IP LAW: COPYRIGHT, TRADEMARK & PATENT
INTRODUCTION
In recent years, Intellectual Property Law has been the fastest expanding legal field. It goes without saying that without assurances of protection regarding one’s innovation, creative works, or brand, organizations and individuals are unlikely to invest their time, effort, and money in such ventures. As a result, robust intellectual property laws and increased creativity go hand in hand.
Entrepreneurs who possess a trademark, copyright, or patent for a product or technology have a competitive edge, but obtaining one can be a lengthy and difficult procedure. Before you begin the copyright, trademark, or patent application process, it’s critical to understand the differences between them, how they can help protect your company’s intellectual property, what they protect, and where you need to apply.
Intellectual property is a wide field. However, a thorough understanding of the most prevalent rights afforded by IP protection is vital. The following are the most frequently requested:
- Copyright: Protection is automatically granted to the original creative or intellectual work
- Trademark: This is a brand and element which distinguishes your goods and services from those of your competitors and other traders
- Patent: This concerns obtaining protection for new inventions that are new, original, and useful.
COPYRIGHT
Works: Boks, lectures, dramatic and musical works, cinematography, drawings, paintings, architecture, sculpture, photographs, illustrations, maps, plans sketches, etc.
Rights: To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; To perform the work publicly in person or through audio transmission.
Validity: Registration is not mandatory but recommended. Valid through the lifetime of the author and 60 years after his/her death. The owner has protection in most countries.
Governed Under: The Copyright Act, 1957.
Types of Protection & Works: Protection of original creative expressions like literary works, artistic works, dramatic works, etc.
Secures: Copyright secures Creative or intellectual creations.
Provisional Application Requirement: No provisional application is required.
Symbolic Representation: No symbolic representation to show registration.
PROCEDURE
Procedure for Copyright Registration
The registration method is as follows:
- The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed
- separate applications should be made for each work; each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules.
- the applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed.
- The Power of Attorney should also be enclosed, signed by the party, and accepted by the advocate.
- Application Processing Time
After you submit your application and receive a diary number, you must wait a minimum of 30 days to ensure that no objections are made to the Copyright office against your claim that the work was created by you.
TRADEMARK
Marks: Word marks, a logomark or a slogan, shapes, and unconventional marks like colors, sounds, gestures, animation, holograms, etc are also registrable as a trademark.
Rights: Exclusive right to use the mark and prevent anyone from using it without permission. It also gives the owner the right to license, assign and sell the mark in return for some compensation.
Validity: 10 years which can be made perpetual, as long as renewed every 10 years. Should be applied separately in every country in which protection is required and has a market.
Governed Under: Trade Marks Act, 1999
Secures: Trademarks secure the branding under which products and services are sold.
Provisional Application Requirement: Trademark registration does not include provisional application, but it requires a trademark search.
Symbolic Representation: Used when registration is in the process: ™
Used when registration is complete: ®
PROCEDURE
Trademark registration, on the other hand, is a lengthy procedure including several procedures. The trademark registration process in India is discussed in this article.
- Search for a trademark
The entrepreneur or trademark professional must do a trademark search of the trademark database before beginning the trademark registration process. A trademark search will reveal whether or not a trademark is identical or similar to one that has already been registered with the trademark registrar. The Trademark Registrar website can be used to do a trademark search.
- Filing a Trademark
After completing a trademark search, you can file an application for trademark registration with the Trademark Registrar. The trademark registration application must be completed in a prescribed way and filed with the trademark registration fee.
A trademark application can be filed in person or online at one of the five Trademark Registrar Offices in the state.
The following information must be included in a trademark registration application:
Trademark owner’s name and address Classification or Trademark Class Trademark in use since a certain date
The goods or services are described in detail.
- Allotment of a Trademark Application
Within one or two working days of filing a trademark registration application with the Trademark Registrar, a trademark application allotment number is issued.
The application for a trademark can then be monitored online using the Online Trademark Search tool.
The trademark owner can usually add the TM symbol next to the logo after receiving a trademark application allotment number.
- Codification of Vienna
The Vienna Classification, often known as the Vienna Codification, is an international classification of figurative features of trademarks that was established by the Vienna Agreement (1973).
The Trademark Registrar will apply the Vienna Classification to the trademark based on the figurative features of marks once the trademark registration application is filed.
The trademark application status is normally “Sent for Vienna Codification” while this process is in progress.
- Examining Trademarks
The trademark registration application will be assigned to a Trademark Officer in the Trademark Registrar Office once Vienna Codification is finished.
Following that, the Trademark Officer would check the trademark application for accuracy and produce a trademark examination report.
The Trademark Officer can accept the trademark registration application and allow it to be published in the trademark journal, or he or she might object to the trademark registration application.
If the Trademark Officer objects to the trademark registration application, the trademark applicant has the opportunity to appear in front of the Trademark Officer and address the objections.
The trademark would be permitted for trademark journal publication if the Trademark Officer was satisfied with the trademark applicant’s reasoning.
The trademark applicant has the opportunity to appeal the Trademark Officer’s decision to the Intellectual Property Appellate Board if the Trademark Officer is not satisfied with the justifications.
- Publication in the Trademark Journal
The proposed trademark is published in the Trademark Journal once the Trademark Registrar accepts the trademark registration application. The trademark journal is published weekly and contains all of the trademarks that the Trademark Registrar has approved. After the trademark is published in the trademark journal, the public has the right to object to the trademark registration if they believe it would harm them.
If no objections are lodged within 90 days of the mark’s publication, it will usually be registered within 12 weeks to months.
If a third party objects to the trademark registration application, the Trademark Hearing Officer will hold a hearing.
Both the trademark applicant and the opposing party have the opportunity to testify at the hearing and explain why the trademark application should be registered or rejected.
The Trademark Hearing Officer will decide whether the trademark registration application should be allowed or rejected based on the hearings and evidence presented. It is also possible to appeal the Trademark Hearing Officer’s decision to the Intellectual Property Appellate Board.
- Registration of Trademarks
The trademark manuscript and trademark registration certificate will be prepared and sent to the trademark application if there are no objections or oppositions to the trademark registration application. Once the trademark registration certificate is issued, the trademark is considered to be a registered trademark of the owner, granting the trademark owner exclusive use of the mark. The ® symbol can now be placed next to the logo or trademark.
PATENT
Inventions will be patented: Novel or Original, has an inventive step (non-obvious), and has some industrial application.
Rights: Exclusive authority over the patented invention, right to exclude others and exploit the patent and earn from it.
Validity: Patent protection is a territorial right and therefore it is effective only within the territory of India. Separate patents are required to be filed for each country where protection is required. A patent is valid for a period of 20 years after which it goes into the public domain.
Governed Under: The Patents Act, 1970
Secures: Patent secures inventions that are useful for the world and has some use.
E.g. New inventions in the pharmaceutical industry.
Provisional Application Requirement: A provisional application gets you 12 months of time to file a complete specification and a priority date claim.
Symbolic Representation: No symbolic representation to show registration.
PROCEDURE
Step 1: Describe the invention (idea or concept) as thoroughly as possible.
Start writing things down on paper or in a word processor document, and you’ll notice that your idea will become clearer (invention). Begin with a basic sketch, system diagram, block diagram, or pertinent specifics of your unique idea. You can include information such as the problem it solves, the components that make it up, and so on.
We don’t expect you to be perfect here; all we want is for you to have every aspect of your concept or creation in front of you.
You should be prepared before sharing your invention disclosure or discussing your idea in a meeting or over the phone. Signing a Non-Disclosure Agreement (NDA)
A non-disclosure agreement is an agreement between you and a patent agent/attorney or Intellectual Property firm to keep your innovation confidential. In other words, the patent attorney will enter into a non-disclosure agreement with you (the inventor) in which you will undertake to keep your innovation confidential/secret and not misuse it. It is for your protection and secrecy, and signing an NDA has no (zero) cost.
Step 2: Determine whether or not your idea is original (Novelty Search / Patentability Search) (this is an optional step)
When we compare our invention to existing prior arts, we need at least certain aspects of it to be innovative. By conducting a thorough search and study of all aspects of our invention, we will be able to determine whether there are any 100% overlapping prior arts. Furthermore, the aspects of our invention that are discovered to be unique following a novelty search can be used for informed patent application drafting (since we now know what is and is not original), which can aid in getting a patent awarded for your innovation.
Step 3: Drafting a patent application / drafting a patent
Patent drafting/writing is a specialized profession that takes years of skill and knowledge of patent law to prepare a solid patent application. Simply read some of your domain’s awarded patents to get an idea. A patent is a techno-legal document that is both technical and legal. Writing a patent as a project report or a technical thesis and submitting it to the patent office on your own would be a mistake that would result in the loss of the possibility to patent your innovation.
When drafting claims, writing thorough descriptions, writing alternative embodiments of the invention, detailing inventive steps, and so on, there are numerous rules and considerations to be made that a novice or inexperienced patent writer may overlook, resulting in inadequate protection for innovation (or sometimes even rejection of patent)
Cost: A patent attorney’s professional costs for patent drafting or authoring range from Rs. 25,000 to Rs. 40,000.
Time: around 8-15 working days are necessary.
Step 4: Filing the Patent Application
When a patent is drafted and reviewed by you (the inventor), it would be filed in the government patent office and a receipt would be generated with the patent application number.
Step 5: The application is published.
After filing the complete specification with the patent application, the application is published 18 months after the first filing. However, if you don’t want to wait until the 18-month period has passed, you can submit an early publication request together with the required costs. In most cases, the patent application is published within one month of receiving an early publication request.
Step 6: Request for Examination.
The patent application is only considered if a request for examination, also known as an RFE, is received. When the controller receives this request, he or she assigns your patent application to a patent examiner, who reviews it using various patentability criteria, such as whether the invention falls under patentable subject matter.
Is there a sense of novelty about it?
Is there an Inventive or Non-obvious phase in it?
Is it capable of being used in an industrial setting?
After analyzing the patent application for the terms listed above, the examiner generates a first examination report. This is referred to as FER (First examination report). Patent prosecution refers to any actions conducted in connection with a patent application prior to the issuance of a patent. The examiner’s first examination report usually contains previous arts (documents that existed before the date of filing) that are similar to the claimed invention, and the same is disclosed to the patent applicant (you). 18th Form The following are the fees for a request for examination RFE. E-filing
Expedited application review is governed by Rule 24C.
Step 7: Address objections
The vast majority of patent applicants will face objections, which will be noted in the first examination report (also known as FER). You should work with a patent attorney (patent agent) to analyze and comprehend the examination report, and then write a response to the objections expressed in the report. The inventor and patent agent write and transmit an examination answer that aims to persuade the controller that his invention is patentable and meets all patentability criteria. If necessary, physical hearing or video conferencing is scheduled.
Step 8: A patent is granted.
Once it is determined that the patent application meets all patentability conditions, it will be placed in order, for a grant. The patent grant is announced in the patent journal, which is published on a regular basis.
CONCLUSION
People’s awareness of intellectual property rules has risen dramatically over the years. Almost every commercial transaction involves IP rights, which require protection since they protect a company’s valuable assets. The company’s rights are not only secure, but they also serve as an incentive for increased inventiveness and are a big motivator for individuals to fund research and improvement projects around the world.
The IP industry is built on patents, copyrights, and trademarks. More registrations for the protection of a person’s originality and hard work are being seen. When it comes to defending an entity’s uniqueness, the rights outlined above are all identical and yet so diverse. For a limited time, all of these rights cover various forms of work, inventions, products, and services. It is our responsibility to educate those around us about their intellectual property rights and the repercussions of their ignorance. There would be no respect for ideas and innovations, no place for hard effort, and unauthorized use of an entity’s valuable asset if these rights were not safeguarded.
WRITTEN BY –
Ms. Bhavika Maheshwari