1.

Industrial property** design***

2. GRTK
3. Principle of national treatment*
4. Anton pillar orders*
5. Deceptive similarity of trademarks*
6. Copyright in design*
7. Complete specification
8. Product patent* process patent
9. Invention
10. Neighboring rights***
11. New plant variety right***
12. Lay out design**
13. Computer programmes
14. Idea and expression in copyright dichotomy*
15. Passing off***
16. WIPO**
17. Artistic work
18. GI**
19. Performers right***
20. Collective mgmt of copyright
21. New forms of ip
22. Specification
23. Patent coorp treaty*
24. Well known Tr
25. Ever green patents
26. Piracy of designs
27. Abuse of patent rights
28. Compulsory licence
29. New invention
30. Assignment
31. Exclusive marketing rights
32. Fair use
33. Distinctiveness of Tr
34. Inventive step
35. Trademark
36. Berne convention
37. Remedies for infringemernt of copyright
38. Internet domain names
39. Registration of domain
40. Kinds of patent
41. Service marks
42. Paris convention
43. TRIPS
44. Trademark and prop mark
45. Rights of authors and owners
 1. Define IP Significance in modern times classification justification of ipr modern forms of Ipr **
2. Provisions of Trips agreement and its impact on the protection of ipr in India* salient features**
3. Meaning and the subject matter of copyright protection* *procedure of coyright assignment
4. What can be patented explain the essential conditions for registration of patents in India what is
a patent*
5. What is passing off and how it differs from trademark infringement
6. Infringement of copyright concept of fair use as an exception**
7. Define design what is piracy of design and what are the remedies of piracy of a design
8. Procedure for obtaining patent in India and abroad patentable subject matter in India and rights
of a patentee
9. What acts constitute tr infringement exceptions
10. Paris convention for protection of industrial property 1883 salient features
11. Defne Tr procedure to register functions and classification * kinds of tr and remedies for
infringement of tr
12. Role of WIPO in protection and promotion of Ip
13. Define invention and what are patentable inventions
14. What are various copyrightable works What are the various rights that comes within the
meaning of copyright
15. Remedies available for infringement of exclusive marketing right
16. evolution and concept of ipr third word prospectives of ipr
17. main forms of ipr
18. diff b/w tr infringement passing off and tr dilution

Ans 1 Intellectual property

As the term intellectual property relates to the creations of human mind and human intellect, this property
is called Intellectual property. Creators can be given the right to prevent others from using their inventions,
designs or other creations and to use that right to negotiate payment in return for others using them.
These are Intellectual Property Rights. The creation of Intellectual Property Rights (IPR) is increasingly being
recognised in today’s global economy and society. Intellectual Property Rights are considered to be the
backbone of any economy and their creation and protection is essential for sustained growth of a nation.
The intellectual property rights are now not only being used as a tool to protect the creativity and generate
revenue but also to build strategic alliances for the socio-economic and technological growth.

Thus Intellectual Property refers to creation of mind such as inventions, designs for industrial articles,
literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the
creators or owners to have the benefits from their works when these are exploited commercially. These
rights are statutory rights governed in accordance with the provisions of corresponding legislations.
Intellectual Property rights reward creativity & human endeavor which fuel the progress of humankind. Any
original work of the human intellect, including works of art, literature, technology, and science, is
considered to be a work of intellectual property (IP).

Nature of intellectual property

Intangible Rights over Tangible Property: IP’s intangibility is the primary characteristic that sets it apart from
other types of property. Although there are many significant differences between the various types of IP,
one characteristic they all share is the establishment of property protection over intangible objects like
ideas, inventions, signs, and information as opposed to close relationships and other intangible assets,
which are tangible objects

Right to sue: IP is a resource that can be owned and managed, to use the language of the law. The majority
of intellectual property is challenged through legal rights of action that can only be carried out by people
who have legal standing. Since intellectual property (IP) is a property right, it can be inherited, purchased,
gifted, sold, licenced, entrusted, or pledged. They also have the legal right to sue anyone who uses their
innovation without their permission and to be compensated with actual property.

Rights and Duties: IP results in both obligations and property rights. The owner of the IP is entitled to carry
out specific tasks in connection with his creations. He has the sole authority to create, copy, sell and
otherwise exploit the work. Additionally, there is a negative right that bars others from using their statutory
rights.

Coexistence of different rights: In relation to a specific function, various IPR kinds may coexist. For instance,
an image of an innovation might be copyrighted and the invention itself might be patented. A design may
be included in a trademark and may also be protected under the Design Act. The numerous rights that can
coexist in IP share many similarities and distinctions.

Exhaustion of rights: The doctrine of exhaustion generally applies to intellectual property rights.
Exhaustion fundamentally means that after the first sale made by the right holder or by the authority
designated for its exhaustion, that person’s right expires and he is no longer permitted to halt the
movement of the goods moving forward. As a result, once an IP rights holder has sold a physical good that
bears IPRs, it cannot stop subsequent sales of the good. The first consent marks the end of the right. This
theory is founded on the idea of free movement of products, which is legitimate by the owner’s permission
or right. It is prohibited to use the exclusive selling privilege in connection to the same items twice.

Dynamism: IPR is undergoing continual improvement. The realm of IP is expanding as quickly as technology
in all spheres of human activity. New things are being added to the IPR scope and the scope of its
protection is being enlarged in accordance with the demands of scientific and technical advancement.
Biopatents, Software Copyrights, and Plant Diversity Protection are just a few examples of terms that
highlight recent advancements in the IPR area. The value of intellectual property and its portability has long
been recognised, and it is represented in all spheres of government, including legislative, administrative,
and judicial levels

Need for ipr ENCOURAGES INNOVATIONS ECONOMIC GROWTH SAFEGUARD THE RIGHTS OF CREATORS

ENSURE EASE OF DOING BUSINESSFACILITATES THE TRANSFER OF TECHNOLOGY

Classification of ipr
Industrial property

The expression ‘Industrial Property’ is sometimes misunderstood as relating to movable or immovable

property used for industrial production. However, industrial property is a kind of intellectual property and
relates to creation of human mind, e.g., inventions and industrial designs. Simply stated, inventions are new
solutions to technological problems, and industrial designs are aesthetic creations determining the
appearance of industrial products. In addition, industrial property includes trademarks, service marks,
commercial names and designations, including indications of source and appellations of origin, and the
protection against unfair competition. The Paris Convention also recognised industrial property to cover
patent, trademark, service mark, trade names, utility models, industrial designs, indication of source and
appellations of origin and the repression of unfair competition.

Hence, industrial property right is a collective name for rights referring to the commercial or industrial
activities of a person. These activities may include the activities of industrial or commercial interests. They
may be called inventions, creations, new products, processes of manufacture, new designs or model and a
distinctive mark for goods etc. A person’s commercial or industrial activities are covered by a group of rights
known as industrial property rights. The actions of commercial or industrial interests may be among these
activities. They can be referred to as inventions, creations, new products, manufacturing methods, new
designs or models, and distinguishing marks for commodities, among other terms.

1 PATENT

A patent is a monopoly award that gives the inventor control over the output and, up to a certain point in
the demand curve, the price of the patented goods. An innovation, such as a product or a technique that
gives a novel approach to a problem or a new technical solution, is given an exclusive right known as a
patent. An invention is the concept for creating a novel and practical product, process, or substance.
Without the permission of the patent holder, the innovation cannot be made, utilised, disseminated, or
sold for a profit. For the duration that the invention is shielded by a patent, the patent holder has the
authority to decide who may or may not use the invention. The owner of the patent may provide another
party a licence to exploit the innovation under mutually agreeable terms. Additionally, he has the option to
transfer ownership of the patent to the buyer of the right to use the innovation. From the day the patent
application was submitted, the patent is valid for 20 years. After a patent expires, the invention is no longer
protected and becomes part of the public domain, meaning that the owner no longer has the sole right to
use the invention.

2 DESIGN

Industrial designs belong to the aesthetic field, but are at the same time intended to serve as pattern for
the manufacture of products of industry or handicraft. An industrial design is the ornamental or aesthetic
aspect of a useful article, which must appeal to the sense of sight and may consist of the shape and/or
pattern and/or colour of article. An industrial design to be protectable, must be new. Industrial designs are
protected against unauthorised copying or limitation, for a period which usually lasts for five, ten or fifteen
years. Textile designs were the first to receive legal protection.

3 TRADEMARK

A trade mark tries to safeguard both the interests of the trader and the customer by differentiating the
items of one manufacturer or trader from comparable goods of others. A trademark can be any
combination of words, characters, numbers, symbols, or devices showing images of people, animals, or
both.The goal of trademark law is to give businesses the ability to acquire an exclusive right to use, share,
or assign a mark by registering their mark. Similar to this, service marks set one company’s services apart
from those of other companies. Like inventions and industrial designs, it is patentable. These are typically
registered for seven years, but by reapplying, they can be renewed indefinitely. It guarantees the owner of
the mark the sole right to use it to distinguish products or services, or to grant another person permission
to use it in exchange for payment. Because of the nature and quality of the goods or service, which are
denoted by its distinctive trademark, it aids consumers in recognising and purchasing it.

4 Geographical indication

Geographical Indicator is that part of industrial property that designates a nation or a location within it as
the nation or place of origin of that product. Such a name typically carries a guarantee of quality and
individuality, which is mostly due to the fact that it originated in the specified geographical place, region, or
nation. Signs that identify a product’s exact geographic origin are known as geographic indicators. A GI
identifies a product’s origin, which could be a village or town, a region, or a nation, and identifies the
product’s unique traits. Since it is an exclusive privilege granted to a certain community, all of the
community’s members profit from its registration. All producers or traders whose goods originate from that
location and have defining traits may use it. The Geographical Indications of Goods (Registration and
Protection) Act, 1999 was passed by India as a WTO member. It was enacted in December 1999, and it
became effective on September 15, 2003. With this Act, geographical indicators for commodities in India
are to be registered and given additional protection. Bordeaux wine, Darjeeling tea, Chanderi sarees, Kullu
shawls, Tuscany olive oil, Kanchipuram silk sarees, Alphanso Mango, Nagpur orange, and Kolhapuri
(Chappal) are well-known examples of GIs.

5 Copyright

Copyright is a well recognised form of property right which had its roots in the common law system and
subsequently came to be governed by the national laws in each country. Copyright as the name suggests
arose as an exclusive right of the author to copy the literature produced by him and stop others from doing
so. Thus, the copyright deals with the rights of intellectual creators in their creation. The copyright law
deals with the particular forms of creativity, concerned primarily with mass communication. It is also
concerned with virtually all forms and methods of public communication, not only printed publications but
also with such matters as sound, and television broadcasting, films for public exhibition etc. and even
computerised systems for the storage and retrieval of information. The copyright law, however, protects
only the form of expression of ideas themselves. The creativity protected by copyright law is creativity in
the choice and arrangement of words, musical notes, colours, shapes and so on.

6 TRADE SECRET

A trade secret is a method, practise, procedure, design, instrument, pattern, or collection of information
that is not widely known or easily discoverable and through which a company might gain a competitive
edge over rivals or clients. An enterprise may gain a competitive edge from secret business information.
Sales techniques, distribution strategies, consumer profiles, marketing plans, client and supplier lists,
production procedures, and advertising strategies are all examples of trade secrets. A trade secret can be
preserved indefinitely, but there must be a significant amount of secrecy, making it difficult to obtain the
information unless inappropriate means are used.

ANS 2 New forms of ipr

Plant varieties
A plant variety refers to a grouping of plants within a single species that share a set of distinct
characteristics, such as morphology, growth habits, or resistance to pests. These characteristics distinguish
the variety from others of the same species and remain consistent through reproduction. In intellectual
property, "plant varieties" refer to distinct, uniform, and stable populations of plants created through
selective breeding or other scientific methods, which can be protected under a legal framework known as
"Plant Variety Rights" (PVR), granting breeders exclusive rights over their newly developed plant varieties,
allowing them to prevent unauthorized propagation, production, and sale of those varieties; essentially
acting as a form of intellectual property protection specifically for plants.

Key Characteristics of a Plant Variety 1. Distinctiveness: The variety must be distinguishable from all other
known varieties by specific traits. 2. Uniformity: The variety must exhibit consistency in its traits across all
plants of that variety. 3. Stability: The traits must remain unchanged after repeated reproduction or
propagation.

Protection of Plant Varieties

Protection of plant varieties involves granting exclusive rights to breeders or developers of new varieties.
This incentivizes innovation in agriculture and ensures food security.

1. Plant Breeder's Rights (PBR)  PBRs grant breeders exclusive control over the propagation material
(seeds, cuttings, etc.) and harvested material of a new plant variety for a specified period.  Breeders can
authorize or prohibit the production, sale, and distribution of their variety.

2. Criteria for Protection To qualify for protection, a plant variety must be:  New: Not previously exploited
or commercialized.  Distinct: Clearly distinguishable from existing varieties.  Uniform: Consistent in its
traits across all specimens.  Stable: Retains its characteristics through successive generations.

3. Duration of Protection  Generally, protection lasts for 20-25 years, depending on the plant type and
jurisdiction.

GRTK

Meaning of GRTK refers to Genetic Resources (GR) and Traditional Knowledge (TK) associated with these
resources. These elements are crucial for biodiversity, cultural heritage, and sustainable development.
GRTK plays a pivotal role in agriculture, medicine, and ecological conservation, particularly for indigenous
and local communities.

1. Genetic Resources (GR) Genetic resources are biological materials containing genes of actual or
potential value. These resources are fundamental for innovations in biotechnology,
pharmaceuticals, and agriculture. Examples of Genetic Resources:  Plant Genetic Resources: Wild
varieties of crops, medicinal plants (e.g., neem, turmeric).  Animal Genetic Resources: Rare breeds
of livestock, fish species.  Microbial Genetic Resources: Microorganisms used in pharmaceuticals or
industrial processes.
2. Traditional Knowledge (TK) Traditional Knowledge refers to the know-how, innovations, and
practices developed and sustained by indigenous and local communities over generations. It is often
closely linked to genetic resources and biodiversity. Examples of Traditional Knowledge:  Medicinal
Uses: Knowledge of herbs and plants for treating illnesses.  Agricultural Practices: Sustainable
farming techniques and pest control methods.  Cultural Expressions: Folklore, rituals, and artisanal
crafts tied to nature.

Importance of GRTK
Economic Value: o Basis for innovations in biotechnology, agriculture, and medicine. o Significant
contribution to the global economy through bioprospecting. 2. Cultural Heritage: o Preserves the identity
and heritage of indigenous and local communities. o Reflects deep understanding and harmony with the
environment. 3. Sustainability: o Promotes eco-friendly practices and conservation of biodiversity. o
Supports climate-resilient agriculture through indigenous methods. 4. Health Benefits: o Provides the
foundation for many modern medicines derived from plants and microorganisms.

Legal framework

Convention on Biological Diversity (CBD, 1992):  Ensures the fair and equitable sharing of benefits arising
from the use of genetic resources.  Requires informed consent from source countries and communities for
access to resources.

Countries implement their own legislation to protect GRTK. For example: o India: Biological Diversity Act,
2002; Traditional Knowledge Digital Library (TKDL

Layout design

Meaning of Layout Designs: Layout designs (also known as topographies) refer to the three-dimensional
configurations of electronic circuits in semiconductor chips. These configurations determine the
arrangement of various elements like transistors, resistors, and connections on the chip. The protection of
layout designs focuses on the intellectual creativity involved in their design, which is essential for the
electronics and semiconductor industry.

Key Features of Layout Designs 1. Three-Dimensional Configuration: o Layout designs define the spatial
arrangement of electronic components and their interconnections. 2. Functional but Creative: o While
primarily functional, the designs involve significant creative effort and technical expertise. 3. Integral to
Semiconductors: o Layout designs are the foundation of integrated circuits used in devices like
smartphones, computers, and televisions.

Legal Protection of Layout Designs

1. Criteria for Protection To qualify for protection, a layout design must:

1. Be Original: o Created through the designer's intellectual effort. o Not common or standard in the
semiconductor industry. 2. Be Fixed in Material Form: o The design must be expressed in a tangible
medium, such as a chip or a diagram. 3. Not Be Commercially Exploited: o The design should not have been
exploited commercially for a specified period before registration.

2. Rights Conferred The creator of a protected layout design is granted:

1. Exclusive Rights: o To reproduce the design. o To commercially distribute the semiconductor chip
incorporating the design. 2. Prevent Unauthorized Use: o Prohibits copying or distributing the design
without consent.

3. Duration of Protection The duration of protection varies but is generally:  10 years from the date of
registration or first commercial exploitation, whichever is earlier.

Computer programme

A computer program is a set of instructions, written in a programming language, that directs a computer to
perform specific tasks. These programs are the backbone of software applications and systems, enabling
functionality in devices ranging from personal computers to smartphones. Examples include:  Operating
systems (e.g., Windows, Linux)  Application software (e.g., Microsoft Word, Photoshop)  Mobile apps
(e.g., WhatsApp, Spotify)

Nature of Computer Programs

1 Intangible Asset: o A computer program exists as intellectual property (IP) and is not a physical
product. 2. Dual Nature: o Source Code: Human-readable instructions written by developers. o
Object Code: Machine-readable binary code that executes tasks. 3. Functional and Creative: o
Combines functional utility with creative elements, such as unique algorithms or user interfaces. 4.
Evolving Technology: o Subject to rapid innovation and updates to meet new user demands and
technological advancements.

Protection of Computer Programs

1 Copyright Protection  Nature of Protection: o Computer programs are treated as literary works under
copyright law.  Rights Conferred: o The author has exclusive rights to reproduce, distribute, modify,
and publicly display the program.  International Frameworks: o Protected under the Berne Convention
and the TRIPS Agreement.  Duration of Protection: o Generally, life of the author plus 50–70 years,
depending on jurisdiction. 2. Patent Protection  Eligibility: o Programs that involve a novel, non-
obvious, and useful technical solution (beyond mere algorithms or abstract ideas) can be patented. 
Challenges: o Patentability varies significantly by jurisdiction (e.g., stricter in Europe than the US). 
Advantages: o Provides stronger protection compared to copyright, as it prevents independent
development of similar programs
2 Patent Protection  Eligibility: o Programs that involve a novel, non-obvious, and useful technical
solution (beyond mere algorithms or abstract ideas) can be patented.  Challenges: o Patentability
varies significantly by jurisdiction (e.g., stricter in Europe than the US).  Advantages: o Provides
stronger protection compared to copyright, as it prevents independent development of similar
programs.

Ans 3 Copyright

Copyright (or author’s right) is 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.

Copyright deals with the rights of intellectual creators in their creation. It is also concerned with virtually all
forms and methods of public communication, not only printed publications but also with such matters as
sound, and television broadcasting, films for public exhibition etc. and even computerised systems for the
storage and retrieval of information. In India, the law relating to copyright is governed by the Copyright Act,
1957 which has been amended in 1983, 1984, 1985, 1991, 1992, 1994, 1999 and 2012 and 2021. The
copyright law aims to endorse exclusive forms of artistic works at the same time safeguarding the rights of
its inventor. The scope of the law extends as far as literary, music, software, graphics, choreography, movies
and likewise is concerned. Although the registration of the work is not a mandate, nevertheless it is always
advisable to register the work the moment it is put to force

Section 13(1) of the Act provides that copyright shall subsist throughout India in the following classes of
works,

that is to say,—

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recording.

Why should Copyright be Protected?

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby
protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford
to ignore the basic requirement of encouraging the same. Economic and social development of a society is
dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers,
dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer
software, creates an atmosphere conducive to creativity, which induces them to create more and motivates
others to create.

Term of copyright

Copyright is generally valid for the lifetime of the author plus a specified number of years after their death
(e.g., 50 or 70 years, depending on jurisdiction). After this period, the work enters the public domain.

The term "copyright" literally means the "right to copy," but it encompasses a broader range of rights,
including: 1. Economic Rights: The right to exploit the work for financial gain. 2. Moral Rights: The right to
attribution and protection against distortion of the work

Nature of copyright

The nature of copyright can be understood through its key characteristics: 1. Subject Matter: Copyright
applies to original works in various fields, including: o Literary works (e.g., books, articles). o Artistic works
(e.g., paintings, sculptures). o Musical works (e.g., compositions, lyrics). o Dramatic works (e.g., plays,
scripts). o Cinematographic works (e.g., movies, videos). o Sound recordings and broadcasts. o Software
and databases. 2. Automatic Protection: Copyright protection is automatic and does not require formal
registration. As soon as a work is created and expressed in a tangible form, it is protected. 3. Originality:
The work must exhibit a degree of originality and creativity. It need not be novel or unique, but it must
originate from the author. 4. Exclusive Rights: Copyright grants the author exclusive rights, including: o The
right to reproduce the work. o The right to distribute copies of the work. o The right to publicly perform or
display the work. o The right to create derivative works (e.g., adaptations, translations). Page 285 of 306 5.
Territorial Nature: Copyright is territorial, meaning it is protected within the boundaries of the country
granting it. However, international conventions like the Berne Convention (1886) ensure protection across
member countries. 6. Duration: Copyright is generally valid for the lifetime of the author plus a specified
number of years after their death (e.g., 50 or 70 years, depending on jurisdiction). After this period, the
work enters the public domain. 7. Moral Rights: Beyond economic rights, authors have moral rights to: o
Claim authorship of the work (right of attribution). o Object to derogatory treatment of the work (right of
integrity). 8. Limitations and Exceptions: Copyright law allows for certain limitations under the principles of
fair use or fair dealing, enabling others to use the work for purposes like education, criticism, review, and
research without infringing copyright. 9. Transferability: Copyright can be transferred, assigned, or licensed,
either partially or wholly, to third parties. However, moral rights typically remain with the author. 10.
International Protection: International treaties like the Berne Convention, TRIPS Agreement, and the WIPO
Copyright Treaty (WCT) harmonize copyright laws and ensure cross-border protection
Subject matter of copyright
All subject matters protected by copyright are called 'works'. Thus according to Section 13 of The Copyright
Act 1957, it may be subjected for the following works:

 Original Literary Work,

 Original Dramatic work,

 Original Musical work,

 Original Artistic Work,

 Cinematography films, and

 Sound recordings

Original Literary work

Literary work refers to works that are in writing. The Act does not classify literary work, but we understand
that as work that are captured in writing. The act says that literary work includes computer programmes,
tables, and compilations including computer databases. The literary work need not have any literary merit
and it is not the job of the courts to look into the literary merit of copyright work.

Original dramatic work

According to the Copyright Act 1957, the dramatic work includes any piece for recitation, choreographic
work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or
otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other
things fall within the general meaning of dramatic work, and may also be covered by the definition.

Original artistic work

An artistic work as mentioned in the Act, a painting, a sculpture, a drawing includes a diagram, map, chart
or plan, an engraving or a photograph, and whether or not any such work possesses artistic quality. A work
of architecture is included as an artistic work and any work of artistic craftsmanship can also come under
the ambit of an artistic work.

Sound recordinf

"Sound recording" means a recording of sounds from which sounds may be produced regardless of the
medium on which such recording is made or the method by which the sounds are produced. A phonogram
and a CD-ROM are sound recordings.

Cinematograph films

According to the Copyright Act,1957 cinematographic films includes any work of visual recording and a
sound recording accompanying such visual recording and the expression cinematograph shall be construed
as including any work produced by any process analogous to cinematographic including video films.

Original musical work

Musical Works: o Covers compositions of music, including:  Scores, sheet music, and lyrics. o Does not
include the performance of music unless it is recorded.

Ans 4 Idea expression dichotomy

“Ideas per se are not copyrightable; only the expression of an idea is copyrightable” The idea-expression
dichotomy was formulated to ensure that the manifestation of an idea is protected rather than the idea
itself. The doctrine has been widely used in the United States. An idea is the formulation of thought on a
particular subject whereas an expression constitutes the implementation of the said idea. Expression must
be a specific, particular arrangement of words, designs, or other forms

For example, if two authors write books based on the idea of "a hero fighting evil," their specific plots,
characters, and dialogues may be protected, but the general idea of "hero vs. evil" remains free for anyone
to use.

By allowing free use of ideas, copyright law ensures that creativity is not stifled. Creators are encouraged to
build on existing ideas while being restricted from copying someone else’s unique expression. Ideas remain
part of the public domain, accessible to all individuals to foster innovation and cultural exchange.

Exception for idea expression dichotomy

1. Merger Doctrine: As per this doctrine of merger, the idea and its expression are said to be ‘merged’
and the work cannot be copyrightable.

• The expression is no longer copyrightable because granting copyright over the expression will
effectively confer the owner with a monopoly over the idea itself, which was the avowed objective
of creating the idea-expression dichotomy in the first place.

• For example, an algorithm to add two numbers or print a number on the screen can be expressed in
only one way.

• Granting copyright over this will allow such right-owner to restrict anyone from reproducing or
translating into another form of expression to perform basic operations.

• Granting such a broad monopoly will be against the public good; therefore, the law does not grant
copyright in cases where the merger doctrine applies.

2. Scenes a Faire: Where the expression of an idea cannot be made without the use of certain elements,
such that the idea cannot exist without those elements or forms of expression.

• The Courts consider these essential elements of features as non-copyrightable since protecting
these will effectively lead to the protection of the idea.

An example is a gunshot in an action scene/sequence.

• R.G.Anand v. Deluxe Films is the only Supreme Court decision that seems to have given some
credence to the idea-expression dichotomy. That case dealt with the alleged infringement of the
script of a play, arising from the adaption of the same into a cinematograph film. The main theme of
the play was provincialism, where the plot involved persons belonging to different provinces
(Punjab and Tamil Nadu). The film retained the same theme, simply reversing the gender of the
person originating of the above provinces. The Court first compared the play and the movie from a
broad perspective and opined that the film’s theme was broader in scope, covering both
provincialism and dowry. In concluding that infringement was not established, the Court held that
copyright can not be acquired over an idea (the idea being provincialism in this case), and factually
held that the dissimilarities between the two works were substantial enough for one to conclude
that there was no colourable imitation of his play’s script. Being a Supreme Court decision, the
principles established in this case form part of the law of the land and hold good even today.
Ans 5 Neighboring rights

“Neighboring rights" in copyright law refer to a set of rights granted to individuals or entities who
contribute to the creation of a copyrighted work, but are not considered the primary author, such as
performers (musicians, actors), producers of phonograms (recordings), and broadcasting organizations,
essentially protecting their interests in the public use of a copyrighted work, distinct from the author's
copyright itself; often also called "related rights.". These rights, also referred to as Related or Secondary
Rights, grew as a concept parallel to Copyright. The main purpose behind it was to protect the rights of
those intellectual creators who put in efforts to convey the author’s message to the public.

Neighboring Rights protect the rights of these channels of communication. These rights were first
recognized under the Rome Convention of 1961. The convention provided them with a protection tenure of
20 years, which could be extended in the national laws to up to 50 years. “They divide these rights into
three categories:

 Rights of Performers

 Rights of Producers of Phonograms

 Rights of Broadcasting Organizations”[i]

Rights of Performers dealt with the rights of actors, singers, musicians, dancers, etc., and those who
performed literary or artistic works. Rights of Phonogram Producers dealt with the rights of those who
produced phonograms. Phonograms are the aural fixation of a sound on a storage device. Rights of
Broadcasting Organizations dealt with the rights of those organizations that help in the transmission and
re-transmission of audio and video work.

Neighboring Rights in India

The Indian Act of Copyright did not originally protect Neighboring Rights under it. It was only after the
amendment of 1994 when specific sections were inserted into the Act for the same in Chapter VIII. Section
37 and 38 were inserted to protect the rights of Broadcasting Organizations and Performer’s rights,
respectively. Producers of Phonograms were on the other hand protected by the insertion of ‘sound
recording’ under Section 13 and their rights under Section 14. Section 39 was also inserted, which dealt
with all those acts which would not amount to an infringement on the rights of Performers and
Broadcasting Organizations.

Further on, through the amendment of 2012, there was an insertion of exclusive and moral rights of
performers through Section 38A and 38B. Section 39A was also inserted, which dealt with certain
provisions that would apply in the case of Performers rights and Broadcaster’s reproduction rights.

Neighboring Rights are a relatively less talked about a bundle of rights that are equally important in the
field of intellectual property rights. With the recognition of these rights with WIPO, there has been a slower
yet strong adaption of these rights into the national legislations. They are of equal importance as they
protect the rights of performing artists along with the producers and broadcasters who are gradually
growing bigger as an industry. Though there is a need for better research on the topic, the Indian
Legislation has put strong regulations for the same which are commendable.

Ans 6 Performers rights

The word ‘performer’ is defined in Section 2 (qq) of the Act. It states that “performer includes an actor,
singer, musician, dancer, acrobat, juggler, conjuror, snake charmer, a person delivering a lecture or any
other person who makes performance.” Section 2 (q) defines performance about the performer's right as
“any visual or acoustic presentation made live by one or more performers”. The amendment of 2012
however added that when in a cinematographic film, if a person’s performance is informal or incidental,
and that in the usual industry practices, is not credited anywhere including the credits of the film, the
performance shall not be treated as that of a performer except for sub-clause (b) of Section 38B”[iii].

The act provides an exclusive right to every performer over his performance. This gives them the right to
allow or bar the recording or broadcasting of their performance to the public in an audio or video form.
These rights were the result of the development of media and its various channels of communication as
modern invention allowed for the permanent storage of the performances of these artists. Their
performances could reach the masses in a flick of a finger without their consent. The new law provides
them a decent amount of protection.

Just like copyright, protection of the rights of a performer initiates as the performance takes place. There is
no requirement for registration. The rights allow the performers to exclude any party from recording,
communicating, issuing copies of, selling, or giving to commercial rental their performance. It also prohibits
the broadcasting or communication of their performances to the public unless the performance has already
been broadcasted. The act provides performers with the economic rights of 50 years.

Section 39 however does add its special circumstance when the rights of a performer are not infringed.
These include when the recording of the performance is made for the sole use of a person or research and
teaching purposes. The use is consistent with fair dealing in the reporting of current events or for Bonafide
review, teaching, or research. Finally, if any act does not constitute infringement under Section 52 of the
act, it shall not be considered as an act of infringement for the rights of the performer.

Moral Rights of Performers

Moral rights are inalienable rights that are bestowed upon the creators of any work of intellectual labor.
Just like the authors of a work protected under copyright, the performers of performance have their moral
rights as well. These are provided under Section 38B of the Act. There are two moral rights available to the
performers. “These are:

· The right to be identified as the artist in their performance unless where the exclusion is made through
the Right of Paternity of another.

· The right to Restrain or claim damages in respect of any distortion, mutilation or other modification to
their performance that can be damaging to their reputation”

• In Super Cassettes Industries v. Bathla Cassette Industries, the Delhi High Court held that copyright
and performers rights are two different things and in case the song is re-recorded then the prior
permission of the original singer is required.

• In Neha Bhasin v. Anand Raj Anand, the court addressed the issue that what will constitute the live
performance, here it held that whether the performance is recorded in the studio or in front of the
audience, for the first instance, both will be called live performance and if anyone use such
performance without the consent of the performer then performer’s rights is said to be infringed.

• In the case of Star India Pvt. Ltd. V Piyush Aggarwal, the issue that was raised was whether a cricket
match would constitute a “performance” or not under the copyright act. The Delhi High Court
observed that a cricket match will be considered a “performance” and therefore, cricketers,
commentators, and umpires are performers under the Act.
Ans 7 Rights of authors and owners

Rights of the owner of a Copyright:

In order to exercise and enjoy the position of ownership of the copyrighted work, certain rights have been
conferred to the owner in terms of morality and on monetary benefits by the copyright Act, 1957, and are
also recognized by International conventions like TRIPS and Berne.

Economic rights of a Copyright Owner –

Any right that yields or payoffs the owner monetarily are said to be the economic rights. The economic
right of the owner are been listed out in Section 14 of the principal Act, under the meaning of copyright.

Right to reproduce the work :

Reproduction is an act of copying from the previously finished works or giving it a differential form by
adding, editing or modifying the same. In short in means the right to copy. Such right shall exclusively be
exercised by the owner of the work and shall not be infringed by any other person since the act of
reproduction of the work may economically make benefits to its owner. Be it a book which has been
published or a compact disc that has been recorded and manufactured, right of reproduction of
copyrighted works are the basis to protect a work from the act of exploitation. The concept of substantial
and material copying has also been enclosed within the reproductive right. In regards to the violation of
copyright of the owner, it is not necessary to copy the entire subject matter of the work to held responsible
for such infringement and a part of the reproduction of a particular work would be enough for the
infringement of the same.

Right to distribute in market :

The act of distribution may be in the form of sale, lending for free or for a consideration, rental, or free
distribution by the way of gift. The right of distribution differs from case to case and shall not be exercised
in a similar manner at each instance. If the work that has been sold is a book, the rule of exhaustion shall
be applied. Wherein the right to distribute the book will be exhausted and ceases to exist after the first sale
of it and the buyer of the book will be further entitled to resale it as a second hand material. Whereas this
condition is not the same in case if the owner of copyright set ups a library and charges rental fee to read
the books available there and the law does not prohibit to do so also the rule of exhaustion will not come
to play.

Right to communicate to the public :

It means letting or making the product/work available to the public by way of broadcasting, simulcasting or
webcasting. If a person not being the owner of the work, communicates it to the public would amount to
the act of infringement. In Indian performing right society Ltd. V Aditya Pandey, the Delhi High Court held
that “the defendant is accordingly restrained from communicating any of such works to the public, or
performing them, in the public, without such appropriate authorization, or licensing”.[

ight of adaptation :

Conversion, alteration, transcription or rearranging a copyrighted work means and includes the right of
adaptation. These rights are exclusively available only to musical, literary or dramatical works and are not
extended to the computer programmes. Although the right of adaptation are being protected by the
statute, it is also been governed by the principles laid down under a classical case, by the Privy Counsel,
in Macmillan and Company Ltd. V K. and J. Cooper[3]. The defendants were alleged on infringing the book
published by the plaintiff and the nature of the book which was previously published by the Plaintiff was
put to test and was figured out the work was made out of a non – copyrighted source, such that the
Plaintiffs book lacked its nature of originality and held that the defendants are not guilty of infringement.
The principle employed here is that, although a work has been adapted from such source it must possess a
quality of originality to an extent.

Right to translate :

The owner of the copyrighted work has a right to translate his work to any other languages he wants.

In Academy of General Edu., Manipal & ANR. Vs. B. Malini Mallya[4] – petition was filed by the plaintiff,
alleging on the use of his idea without authorization. The Court held that “mere adaption of an idea would
not amount the act of infringement and there must be a substantial copy of work to attain the same.

Moral rights of a Copyright Owner:

A moral right would stand a step ahead of an economic right in which it is based on the dignity, uniqueness
and the reputation that a work has gained and maintained. It has been well illustrated in the case
of Amarnath Sehgal v Union of India[5],the plaintiff’s masterpiece was damaged by the defendant by
which it lost its aesthetic and market value. A mandatory injunction was passed by the court in addition of
fine amount of 50 lacs as the cost of damage.

The moral rights of the copyright owner has been provided under Section 57 of the principal Act that
encompasses three basic moral rights.

Right of paternity :

The right of an owner of copyright to claim and prevent others to claim the ownership of his copyrighted
work is said to be a right of paternity. Sholay Media Entertainment and Pvt. Ltd. V Parag M. Sanghavi[6],
was a landmark judgement delivered on the Right of paternity of the copyright owner, where the court
granted protection to the title of the movie which made the defendant to replace his’ movie title
completely by refraining the use of the name which causes damage to the cult of the name “Sholay” since
it was deceptively similar with the same.

Right of integrity :

The right of the owner of the copyright to protect the reputation of his own work from exploitation is the
right of integrity. Sajeev Pillai v. Venu Kunnapalli & ors[7]., the respondent was alleged on the act of pre –
release publicity of the movie which was yet to be released without ant authorized permission. The court
granted relief to the aggrieved petitioner by restraining the respondent to carry on such act which damages
the exclusiveness and reputation of the movie.

Right to retraction :

Retraction is an act of taking back the previous assertion made. The author at times may feel to give up his
own right as an act of honoring the dignity of his work which sounds like assassinating ones own life for the
sake of protecting the so far gained reputation. The principal Act, under section 57 grants the author the
right to withdraw from the publication of his work. In simple terms it means waiving of his granted rights
for the sake of protection of reputation or integrity. In Amarnath Sehgal v Union of India[8], the court
pointed out the right to retraction as to withdraw ones own publication if the author feels the condition of
his work is derogatory in nature and are advisable to do the withdrawal of the same. This would be the
author’s right to retraction.
Ans 8 Assignment of copyright

Section 18 of the Copyright Act provides that the owner of the copyright in an existing work or the
prospective owner of the copyright in a future work may assign to any person the copyright either wholly
or partially and either generally or subject to limitations and either for the whole term of the copyright or
any part thereof. However, in case of the assignment of copyright in any future work, the assignment shall
take effect only when the work comes into existence. No such assignment shall be applied to any medium
or mode of exploitation of the work which did not exist or was not in commercial use at the time when the
assignment was made, unless the assignment specifically referred to such medium or mode of exploitation
of the work. However, the author of the literary or musical work included in a cinematograph film shall not
assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright
for the utilization of such work in any form other than for the communication to the public of the work
along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copy
right society for collection and distribution and any agreement to contrary shall be void.

Mode of assignment

Section 19 of the Act provides that an assignment of the copyright in any work should be in writing signed
by the assignor or by his duly authorised agent. The assignment of copyright in any work required to
identify such work, and also specify the rights assigned; the duration; territorial extent of such assignment;
the amount of royalty and any other consideration payable to the author or his legal heirs during the
currency of the assignment and the assignment subject to revision, extension or termination on terms
mutually agreed uponby the parties.

Where the assignee does not exercise the rights assigned to him under any of the other sub- sections of
this section within a period of one year from the date of assignment, the assignment in respect of such
rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the
assignment. The assignment of copyright in any work contrary to the terms and conditions of the rights
already assigned to a copyright society in which the author of the work is a member is void. The
Assignment of copyright in any work to make a cinematograph film does not affect the right of the author
of the work to claim an equal share of royalties and consideration payable in case of utilization of the work
in any form other than for the communication to the public of the work, along with the cinematograph film
in a cinema hall.

Disputes arising out of assignment of copyright

Section 19A(1) provides that if an assignee fails to make sufficient exercise of the rights assigned to him,
and such failure is not attributable to any act or omission of the assignor, then, the Commercial Court may,
on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke
such assignment.

According to Section 19A(2) If any dispute arises with respect to the assignment of any copyright, the
Commercial Court may, on receipt of a complaint from the aggrieved party and after holding such inquiry as
it considers necessary, pass such order as it may deem fit including an order for the recovery of any royalty
payable.

In the case of K.A. Venugopala Setty vs. Dr. Suryakanta V. Kamath 1992 (12) PTC 55 (DB) (Kar) Assignment

setup by the defendant is an oral assignment. Under the provisions contained in section 19 of the Act,

assignment of copyright must be in writing and signed by the author or his duly authorized agent stating
in clear terms about the right proposed to be assigned as well as the size of the work. Hence, an oral

assignment is invalid and it is impermissible in law.

The Hon’ble Court ruled that Section 19A of the Act, which deals with copyright disputes, will only be

applicable when a copyright assignment is made in compliance with Section 19 of the Act, which means

it is in written and signed by the assignor or his properly authorised agent. Therefore, provision 19A

cannot be considered to apply in the current instance and preclude the lawsuit because there isn’t an

assignment in writing as required by section 19 of the Act.

Indian Performing Right Society Ltd. Vs. Eastern India Motion Pictures Association the Supreme Court held
that an existing and future right of music composer and lyricist in their respective “ work” as defined in the
Act was capable of the assignment subject to the condition mentioned in Section 18 of the Copyright Act,
1957, as also in Section 19 of the Act, which required an assignment to be in writing, signed by the assignor
or by his duly authorized agent.

Ans 9 Infringement of copyright

Copyright infringement refers to the unauthorized use of someone’s copyrighted work. Thus, it is the use of
someone’s copyrighted work without permission thereby infringing certain rights of the copyright holder,
such as the right to reproduce, distribute, display or perform the protected work. Copyright protection
gives exclusive rights to the owners of the work to reproduce the work enabling them to derive financial
benefits by exercising such rights. If any person without authorisation from the owner exercises these rights
in respect of the work which has copyright protection it constitutes an infringement of the copyright. If the
reproduction of the work is carried out after the expiry of the copyright term it will not amount to an
infringement.

Under sec 51 of the copyright act 1957 infringement has been difined explained, copyright in any work is
deemed to be infringed in the following cases-

1. any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights
under this Act, or in violation of the conditions of a license so granted or of any conditions imposed
by a competent authority under this Act-

2. Does anything, the exclusive right to which is conferred on the owner of the Copyright by this Act.

 When any person-

 Make for hire for sale, sells or lets for hire, or trade displays or offers for sale or hire

 Distributes either for commercial purposes or in such a way as to harm the owner of the copyright.

 By way of public trade shows.

 Imports into India of any infringing copies of the work (omitted by Act 65 of 1984, S.3 (effective 8-
10-1984))

In the case of S.K. Dutt vs. Law Book Co. AIR 1954 All 570, the Hon’ble Court held that in infringement of
copyright the onus of proof is on plaintiff to satisfy the court that the defendant had infringed his copyright.
The plaintiff having failed to establish any infringement of his copyright, no question of granting any relief
to the plaintiff could arise. It may here be noted, however, that there was on behalf of the plaintiff, no
evidence to indicate what damage, if any, accrued to him, assuming that there was an infringement of his
copyright by the defendants.

In order to constitute infringement of copyright two elements are essential

1. There must be sufficient objective similarity between the infringing work and the copyright work
2. The copyright work must be source from which the infringing work is derieved but itneed not be the
direct source

Common types of infringement

 Making infringing copies for sale or hire or selling or letting them for hire;

 Permitting any place for the performance of works in public where such performance constitutes

infringement of copyright;

 Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially

the interest of the owner of copyright;

 Public exhibition of infringing copies by way of trade; and

 Importation of infringing copies into India.

Exceptions

Certain exceptions to infringement have been stipulated by the Copyright Act. The object of these
exceptions is to enable the reproduction of the work for certain public purposes, and for encouragement of
private study, research and promotion of education. The list of acts which do not constitute infringement of
copyright has been provided under Section 52 of the Act. These includes:

(i) A fair dealing with any work, not being a computer programme, for the purposes of–

a) private or personal use, including research;

b) criticism or review, whether of that work or of any other work;

c)reporting of current events and current affairs, including the reporting of a lecture delivered in public.

(ii) The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such
computer programme, from such copy in order to utilise the computer programme for the purposes for
which it was supplied; or to make back-up copies purely as a temporary protection against loss, destruction
or damage in order only to utilise the computer programme for the purpose for which it was supplied.
(iii) the doing of any act necessary to obtain information essential for operating inter-operability of an
independently created computer programme with other programmes by a lawful possessor of a computer
programme provided that such information is not otherwise readily available.

(iv) the observation, study or test of functioning of the computer programme in order to determine the
ideas and principles which underline any elements of the programme while performing such acts necessary
for the functions for which the computer programme was supplied.

(v) the making of copies or adaptation of the computer programme from a personally legally obtained copy
for non-commercial personal use.
(vi) the transient or incidental storage of a work or performance purely in the technical process of
electronic transmission or communication to the public.

(vii) transient or incidental storage of a work or performance for the purpose of providing electronic links,
access or integration, where such links, access or integration has not been expressly prohibited by the right
holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is
of an infringing copy.

(viii) the reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of
a judicial proceeding.

(ix) the reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the
Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the
use of the members of that Legislature.

(x) the reproduction of any work in a certified copy made or supplied in accordance with any law for the
time being in force.

(xi) the reading or recitation in public of reasonable extracts from a published literacy or dramatic work.

(xii) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for
instructional use, and so described in the title and in any advertisement issued by or on behalf of the
publisher, of short passages from published literary or dramatic works, not themselves published for such
use in which copyright subsists. However, not more than two such passages from works by the same author
are published by the same publisher during any period of five years.

(xiii) the reproduction of any work—

by a teacher or a pupil in the course of instruction; or

as part of the questions to be answered in an examination; or

in answers to such questions.

Remedies for infringement

1. The Copyright law in India provided for remedies to be made available to the author against a
copyright infringer. The Copyright Act, 1957 provides to an author both Civil, Criminal and border
enforcement remedies. They are:  Civil Remedies: provide for injunctions, damages, interpretation
of accounts, delivery and destruction of infringing copies and damages for conversion. Section 55
The different civil remedies available are 1. Interlocutory Injunctions 2 Pecuniary Remedies

3 Anton Pillar Orders 4 Mareva Injunctio

 Criminal Remedies: provide for imprisonment, fines, seizures of infringing copies and delivery of
infringing copies to the owner. The copyright owner is entitled under Section 63 of the 1957 Copyright Law
to prosecute a contravener in which a penalty can be extended to at least 6 months, with a fine of Rs. 50
000, extending to two lakhs.

 Border Enforcement: also provides for prohibition of import and destruction of any imported goods that
infringe the copyright of a person with the assistance of the customs authorities of India.
 Section 58 entitles the owner of the copyright to initiate proceedings for the possession of infringing
copies and other materials related thereto. In this context, the section clarifies that all infringing copies of
any work in which copyright subsists and all plates used or intended to be used for the production of such
infringing copies shall be deemed to be the property of the owner of the copyright.

YRF vs Sri Sai Ganesh Productions

In this case, YRF filed a copyright infringement suit against Sri Sai Ganesh Productions on the grounds that it
copied their movie ‘Band Baaja Baaraat’ and produced ‘Jabardasht’ movie which had substantial and
material similarities in terms of concept, theme, character, plot, story, script and expression amongst other
things. The court extended the test of originality since the films are protected like original works, to
distinguish between the two films based on ‘foundation, substance and kernel’ and understand the average
moviegoer’s viewpoint as to whether they would have an impression that one work was a copy of the
other. The court held that Sri Sai Ganesh Productions had blatantly copied the YRF film’s essential,
fundamental, and distinctive features, resulting in copyright infringement.

Hawkins Cooker Ltd. vs Magicook Appliances

Hawkins Cooker Ltd sued Magicook Appliances on the grounds of illicitly using their label registered under
the Copyright Act, 1957, which they used on their renowned pressure cooker line. The court deterred
Magicook Appliances from using the Hawkins Cooker Ltd cookbooks. It ordered Magicook Appliances to
deliver damages to Hawkins Cooker Ltd company for all alleged books, products, and articles employed by
them in manufacturing the offending goods.

Ans 10 Fair use

The doctrine of fair use is a principle in copyright law that allows limited use of copyrighted material
without obtaining permission from the copyright owner. It provides a legal framework for balancing the
rights of creators with the public's interest in accessing and using creative works for purposes such as
education, research, and criticism. Fair use is primarily recognized in jurisdictions like the United States, but
similar doctrines, such as fair dealing, exist in other countries.

Fair trade is a considerable constraint of the copyright owner’s exclusive right. On a number of occasions,
the courts have interpreted it by assessing the financial impact on the proprietor. In the absence of
significant economic impact, the use can be a fair deal. The fairness of the deal depends on the four factors
that follow:

 The purpose of the application

 The work’s nature

 The quantity of work used

 The impact of the work on the original

Section 52(1) the following act shall not constitute an infringement of

copyright, namely, —
A fair dealing with any work, not being a computer programme, for the
purposes of—
 Private or personal use, including research;
 Criticism or review, whether of that work or of any other work;
  The reporting of current events and current affairs, including the reporting
of a lecture delivered in public.
Explanations—The storage of any work in any electronic media, including by-
laws of any computer program which does not itself constitute a breach of copy
for the purpose set forth in this clause, shall not constitute a breach of
copyright.
Examples of Fair Use

1. Criticism and Commentary: o Quoting or excerpting copyrighted works for review, analysis, or critique
(e.g., in a book review or blog post). 2. Parody: o Using a copyrighted work to create a parody, provided
it adds significant commentary or humor. 3. Teaching and Education: o Reproducing parts of a
copyrighted work for classroom use, such as excerpts from books or academic articles. 4. News
Reporting: o Using copyrighted material for reporting on current events, provided it is relevant and
properly attributed. 5. Research and Scholarship: o Incorporating parts of a work into research papers
or presentations for noncommercial, educational purposes. 6. Search Engines and Thumbnails: o
Displaying small, low-resolution versions of images in search results.

Ans 11 Trademark

A trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a
word signature, name, device, label, numerals or combination of colours used by one undertaking on
goods or services or other articles of commerce to distinguish it from other similar goods or services
originating from a different undertaking.

‘Mark’ includes a device brand heading label ticket , name , signature, word , letter packaging or
combination of colors or any combination thereof.

Definition

The term trade mark has been defined under Section 2(1)(zb) of the Act as to mean 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; and

(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to
goods or services for the purpose of indicating or so as to indicate a connection in the course of trade
between the goods or services, as the case may be, and some person having the right as proprietor to use
the mark; and

(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or
services for the purpose of indicating or so to indicate a connection in the course of trade between the
goods or services, as the case may be, and some person having the right, either as proprietor or by way of
permitted user, to use the mark whether with or without any indication of the identity of that person, and
includes a certification trade mark or collective mark.

Essential features

Trade mark is a kind of property and is entitles to protection under the law irrespective of its value in
money.

The selected mark should be capable of being represented graphically I,e paper form

It should be capable of distinguishing the goods or services of one undertaking from those of others
It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating
or so as to indicate a connection in the course of trade between the goods or services and some person
have the right to use the mark with or without identity of that person

Kinds of trade mark

conventional Trademarks

Conventional trademarks refer to traditional forms of trademarks that are widely recognized and registered
under most legal systems. Types of Conventional Trademarks:

1. Word Marks: o Comprises words, letters, or numerals. o Example: "Google," "Microsoft," "Coca-
Cola."
2. Device Marks (Logos): o Includes graphical representations, symbols, or designs. o Example: Nike's
swoosh, Apple's bitten apple.
3. Label Marks: o Combination of design and text often used on product packaging. o Example: Wine
bottle labels. 4.
4. Combination Marks: o Combines word and device marks. o Example: McDonald's logo (golden
arches + "McDonald's" text). 5.
5. Numerical Marks: o Consists of numbers associated with a product or service. o Example: "501" for
Levi's jeans.
6. Name Marks: o Involves personal or business names. o Example: "Ford," "Louis Vuitton."

Non-Conventional Trademarks

Non-conventional trademarks include distinctive marks that do not fall under traditional categories but are
still capable of distinguishing goods or services.

1. Color Marks: o Single colors or a combination of colors used as a distinctive identifier. o Example: Tiffany
& Co.'s blue box (Pantone 1837 Blue).

2. Shape Marks (Three-Dimensional Marks): o Protects the unique shape or packaging of a product. o
Example: The Coca-Cola bottle or Toblerone chocolate's triangular packaging.

3. Sound Marks: o Protects distinctive jingles or sounds associated with a brand. o Example: Nokia
ringtone, MGM lion’s roar.

4. Smell Marks: o Protects a unique scent associated with goods or services (rare and challenging to
register). o Example: The smell of freshly cut grass for tennis balls (registered in Europe).

5. Texture Marks: o Protects a specific texture used on product surfaces. o Example: Leather texture on
packaging (rarely registered).

6. Taste Marks: o Protects distinctive flavors associated with products (highly contentious and rare). o
Example: Limited to industries where taste is a distinguishing factor (e.g., pharmaceuticals)

Ans 12 Registration of trademark

Any person, claiming to be the proprietor of a trademark used or proposed to be used by him, may apply in
writing in prescribed manner for registration. The application should contain the trademark, the goods
services, name and address of applicant and agent (if any) with power of attorney, the period of use of the
mark. The applications can be submitted personally at the Front Office Counter of the respective office or
can be sent by post. These can also be filed on line through the e-filing gateway available at the official
website.

Procedure for registration

1. Application

Section 18 deals with the procedure for making an application for registration. Any person claiming to be
the Proprietor of a trademark used or proposed to be used by him, who is desirous of registering it, shall
apply in writing to the Registrar in the prescribed manner for the registration of his trademark. Sub-section
(2) of Section 18 allows registration in several classes of goods or services by means of a single application.
However, the fee payable is to be calculated on the basis of the number of classes in which registration is
sought. Section 23 places obligation on the Registrar to register the trade mark where the procedure for
registration of a trade mark has been completed viz., the application has been accepted and either the
application has not been opposed or the opposition has been dismissed.

2. Examination

A. Pre-Examination Processing:

Filing of application: A Trade Mark Application may be filed online or offline. After digitization of offline
applications, both online and offline applications are merged and proceed further for processing through
the Trade Mark system.

ii. VIENNA Codification: If applied mark consists of figurative elements, codification of the figurative
elements is done as per VIENNA Agreement and then application moves for examination. Trade Marks
applied as word per se directly proceed for examination. It is expected that all applications which may
require VIENNA Codification or otherwise should be processed expeditiously and serially as per priority
based on the date of filing of application.

B. Examination of applications

Examination in Trade Mark Registration is done in two stages, first examination report is prepared by an
Examiner and then the application and examination report is forwarded to Examination Controller for
approval. Examination Controller evaluates the examination report, and if found proper, approves it and
thereafter the examination report is issued to applicant. However, if some deficiency is noted by the
Controller, the examination report is reverted/referred back to the concerned Examiner with suggestions
for resubmission/re-examination. At this stage, application may be accepted or an objection may be raised
as per provisions of the Trade Mark Act. In case it is accepted, it will be published in Trade Mark Journal,
else examination report will be issued to the applicant containing office objections which needs to be
replied by the applicant within 30 days from the date of receipt of examination report.

C. Post Examination Processing:

i. Consideration of Reply: After receipt of examination report, applicant needs to submit his reply to the
office objections within one month time and if he fails to do so, the application is abandoned for want of
reply. If reply is submitted within the prescribed period, the same is considered by the authorized officers
for the purpose. Here also, the application is allotted to the authorized officers through the Trade Mark
system serially on the basis of the date of filing of the response to the examination report. At this stage, the
authorized officer may accept application and the same is to be published in the Trade Mark Journal. In
other cases, where the office objections cannot be waived or found not met, a hearing opportunity is
offered to the applicants in all those cases where a decision can adversely affect the interest of the
applicant, a hearing opportunity is given as per law. It is expected that if reply is submitted against the
office objections, the same should be considered by the authorized officers expeditiously and serially as per
priority based the date of filing of response to the examination report.

ii. Show-cause hearing: In case the objection/s raised by the office are not met after consideration of reply

to the examination report, the application moves for show cause hearing. In show cause hearing, the

hearing notices are issued serially to the applicant/ agent through the system and allotment of the

cases to the Hearing officers is also done by the TM system automatically.

3. Advertisement

D. Post Advertisement Processing:

After the acceptance of the mark, trademark is published in Trade Mark Journal. If no opposition is filed
within four months from the date of publication of the trademark, the published trademark becomes
eligible for registration. The issuance of registration certificate is done through automated Trade Mark
system. The certificate gets automatically issued if no opposition is filed within the prescribed period or
where the application has not already been withdrawn by the Registrar of Trade Marks at the request of
the applicant. The Trade Mark once registered is valid for 10 years. The same can be renewed after every 10
years for an indefinite period by paying the prescribed fee on the prescribed form.

4. Opposition:

If the trademark is opposed by any third party after the publication, the same needs to be disposed of as
per rules after giving proper hearing opportunity to both the parties. If the opposition is dismissed, the
trade mark proceeds for registration and registration certificate is issued to the applicant. In case
opposition is allowed, the application gets refused as per law. It is expected that if any application is
opposed, the same should be disposed serially based on the compliance or non-compliance by the party
(i.e. Applicant or Opponent) as per provisions of the Trade Marks Act and Rules. Procedure for disposal of
the Rectification proceedings shall be similar to the opposition procedure subject to the provisions of the
Trade Marks Act and Rules.

5. Registration
The last step in the registration procedure is to get the certificate of registration. After the
mark goes through all the legal processes related to the opposition, and if the opposition is
cleared, the applicant will receive the certificate. In case where there is no opposition or
any false opposition filed, after 4 months of publication period is over, within 7 days an
auto- generated registration certificate will be issued to the applicant by the trademark
registry office which needs to be renewed after every 10 years for keeping it alive. A
trademark registration procedure is fast and simple, although not mandatory, but it is
recommended to get assistance from a trademark lawyer for registration of the same to
make it an easy and smooth procedure.

Benefits of registering trademark

The registration of a trademark confers upon the owner the exclusive right to the 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 (R), 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.

Ans 13 Passing off

Black’s Law Dictionary defines passing off as “the act or an instance falsely representing one’s own product
as that of another in an attempt to deceive potential buyers. Passing off is actionable in tort under the law
of unfair competition. It may be actionable as trademark infringement”.

Key Elements of Passing Off

To succeed in a passing-off action, the claimant typically needs to prove the following elements, often
referred to as the "Classical Trinity":

1. Goodwill  The claimant must establish that their business or goods have acquired a reputation or
goodwill among the public.  Goodwill refers to the attractive force that brings in customers, often tied to
the business name, logo, or product appearance. Example: A local bakery known for its unique branding
and quality.

2. Misrepresentation  The defendant must have misrepresented their goods, services, or business as
being associated with the claimant.  The misrepresentation must likely confuse or deceive consumers.
Example: A competitor uses packaging that closely resembles that of the claimant's bakery, misleading
customers into thinking it’s the same product.

3. Damage  The claimant must show that they suffered or are likely to suffer damage due to the
defendant’s misrepresentation.  Damage can include: o Loss of sales or customers. o Harm to reputation. o
Dilution of brand identity. Example: The bakery loses customers because they mistake the competitor’s
inferior product for the original.

In the case of Mahendra and Mahendra Paper Mills Ltd. vs. Mahindra and Mahindra Ltd. [AIR 2002 SC 117]
Supreme Court broadly stated, in an action for passing off on the basis of unregistered trade mark generally
for deciding the question of deceptive similarity the following factors are to be considered—

The nature of the marks i.e. whether the marks are word marks or labels marks or composite marks
i.e.both words and label works.

The degree of resembleness between the marks, phonetically similar and hence similar in idea.

The nature of the goods in respect of which they are used as trademarks.

The similarity in nature, character and performance of the goods of the rival traders.

Class of purchasers who are likely to buy the goods bearing the marks they require, on their education

and intelligence and a degree of care they are likely to exercise in purchasing and /or using the goods.

The mode of purchasing the goods or placing orders for the goods.

Any other surrounding circumstances which may be relevant in the extant of dissimilarity between the
competing marks.

Ans 14 Infringement of trademark

A person shall be deemed to have infringed a registered trade mark, if he uses a mark which is identical
with or similar to the registered trade mark, and is used in relation to goods or services which are not
similar to those for which trademark is registered; and the registered trade mark has a reputation in India
and the use of the mark without due cause would take unfair advantage of or is detrimental to the
distinctive character or repute of the registered trade mark.

Section 29 dealing with infringement of trademarks

Essentials of infringement

1. Using a trademark by a person other than its registered proprietor or registered user
2. Using either the whole of the registered tm or an adapted one by making few additions and
alterations
3. Using such infringement mark in relation to the regular trade of the registered proprietor or user
4. The infringing tm is identical or similar to the trademark already registered
5. The likelihood of causing confusion on the part of the public
6. Advertising of the tm registered as if it is owned by unauthorised user

Different forms of infringement

1. Using a deceptively similar mark- the deption or confusion may be.

A. as to goods or services themselves- here a person may buy the goods seeing one mark thinking that it is
the brand which is in his mind which in fact may not be the case

B. as to the trade origin- here a person may looking at the mark buy the goods thinking that it is coming
from the same source as some other bearing a similar mark with which he is familier

C. as to the trade connection- Here a person looking at the mark may not think that it is the same as opwn
with a diff brand in his mind, but the similarity may make him believe that the two are in some ways or
other connected with each other

2. Taking substantial features of the mark already registered and in use would amount to infringement

3. using of the plaintiffs mark on the reconditioned goods

4. Printing of labels without authorisation

5. copying of a mark amounts to infringement

Remedies

Types of Remedies for Trademark Infringement 1. Civil Remedies Trademark owners can initiate legal action
against infringers through civil courts. Key remedies include: 1. Injunction (Restrictive Orders): o A court
order that prohibits the infringer from continuing the unauthorized use of the trademark. o Types: 
Interim Injunction: Temporary relief granted during the trial.  Permanent Injunction: Granted after the
trial, permanently restraining the infringer. Example: A court orders an infringer to stop using a logo similar
to a well-known brand's trademark. 2. Damages or Account of Profits: o The trademark owner can seek
monetary compensation for:  Loss of sales or reputation.  Profits unlawfully earned by the infringer. o
Courts may award:  Compensatory Damages: To cover actual losses. Page 297 of 306  Punitive
Damages: To penalize the infringer and deter future violations. 3. Delivery Up or Destruction: o The court
may order the infringer to hand over or destroy all infringing goods, packaging, and materials. 4.
Declaratory Relief: o A declaration by the court that the trademark owner’s rights have been infringed. 2.
Criminal Remedies In jurisdictions where trademark infringement is a criminal offense, the trademark
owner can file a complaint for criminal action. 1. Fines and Penalties: o The infringer may be fined heavily,
depending on the severity of the offense. 2. Imprisonment: o Infringers may face imprisonment as per the
applicable laws (e.g., in India, imprisonment of up to three years for trademark infringement). 3. Seizure of
Infringing Goods: o Law enforcement authorities can seize counterfeit goods bearing the infringing
trademark. 4. Search and Seizure Operations: o Authorities may conduct raids to confiscate counterfeit
goods.

3. Administrative Remedies

Administrative remedies may be available through trademark offices or customs authorities.

1. Opposition Proceedings:

o Trademark owners can file opposition against the registration of a conflicting

mark.

2. Rectification or Cancellation:

o Request the trademark registry to remove or modify an infringing mark from

the register.

3. Customs Enforcement:

o Trademark owners can record their trademarks with customs authorities to

prevent the import or export of counterfeit goods.

Ans 15 Patent

Section 2(1) (m) of the Patents Act, 1970, defines the term patent as to mean a patent for any invention
granted under Patents Act. An invention is considered as new (novel), if it is not anticipated by prior
publication in patent and non-patent literature, i.e., an invention is novel if it has not been disclosed in the
prior art, where the prior art means everything that has been published, presented or otherwise disclosed
to the public before the date of filing priority date of complete specification. An invention is considered as
novel, if it has not been anticipated by prior use or prior public knowledge in India.

In the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, it was
held by the Hon’ble Supreme Court of India that the object of Patent law is to encourage scientific research,
new technology and industrial progress. A limited-time grant of the only right to own, use, or sell a
patented method or product encourages the development of new commercially useful inventions. The
disclosure of the invention to the Patent Office, which becomes public domain after a predetermined
duration of the monopoly, is the cost of the monopoly grant.

Key Features of a Patent 1. Exclusive Rights: o The patent holder has the exclusive right to manufacture,
use, sell, and distribute the patented invention. 2. Territorial Nature: o Patent protection is territorial,
meaning it applies only within the jurisdiction where the patent is granted. 3. Limited Duration: o Patents
are generally granted for a maximum period of 20 years from the filing date. 4. Public Disclosure: o To
obtain a patent, the inventor must disclose the invention in detail, enabling others to replicate it after the
patent expires. 5. Transferability: o A patent can be assigned, licensed, or sold to another party. 6. Technical
Subject Matter: o Patents are granted for technical inventions, not abstract ideas or artistic works.

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.

Invention

It may be noted that Section 2(1) (j) of the Act, defines invention as to mean a new product or process
involving an inventive step and capable of Industrial application. Capable of industrial application, in
relation to an invention, means that the invention is capable of being made or used in an industry as
defined under Section 2(1) (ac) of the Act.

Also, Section 2(1) (l) defines the term new invention as to mean any invention or technology which has not
been anticipated by publication in any document or used in the country or elsewhere in the world before
the date of filing of patent application with complete specification, i.e. the subject matter has not fallen
into public domain or that it does not form part of the state of the art.

As per legal regime of Intellectual Property Right, invention is something construed as new substance or
altogether new process having inventive stage/action and potential of industrial usage & relevance.
Inventive stage/step include certain aspects of action which are not palpable & evident to the person
experienced in the art. The real purpose of patent system is stimulating new innovative practices &
technological development to market for public interest.

In Raj Prakash v. Mangat Ram Choudhary AIR 1978 Delhi 1, it was held that inventive creation, as is notable,
is to discover something or find something not found or found by anybody previously. It isn’t essential that
the invention ought to be anything confounded. The fundamental thing is that the creator was first to
embrace it. The main issue in this manner, is that each basic creation is asserted, as in the form of novelty
or new character, it will be considered as an invention and the cases & specifications must be perused in
that light.

What are not inventions

The following are not inventions within the meaning of Section 3 of the Act:

a) an invention which is frivolous or which claims anything obviously contrary to well established natural

laws;

b) an invention the primary or intended use or commercial exploitation of which could be contrary to

public order or morality or which causes serious prejudice to human, animal or plant life or health or to

the environment;

c) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any

living thing or non-living substances occurring in nature;

d) the mere discovery of a new form of a known substance which does not result in the enhancement

of the known efficacy of that substance or the mere discovery of any property or mere new use for a

known substance or of the mere use of a known process, machine or apparatus unless such known
process results in a new product or employs at least one new reactant;

Explanation to clause (d) clarifies that salts, esters, polymorphs, metabolites, pure form, particle size,

isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall

be considered to be the same substance, unless they differ significantly in properties with regard to

efficacy.

e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the

components thereof or a process for producing such substance;

f) the mere arrangement or re-arrangement or duplication of known devices each functioning

independently of one another in a known way;

g) a method of agriculture or horticulture;

h) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment

of human beings or any process for a similar treatment of animals to render them free of disease or to

increase their economic value or that of their products;

i) plants and animals in whole or any part thereof other than micro-organisms but including seeds,

varieties and species and essentially biological processes for production or propagation of plants and

animals;

j) a mathematical or business method or a computer programme per se or algorithms;

k) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including

cinematographic works and television productions;

l) a mere scheme or rule or method of performing mental act or method of playing game;

m) a presentation of information;

n) topography of integrated circuits;

o) an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known

properties of traditionally known component or components;

Section 4 prohibits the grant of patent in respect of an invention relating to atomic energy falling within

Sub- section (1) of Section 20 of the Atomic Energy Act, 1962.

Kinds of patent