FAQ’s

Patents

What is the term of a patent in the Indian system?

The term of every patent granted is 20 years from the date of filing of application. However, for application filed under national phase under Patent Cooperation Treaty (PCT), the term of patent will be 20 years from the international filing date accorded under PCT.

Does Indian Patent give protection worldwide?

No. Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of global patent. However, filing an application in India enables the applicant to file a corresponding application for the same invention in convention countries or under PCT, within or before expiry of twelve months from the filing date in India. Patents should be obtained in each country where the applicant requires protection of his invention.

What can be patented?

An invention relating either to a product or process that is new, involving an inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non- patentable under sections 3 and 4 of the Act.

What are the criteria of patentability?

An invention is patentable subject matter if it meets the following criteria –

It should be novel.
It should have inventive step or it must be non-obvious
It should be capable of Industrial application.
It should not attract the provisions of section 3 and 4 of the Patents Act 1970.

When should an application for a patent be filed?

An application for a patent can be filed at the earliest possible date and should not be delayed. Delay in filing an application may give rise to some risks such as

some other inventor might file a patent application on the said invention and
there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her.

Can any invention be patented after publication or display in the public exhibition?

No, because such publication or display destroys the novelty of the invention.

Trademark

How to select a good trademark?

If it is a word it should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs.

Please avoid selection of a geographical name, common personal name or surname. No one can have a monopoly right on it.

Avoid adopting word or words that describe the quality of goods (such as best, perfect, super etc.)

It is advisable to conduct a market survey to ascertain if the similar mark is used in market as well as Trademarks database search to ascertain that same/similar mark has not been applied for or registered by anyone else.

What are the benefits of registering a trademark?

The registration of a trademark confers upon the owner the exclusive right to use the trademark in relation to the goods or services in respect of which the mark is registered and to indicate so by using the symbol ® and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right does not operate against each other.

What does and signify, when can we use them?

is used to indicate that the trademark is unregistered but this mark is used for promoting goods. can be used even for trademarks for which registration is not applied to claim use over it.

is used to represent a registered trademark/ service mark that provides the applicant complete ownership and legal rights over the trademark/ service mark.

Is the registration of a trademark compulsory?

No. Registration of a trademark is not compulsory. However, the registration is the prima facie evidence of the proprietorship of the trademark under registration. However, it is to be noted that no suit can be instituted for infringement of unregistered trademarks. For unregistered marks, action can be brought against any person for passing off goods or services as the goods of another person or as services provided by another person.

Is the trade mark liable for removal on the ground of non-use?

Yes, a registered trademark can be removed on the basis of non use. Except as excused in clause 3 of section 47 of trademarks act, 1999, a trade mark may be removed on the ground of non-use if:

That the trade mark was registered without any bona fide intention and was not used till a date three months before the date of the application for removal; or
Trademark was not used for a continuous period of five year from the date of registration of trademark and application was made after three months from the expiry of five years.

Before applying for registration, where can search be done to check if identical or similar marks already exist?

In case you wish to carry out your own search (identical as well as similarity), following are the recommended steps for the same:

At the first step, you may check your mark’s availability on a free government portal using the following steps:

a) Go to the government search portal:

http://ipindiaservices.gov.in/tmrpublicsearch/frmmain.aspx

b) Select the relevant class of search from a list of 45 different business classes listed here:http://164.100.176.38/tmrpublicsearch/classfication_goods_service.html

For Wordmark:

Search using the “Contain” in the drop-down instead of “Start With” to have a broader search.

Please note that Trademark Registry will also object if the name is similar sounding. Thus, for better results, search similar sounding words as well. Example: A keyword like Kryzal can have following terms that are similar sounding: Crizal, Cryzal, Creezal, Crisal, Crysal, Creesal, Krizal, Kreezal, Krisal, Kreesal, Krysal.
Also note that the website often encounters downtime error, and sometimes shows “no record found” while that is inaccurate. And thus a minimum of 2 time confirmation is recommended if such a scenario occurs.
Please note that the normal update in the portal is done on an average period of one month. Thus recent filings will not reflect in the search.
If you find any result similar to your mark and the same/ similar class or same similar business description, the name is recommended to be changed to avoid any objection/opposition during the trademark registration process.

For Logo:

For a logo, Vienna code classification search is to be carried out. The relevant Vienna code class can be searched on this interface: http://www.wipo.int/classifications/nivilo/vienna/index.htm by clicking on the search button (top left) and then enter the keyword (top right), followed by browse through the category to identify relevant Vienna Classification.
Once the relevant Vienna code is found out, please enter the same in the Search interface using dropdown to select Search Type as “Vienna Code” instead of “Wordmark”
Enter the Relevant Vienna Code in the following format: 1.1.1 will become 010101 while 1.2.12 will become 010212.
Enter the relevant class and search. Relevancy criteria will be similar to the wordmark

Copyright

What kind of works are eligible for protection under Copyright law?

The Copyright Act protects original literary, dramatic, musical or artistic works, cinematograph films and sound recordings. In addition, the Copyright Act protects broadcast reproduction rights and performers rights.

Is it necessary to register a work to claim copyright?

No. Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.

Can unpublished works be registered?

Yes. Both published and unpublished works can be registered.

Can computer Software or Computer Programme be registered?

Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 "literary work" includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ and "Object Code" have also to be supplied along with the application for registration of copyright for software products.

How can I get copyright registration for my Web-site?

Website as a whole are not subject to copyright protection. Generally, non-copyrightable content particular to websites may include but are not limited to ideas or future plans of websites, functional elements of websites, unclaimable material, layout and format or ‘look and feel’ of a website or its webpage; or other common, unoriginal material such as names, icons or familiar symbols.

Applicants are required to submit a separate application for each component work/content appearing on a website.

How can I get Copyright registration for App?

An App is a complete, self-contained computer program that is designed to perform specific tasks. Usually called 'Apps' for short, application programs are the most familiar forms of software and come in a very wide variety of types. An App usually has primarily dynamic content and is designed for user interaction. It may be used directly or indirectly in a computer or hand held electronic device.

An App may be registered as a computer program under literary works as provided under Section 2(o) of the Copyright Act, 1957. For this purpose, an applicant is required to submit an application for registration under software category, accompanied by the source and object code as provided under Rule 70 (5) of the Copyright Rules 2013.

It is important to note that the registration will cover any screen displays generated by that program, provided that the computer program (code) generating the screen display is submitted by the applicant. Mere snapshots of screen displays of an app are not eligible for copyright protection.

Industrial Design

What is the purpose of registration of Designs?

The purpose of registration of Designs is to protect new or original designs so created to be applied or applicable to a particular article to be manufactured by Industrial Process or means. Sometimes purchase of articles for use is influenced not only by their practical efficiency but also by their appearance. The important purpose of design Registration is to see that the artisan, creator, originator of a design having aesthetic look is not deprived of his bonafide reward by others applying it to their goods.

Why is it important for filing the application for registration of design at the earliest possible?

First-to-file rule is applicable for registrability of design. If two or more applications relating to an identical or a similar design are filed on different dates, only the first application will be considered for registration of design.

Can stamps. Labels, tokens, cards be considered an article for the purpose of registration of Design?

No. Because once the alleged Design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred ceases to exist. Article must have its existence independent of the Designs applied to it.

What are the essential requirements for the registration of ‘design’ under the Designs Act, 2000?

The design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter.
The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article.
The design should be applied or applicable to any article by any industrial process.
The features of the design in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant.
Any mode or principle of construction or operation or any thing which is in substance a mere mechanical device, would not be a registrable design. For instance a key having its novelty only in the shape of its corrugation or bent at the portion intended to engage with levers inside the lock associated with, cannot be registered as a design under the Act.
The design should not include any Trade Mark or property mark or artistic works as defined under the Copyright Act, 1957.

How does a registration of design stop other people from exploiting?

Once a design is registered, it gives the legal right to bring an action against those persons (natural/legal entity) who infringe the design right, in the Court not lower than District Court in order to stop such exploitation and to claim any damage to which the registered proprietor is legally entitled. However, it may please be noted that if the design is not registered under the Designs Act, 2000 there will be no legal right to take any action against the infringer under the provisions of the Designs Act, 2000.

The Patent Office does not become involved with any issue relating to enforcement of right accrued by registration. Similarly The Patent Office does not involve itself with any issue relating to exploitation or commercialization of the registered design.

Department of ITE &C, Government of Telangana