capture a larger share of the market.
3. Attract investment: Patents can increase the perceived value of a business, making it more attractive to investors who are looking to invest in companies with a strong intellectual property portfolio.
4. Licensing opportunities: Patented inventions can be licensed to others, generating revenue for the business and allowing it to collaborate with other companies or individuals on new projects.
5. Competitive advantage: Patents can give businesses a competitive advantage by allowing them to protect their innovation and maintain their lead in the market.
In conclusion, patents are a valuable tool for businesses looking to protect their innovations, secure market exclusivity, attract investment, generate revenue through licensing opportunities, and gain a competitive advantage in their industry.
1. Conduct a patent search: Before filing a patent application, it is important to conduct a search to ensure that the invention is novel and not already patented.
2. Prepare the patent application: The patent application should include a detailed description of the invention, including any drawings or diagrams, as well as a claim that defines the scope of the invention.
3. File the patent application: The patent application can be filed with the Indian Patent Office. The application must be filed in the name of the inventor(s) or the assignee, if the invention has been assigned to a company.
4. Examination of the application: Once the patent application has been filed, it will be reviewed by a patent examiner. The examiner will assess the patentability of the invention and may request additional information or make amendments to the application.
5. Publication of the patent application: If the patent application is considered to be in order, it will be published 18 months from the date of filing or the priority date, whichever is earlier.
6. Grant of the patent: If the patent application is found to be novel and non-obvious, a patent will be granted. The grant of the patent gives the inventor(s) or the assignee the exclusive right to use and license the invention for a period of 20 years from the date of filing.
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