ONLINE ANSWER SHEET SUBMISSION

NAME- MOHD IZAAN RIZVI

CLASS- 8TH SEMESTER (REGULAR)
ROLL NO- 33
SUBMISSION DATE- 30/05/2020
SESSION- 2019-2020
Question 1- “Strengthening and enforcing Intellectual Property Rights regimes
will positively affect the economic growth and development of developing
countries, though attracting more foreign direct investments, increasing exports
and encouraging innovations.” Discuss.

Answer 1-

Introduction-

Intellectual property rights (IPR) - the copyrights, patents, trademarks and

similar rights upon which the lion’s share of creative and innovative products
and services rely—have a vital role in growing the economies of developed and
developing countries all over the world, in spurring innovation, in giving large
and small firms a range of tools to help drive their success, and in benefiting
consumers and society through a continuous stream of innovative, competitive
products and services and an expansion of society’s overall state of knowledge.
Intellectual property rights protection works in five main areas:

 Intellectual Property benefits the economy

 Intellectual Property protection promotes innovation
 Intellectual Property protection helps firms monetize their innovations
and grow
 Intellectual Property protection help SMEs
 Intellectual Property protection benefits consumers and society

As the ‘knowledge economy’ advances, more and more of the value that firms
and the overall economy achieve will come from high value-added
intangibles—including IP in inventions, brands and works. In many companies
even now, 80% or more of their market value is attributable to intangibles,
including IP. In some small companies, the only value is the intellectual
property they own in an exciting new innovation that they have developed. IPR
has truly become an ‘intellectual currency’ helping to promote economic
growth, company competitiveness and innovation world-wide.

Relationship between IPR Protection and Economic Growth

The different forms of intellectual property—patent, copyright, trademark and

various other similar legal rights—traditionally were viewed as state protections
of natural or moral rights. Today, however, IP rights are recognized as an
important economic mechanism, an ‘intellectual currency’ of sorts, that
encourages research and development (R&D), creation and innovation in
several significant ways.

IPR promotes innovation by providing the legal and economic framework for
market-based incentives and rewards that:

 pay for research and development,

 support the promotion and distribution of the innovations that are thus
developed, in the form of products, services and processes in the market,
 promote cultural expression and diversity,
 make technologies more widely available through the mechanism of
licensing,
 Increase society’s overall State of knowledge through the information
disclosed in patent applications and publications,
 promote technology transfers, and
 broaden the dissemination of government.

The link between IPR protection and growth passes through innovation. So
innovation is important for economic growth, but IPR protection is important
for innovation, this way IPR protection becomes important for the economic
growth too.

Countries tend to acquire improved technologies, through a variety of channels

like: Domestic innovation; Trade; FDI; Licensing; Imitation; Piracy.

High, middle and low- income countries differ between them among other
things, on the relative importance of these channels. So their level of
development determines the way they get the improved technology. What
happens when strengthening the IPR protection for these countries? This will
impact these channels in different ways and its impact on growth rates will
differ across countries, depending on their level of development.

Impact of I.P.R on Foreign Domestic Investment of country-

Since the agreement on Trade-Related Aspects of Intellectual Property Rights

(TRIPs) was signed in the Uruguay Round, developing countries that are
members of the World Trade Organization (WTO) have been under pressure to
adopt a set of minimum standards on intellectual property rights (IPR). To
comply with these international agreements, some developing countries have
recently strengthened their IPR protection. For example, according to the
indexes in Park (2008), patent protection in Brazil, China, and India generally
strengthened between 1990 and 2005 compared with that before 1990.

This change toward strengthening IPR protection in developing countries is

likely to have a great impact on innovation and foreign direct investment (FDI)
in these countries for several reasons. For example, strengthening IPR
protection in a developing country makes it difficult for local firms to copy
products developed by other firms and decreases the risk of technology
imitation in that country. Thus, strengthening IPR protection is likely to
influence the decision of a firm with advanced technology on whether to
transfer production to a developing country. In addition, a decrease in imitation
changes the monopolistic rent that the inventor of a good can earn, which is
likely to influence R&D activities by firms in developed countries.

India has rightly declared that its IP laws are TRIPS-compliant. However,
current global competitiveness standards require that India treat internationally
agreed standards as a floor rather than a cap as it defines its goals in IPR
protection and implementation.

On the one hand, there is empirical evidence to suggest that stronger IPRs may
positively affect the volume of FDI and exports, particularly in countries with
strong technical absorptive capabilities where the risk of imitation is high.
Studies show that stronger IPRs seem to (1) encourage FDI in production and
R&D (rather than in sales and distribution); (2) encourage international
technology transfer through market-based channels in developing countries; (3)
encourage domestic innovation, at least in emerging industrialised economies.
Strong IP standards can fuel the growth of domestic innovative industries, help
attract greater foreign investment, and bolster India’s economic prosperity and
global competitiveness. On the other hand, there are robust cross-country
studies that assess the performance of nations, over a period of time, in
innovation capabilities and effectiveness of underlying IPR regimes.

Intellectual Property, Inventions and Innovations-

The term ‘IP’ refers to unique, value-adding creations of the human intellect
that results from human ingenuity, creativity and inventiveness. An IP right is
thus a legal right, which is based on the relevant national law encompassing that
particular type of intellectual property right.

IP plays an important role in facilitating the process of taking innovative

technology to the market place. At the same time, IP plays a major role in
enhancing competitiveness of technology-based enterprises, whether such
enterprises are commercializing new or improved products or providing service
on the basis of a new or improved technology.

For most technology-based enterprises, a successful invention results in a more

efficient way of doing things or in a new commercially viable product. The
improved profitability of the enterprise is the outcome of added value that
underpins a bigger stream of revenue or higher productivity.

An innovative new or improved product that meets customer expectations offers

an existing or new business, new market territory without competition for so
long as it retains its innovative advantage. The IP system plays a significant role
in helping a business to gain and retain its innovation-based advantage. As a
consequence, the competitive edge that an entrepreneurial business may gain
with a basic or disruptive innovation is likely to be longer lasting than that
obtained merely from an improvement innovation, assuming that the
technological barriers to competitors taking advantage of similar innovations
are approximately equivalent, since a basic innovation establishes a new class of
product or service, entry of competition requires that the opportunity provided
by that class is recognized by a potential competitor before it attempts to enter
the market. In the case of an improvement innovation, not only are competitors
for the class of product already in place, but since the improvement innovation
typically amounts to a better, faster, or cheaper way to build the product, its
advantages are far more quickly understood and replicated.8 Hence the need to
use the tools of the IP system for both types of innovations, except that
generally there is a need for devising an offensive IP strategy for a basic
innovation versus a defensive IP strategy for an improvement innovation.

A survey of economic studies reveals that patents are the most preferred IP
rights in relation to technological innovations. This seems to be due to the use
of the terms ‘innovation’ and ‘invention’ as synonyms. This may explain why
studies on innovation have, in many cases, treated patents as proxy input for
innovation. To be specific, the number of patents owned by an enterprise has
often been used as one of the main indicators for determining innovation
intensity of that enterprise. In addition, patents are also used as a measure of
output of innovation.

Patent systems and economic growth-

Recent research has tended to focus on the effect of the strength of patent law
protection on economic growth rather than the strength of patent enforcement.
By not focusing on the effectiveness of patent enforcement there is a danger of
missing out on one of the two elements of patent systems. Existing studies
implicitly assume that a proxy for the strength of patent legal protection would
also approximate to the effect of the enforcement aspect of a patent system. The
strength of the two aspects comprising national patent systems, however, has
varied significantly in the years following TRIPS.

The strength of patent law protection has increased among WTO member
countries, due to the requirements set out by TRIPS, whereas the strength of
patent enforcement has not received a similar or equivalent boost. This has
resulted in a high divergence between the levels of patent legal protection
strength and patent enforcement strength. While results of studies looking at the
effect of the strength of patent legal protection prior to the implementation of
TRIPS may implicitly provide an indication about the effect of patent
enforcement strength on economic growth, this has no longer been the case in
the years since the signing and implementation of TRIPS.
A number of studies on the effect of the strength of patent law protection on
economic growth find a highly significant positive relationship, using data
covering the years prior to the signing of the TRIPS agreement.

Question 2- How can inventive step of an invention be determined? Also

discuss the circumstances under which Patent can be surrendered and revoked.

Answer 2-

Introduction –

William James once said: “Genius means little more than the faculty of
perceiving in an unhabitual way.” His observation seems particularly apposite
in the context of determining inventive step in patent examinations. This plays a
critical role in deciding the fate of a patent application. The various tests for
assessing obviousness take into account the nature of the invention, the current
state of the art and whether the invention would be obvious to a person skilled
in the art. Section 2(1)(ja) of the Patents Act sets out the criteria for
patentability and defines 'inventive step' as “a feature of an invention that
involves technical advance as compared to the existing knowledge or having
economic significance or both and that makes the invention not obvious to a
person skilled in the art".

Inventive Step of an Invention

The major factors to consider when examining a patent application thus relate to
the following:

 Defining the person skilled in the art;

 Assessing inventive step; and
 Evaluating the prospective commercial viability of the invention.
These factors are largely influenced by the regimes in parallel foreign
jurisdictions. However, the Patent Office interprets the terms 'technical
advancement' and 'economic significance' subjectively. These terms are
presumably dealt with simultaneously by Section 2(1) (ac) of the act, which
defines “capable of industrial application”, alongside Section 3, which sets out
an exhaustive list of inventions which are not patentable in India.

Since there are only a handful of cases that have dealt with inventiveness of
patent applications, the Patent Office appears to follow the criteria for assessing
inventive step laid down by Supreme Court in M/s. Bishwanath Prasad Radhey
Shyam v. M/s. Hindustan Metal Industries.

As per the criteria, 'If a competent craftsman (or engineer as distinguished from
a mere artisan), endowed with the common general knowledge at the specific
date of making the patent application (who was faced with the problem solved
by the person making the application, but without the actual knowledge of said
patented application) is able to reach the present invention', the subject matter of
said patent application is said to not have inventiveness. The apex court in the
above-mentioned case said that "It is important that in order to be patentable, an
improvement on something known before or a combination of different matters
already known, should be something more than a mere workshop improvement;
and must independently satisfy the test of invention or an 'inventive step'.

To be patentable, the improvement or the combination must produce a new

result, or a new article or a better or cheaper article than before. The
combination of old known integers may be so combined that by their working
interrelation they produce a new process or improved result. Mere collection of
more than one integer or things, not involving the exercise of any inventive
faculty, does not qualify for the grant of a patent".
Suppose a person (applicant) makes a patent application in the field of invention
F, having three new features A, B and C. If any person skilled in art of F, or
practicing in the field of F, is motivated with his ordinary skill to combine A, B
and C and reach the present invention, then the subject matter of present patent
application is said to lack inventive step. Simply put, if a patent application only
has minor changes to the prior art (or existing knowledge), then the same would
be obvious to a person skilled in the art, which subsequently would make the
invention non-inventive.

However, it is also essential to understand that even if the differentiating

feature(s) [features A, B, C from the above illustration] of the claimed invention
is found to be non-obvious to a person skilled in the art, but the same fails to
provide any technical and/or economic advantage over the current state of art,
the claimed invention will still lack an inventive step in India. Therefore, apart
from evidencing non-obviousness of the differentiating feature(s) of the claimed
invention to a person skilled in the art, it is equally also important to indicate the
technical and/or economic advantage of those differentiating feature(s) of the
invention. This results in fulfilment of both the criteria provided under the
definition of the phrase 'inventive step'.

The criteria of technical advancement of patent applications is quite clear, and

as has been the norm in India, during inventive step assessment of patent
applications, more often than not the focus remains only on exhibiting technical
advancement of the claimed invention, and not on economic advantages (or
advancements). However, economic advantages, such as reducing the
manufacturing cost, reducing the operational cost, or reducing the maintenance
cost, etc. are also essential, especially in cases where the claimed invention is
technically not better than the cited prior art documents.
When Patent can be surrendered and revoked

What is revocation of a patent?

When a patent has been sealed or granted, it is not always the case that the
patent shall stay unhindered by any third party till the life of the patent. The
patent can be challenged by certain people on different grounds, and a method
to cause the same is by filing a revocation petition/ post-grant opposition
proceedings. This article focuses on the revocation proceedings.

Why does one file a revocation petition?

As the Patent Act does not presume Patents granted to be valid, rights granted
on such Patents cannot be absolute. Third parties which are required to seek
permission from Patentee for practicing any of the exclusive rights bestowed
upon him are also given a chance to challenge the validity of the Patents. This
challenge can be instituted on own as well as on Patentee asserting infringement
of Patent rights.

Who can file a revocation petition?

As per Section 64 of the Patent Act, 1970, the following persons can file the
petition in the High Court:

 Any person interested;

 The Central Government
 The person making the counter-claim in a suit for the infringement of a
patent.

Where can a revocation petition be filed?

Thus, a revocation petition can be filed in the Intellectual Property Appellate

Board by the interested person or the Central Government, or it can be filed as a
counter-claim in a suit for infringement at the High Court.
To bring in the aspect about jurisdiction of suits of infringement and the
corresponding revocation petitions, Section 104 of the Patents Act, 1970 states
that no suit of infringement can be brought before a court inferior to the District
Court having jurisdiction to try the suit and in the event of a counter-claim for
revocation of the patent made by the defendant, such suit for infringement and
the said counter-claim must be transferred to the High Court.

What are the grounds under which a revocation petition can be brought?

Under Section 64, the following are the said grounds:

 the invention, so far as claimed in any claim of the complete

specification, was claimed in a valid claim of earlier priority date
contained in the complete specification of another patent granted in India;
 the patent was granted on the application of a person not entitled to apply
therefor;
 the patent was obtained wrongfully in contravention of the rights or the
petitioner or any person under or through whom he claims;
 the subject of any claim of the complete specification is not an invention;
 the invention so far as claimed in any claim of the complete specification
is not new, having regard to what was publicly known to publicly used in
India before the priority date of the claim or to what was published in
India or elsewhere in any of the documents referred to in Section 13;
 the invention so far as claimed in any claim of the complete specification
is obvious or does not involve any inventive step, having regard to what
was publicly known or publicly used in India or what was published in
India or elsewhere before the priority date of the claim;
 the invention, so far as claimed in any claim of the complete
specification, is not useful;
 the complete specification does not sufficiently and fairly describe the
invention and the method by which it is to be performed, that is to say,
that the description of the method or the instructions for the working of
the invention as contained in the complete specification are not by
themselves sufficient to enable a person in India possessing average skill
in, and average knowledge of the art to which the invention relates, to
work the invention, or that it does not disclose the best method of
performing it which was known to the applicant for the patent and for
which he was entitled to claim protection;
 that the scope of any claim of the complete specification is not
sufficiently and clearly defined or that any claim of the complete
specification is not fairly based on the matter disclosed in the
specification;
 that the patent was obtained on a false suggestion or representation;
 that the subject of any claim of the complete specification is not
patentable under this Act;
 that the invention so far as claimed in any claim of the complete
specification was secretly used in India, otherwise than as mentioned in
sub-section (3), before the priority date of the claim;
 that the applicant for the patent has failed to disclose to the Controller the
information required by section 8 or has furnished information which in
any material particular was false to his knowledge;
 that the applicant contravened any direction for secrecy passed under
section 35
 that leave to amend the complete specification under section 57 or section
58 was obtained by fraud.
  that the complete specification does not disclose or wrongly mentions the
source or geographical origin of biological material used for the
invention;
 that the invention so far as claimed in any claim of the complete
specification was anticipated having regard to the knowledge, oral or
otherwise, available within any local or indigenous community in India or
elsewhere.

63. SURRENDER OF PATENTS.—

(1) A patentee may, at any time by giving notice in the prescribed manner to
the Controller, offer to surrender his patent.

(2) Where such an offer is made, the Controller shall publish the offer in the
prescribed manner, and also notify every person other than the patentee whose
name appears in the register as having an interest in the patent.

(3) Any person interested may, within the prescribed period after such
publication, give notice to the Controller of opposition to the surrender, and
where any such notice is given the Controller shall notify the patentee.

(4) If the Controller is satisfied after hearing the patentee and any opponent, if
desirous of being heard, that the patent may properly be surrendered, he may
accept the offer and, by order, revoke the patent.
Question 3- Discuss the historical development of copyright laws in India and at
the international level. Also write a short note on issues in a controversy
wherein a body representing thousands of music publishing companies,
including Universal, has threatened to sue video-sharing app TIK TOK for
copyright infringement.

ANSWER 3-

HISTORY OF COPYRIGHT LAW IN INDIA

Modern copyright law developed in India gradually, in a span of 150 years. The
first brush of India with copyright law happened in 1847 through an enactment
during the East India Company’s regime. The Act passed by Governor-General
of India affirmed the applicability of English copyright law to India.

According to the 1847 enactment, the term of copyright was for the lifetime of
the author plus seven years post-mortem and could not exceed forty two years
on the whole. Though the author refused publication after his death, the
Government had the authority to give licence for its publication. The act of
infringement was inclusive of unauthorized printing of a copyright work for
“sale, hire or export”, or “for selling, publishing or exposing to sale or hire”.
The suit for infringement under this act could be instituted in the “highest local
court exercising original civil jurisdiction”. The Act also specifically provided
that under a contract of service copyright in “any encyclopaedia, review,
magazine, periodical work or work published in a series of books or parts” shall
vest in the “proprietor, projector, publisher or conductor”. It was deemed that
the copies of the infringed work were the property of the proprietor of the
copyrighted work for all purposes.

Most importantly, the copyright in a work was not automatic unlike today.
Registration of the work with Home Office was mandatory for the protection of
rights under this enactment. However, the Act specifically reserved the
subsistence of copyright in the author, and his right to sue for its infringement to
the extent available in any other law except 1847 Act. At the time of its
introduction in India, copyright law had already been in the developing stage in
Britain for over a century and the provisions of the 1847 enactment were
reflected in the later enactments. The Copyright Act 1911, while repealing
earlier statues on the subject, was also made applicable to all the British
colonies including India. In 1914, the Indian Copyright Act was enacted which
modified some of the provisions of Copyright Act 1911 and added some new
provisions to it to make it applicable in India. The Indian Copyright Act 1914
remained applicable in India until it was replaced by the Copyright Act 1957.

COPYRIGHT LAW IN INDIA

In India, the Copyright Act, 1957 (as amended in 1999), the Rules made there
under and the International Copyright Order, 1999 govern Copyright and
neighbouring rights. This Act has been amended five times i.e.
1983,1984,1992,1999 and most recently in 2012. The Act is divided into 15
chapters with 79 sections. Moreover, the Central Government, by virtue of
section 78 is empowered to make rules by notification in the Official Gazette,
for carrying out the purposes of this Act.

Under the Act, a copyright office was established under the control of a registrar
of copyright who was to act under the superintendence and direction of central
government.

The principal function of this office was to maintain a register of copyright

containing the names or titles of work, the names and addresses of authors, etc.
The registrar had certain powers like entertaining and disposing of applications
for compulsory licenses and to inquire into complaints of importation of
infringing copies. A Copyright Board had been set up under the Act and the
proceedings before it are deemed to be judicial proceedings. The definition of
copyright included the exclusive right to communicate works by radio diffusion;
the cinematograph was given a separate copyright; the term of copyright
protection was extended from 23 to 50 years which was again extended to 60
years in 1992; term of copyright for different categories of work was also
specified. The right to produce a translation of a work was made coextensive
with other rights arising out of copyright.

Provisions relating to assignment of ownership and licensing of copyright

including compulsory licensing in certain circumstances, rights of broadcasting
organisations, international copyright, definition of infringement of copyright,
exceptions to the exclusive rights conferred upon the author or acts which do
not constitute infringement, special rights of authors31, civil and criminal
remedies against infringement and remedies against groundless threats or legal
proceedings were also introduced.

THE INDIAN COPYRIGHT AMENDMENT ACT 2012

The Amendment Act 2012 has extended the rights of the performer’s and
broadcasting organisations, the major thrust of amendments was on eliminating
unequal treatment meted out to lyricists and music composers of copyrighted
works incorporated in cinematograph film owing to the contractual practice in
Indian entertainment industry.

Under industry practice, lyricists and music composers were assigning all rights
in the work to the producer of the film for a one time-lump sum payment. This
meant that lyricist and music composers had no further right to any royalty
accruing from their work even if the work was being utilized in mediums other
than the cinematograph film. A proviso was added to Section 17, which
provided that clauses (b) and (c) of the section will have no impact on the right
of the author of the work incorporated in the cinematograph film, this was done
to give rights to the lyricist and music composers.

One of the major points of this amendment was to ensure that users of
copyrighted material users of copyrighted materials have affirmative access to
protected materials and their fair use rights are duly protected and enforced. For
meeting this requirement, the Amendment Act broadened the scope of statutory
and compulsory licensing provisions and also empowered the broadcasting
organisations to broadcast any prior published literary, musical work and sound
recording by giving a prior notice to the copyright owner and paying royalty at
the rates prescribed by the Copyright Board.

Further, amendments also recognised the need to ensure access to reading

material for the differently abled people by way of introduction of Section 52(1)
(zb), is broadly worded, and allows the conversion of any work in any
accessible format by any person or organisation till such reproduction is for the
benefit of persons with any disability and the converting organisation or person
is working on a non-profit basis ensuring that such copies are not used for
business. The Amendment Act has also tried to the Copyright Act in conformity
with technological advances and concomitant international developments and so
Section 65A and 65 B are added to promote digital rights management. The aim
of these provisions is to protect the rights of the copyright owners in the digital
domain.

Further, to ensure that the digital advances are useful for the users and do not
restrict access unreasonably and to protect the Internet Service Providers (ISPs)
in section 52(b) and 52(c) are included. These provisions protect ISPs from
liability of copyright infringement in case of transient and incidental storage of
the work for the purpose of providing access.
COPYRIGHT INFRINGEMENT ACCUSATION AGAINST TIK-TOK

Previously known as Musical.ly, Tik-Tok is a China-based social media

platform acting as a virtual Karaoke, allowing the users to create, share and
discover short music videos ranging from few seconds to about 2 minutes. This
3-year old application is most commonly used by the younger generating falling
in the age group of 16-30 years. Originally developed by Beijing’s Byte Dance
Telecommunication Company Ltd. this application has successfully been
declared as the 7th most downloaded application of the decade (2010-2019). As
a matter of fact, Tik-Tok has always been in the spotlight as a consequence of
Intellectual Property disputes especially the ones residing in Dramatic and
Musical Works.

Recently, this best-loved social media application was threatened by various

music publishing companies including Universal Music on account of copyright
infringement. Factually, since previous year, Universal and Tik-Tok has been
under various negotiations with respect to licensing agreement and royalties.
The issue raised by Universal is that without any prima facie agreement Tik-
Tok is allowing users to record and simply lip-sync on those evergreen tracks
owned by Universal against which it deserves regular royalties.

Commenting on this issue, one in-dispute Universal’s spokesperson said, “This

level of blatant infringement is something that is rarely seen at this scale by a
large multinational company. We feel that we’ve exhausted those efforts. As a
last resort, we turn to litigation.”

Moreover, at the outset of frequent disputes against Tik-Tok, CEO of National

Music Publishers Association, Mr. David Israelite observed that more than 50%
of the music available on the online music publishing market is being uploaded
but is still unlicensed with Tik-Tok. He told the Financial Times that, “a lawsuit
is a likely future step”.

Against such accusations, “We are proud to support the music industry with the
thousands of licenses that we have in place. The details of any agreements or
discussions between Tik-Tok and our partners are confidential” a Tik-Tok
spokesperson said.

CONCLUSION

The Copyright has traversed a great journey since the advent of printing press
and from the passing of the first statue i.e. statute of Anne till the Copyright
Act, 1957. This long journey has seen many developments such as the
advancement of technology, which has not only eased the dissemination of the
work but also has made the sharing easy and without boundaries. The Indian
Copyright Act has been amended time and again to bring it in conformity with
the changing times, technology and the needs of the society. A few years back
the knowledge about copyright was less but with the change in times the society
is becoming aware of the need of protection of the creative works in any form,
format and media.

Question 4- Explain the concept of trade mark and various rights conferred by
registration of trade marks under Trade Marks Act, 1999.

Answer 4- TRADEMARK

A trademark is a unique symbol or word(s) used to represent a business or its

products. Once registered, that same symbol or series of words cannot be used
by any other organization, forever, as long as it remains in use and proper
paperwork and fees are paid.
Unlike patents, which are granted for a period of 20 years, trademarks never
end. Companies do need to apply for them and receive ownership confirmation
with the U.S. Patent and Trademark Office in order to claim protection from
copycats, however.

Signs of a Trademark

To indicate that a trademark has been claimed companies use one of three
symbols:

 ™ - Using the trademark symbol after a logo or phrase alerts competitors

that you have claimed this symbol or phrase as your own, but you don’t
have to have even formally apply for it.
 ® - Only trademarks that have been officially granted by the Trademark
office can use the ® symbol, which stands for registered trademark.
 ℠ - Companies that sell services, not products, have the option to use the
service mark logo, but most use the ™ instead for simplicity.

Understanding Trademarks

A trademark can be a corporate logo, a slogan, a brand, or simply the name of a

product. For example, few would think of bottling a beverage and naming it
Coca Cola or of using the famous wave from its logo. It is clear by now that the
name "Coca Cola," and its logo belong to The Coca-Cola Company (KO).

Trademarks, Patents, and Copyrights

A trademark protects words and design elements that identify the source, owner,
or developer of a product or service. Different than a trademark,
a patent safeguards an original invention for a certain period of time, and there
can be many different types of patents. Unlike patents, copyrights protect
“works of authorship,” such as writing, art, architecture, and music.
The Trademarks Act, 1999, defines well-known trademark as, "a mark which
has become so to the substantial segment of the public which uses such goods or
receives such services that the use of such mark in relation to other goods or
services would be likely to be taken as indicating a connection in the course of
trade or rendering of services between those goods or services and a person
using the mark in relation to the first mentioned goods or services."1

Unlike other trademarks whose goodwill and reputation is limited to a certain

specified geographical area and to a certain range of products, well-known
trademarks have its goodwill and reputation protected across the nation and
across categories of goods and services. It is law that restricts the Trade Mark
Registry to allow and register any mark as a trademark which is deceptively
similar to any of the well-known trademark. For instance, Google has been
registered as a well-known trademark of Alphabet Inc., which thereby means
only Alphabet Inc. can register the term 'Google' for any category of goods and
services. Even if the service is not related to the Internet industry, no other
company but Alphabet Inc. can register 'Google' as its trademark.

In the case of Daimler Benz v. Hybo Hindustan [AIR 1994 Del 2369], the
defendant had been using the plaintiff's logo and the word 'Benz' for which the
plaintiff sought injunction against such use of his logo. The court while
recognizing plaintiff's logo as a well-known trademark on the ground of trans-
border reputation and goodwill granted injunction against the impugned use of
logo by the defendant.

In another case of Rolex Sa v. Alex Jewellery Pvt. Ltd. &Ors. [2009 (41) PTC
284 (Del.)], the defendants were using the trade name "Rolex" of the plaintiff
while dealing in artificial jewellery for which the plaintiff brought an action
against the defendant in order to prevent him from using his trade name further.
The court held that the plaintiff's business dealt with watches, and the section of
public using watches recognizes the trade name Rolex, for which it is a well-
known trademark. The same segment of people if finds artificial jewelleries
with the same trade name might assume the artificial jewellery to be from
plaintiff's business. For the same reasons, the court considering Rolex to be a
well-known trademark granted injunction against the acts of defendants.

"A trade mark which—

(a) is identical with or similar to an earlier trade mark; and

(b) is to be registered for goods or services which are not similar to those for
which the earlier trade mark is registered in the name of a different proprietor,
shall not be registered, if or to the extent, the earlier trade mark is a well-known
trade mark in India and the use of the later mark without due cause would take
unfair advantage of or be detrimental to the distinctive character or repute of
the earlier trade mark."

RIGHTS CONFERRED BY REGISTRATION

The trademark rights may be seen from the perspective of the personality of
the trade mark. It has been highlighted that simply through use as a mark on
goods or services which fulfill. The twin functions of showing origin and
distinguishing function in the course of trade or rendering of services. The mark
becomes a trademark.
Simultaneously, it starts enjoying trademark rights and the person who uses
the mark on goods or services becomes the proprietor of the trademark. The
other method to obtain trademark rights is by applying for registration. Before
its actual use on goods or services.

Section 28 of Trademark Act,1999 stated Rights conferred by registration

 (1) Subject to the other provisions of this Act, the registration of a trade mark
shall, if valid, give to the registered proprietor of the trade mark the exclusive
right to the use of the trade mark in relation to the goods or services in respect
of which the trade mark is registered and to obtain relief in respect of
infringement of the trade mark in the manner provided by this Act.

(2) The exclusive right to the use of a trade mark given under sub-section (1)
shall be subject to any conditions and limitations to which the registration is
subject.

(3) Where two or more persons are registered proprietors of trade marks,
which are identical with or nearly resemble each other, the exclusive right to the
use of any of those trade marks shall not (except so far as their respective rights
are subject to any conditions or limitations entered on the register) be deemed to
have been acquired by any one of those persons as against any other of those
persons merely by registration of the trade marks but each of those persons has
otherwise the same rights as against other persons (not being registered users
using by way of permitted use) as he would have if he were the sole registered
proprietor

Rights conferred by registration application

Certain rights vest by mere fact of applying for trademark registration.

(i) It serves as evidence of adoption and selection of trademark for stated goods
or services.

(ii)It enjoys priority against identical or similar marks pending registration for
same or similar goods or services. If similar mark is applied or used after the
date of application. This priority of six months is applicable in all members of
the Paris Convention and the WTO countries.
(iii) Preservation of filing date within six months of priority period in all
countries of the Paris Convention and WTO. Which means that by making an
application in one country

If the applicant chooses to make application in the other countries, other

applications will be deemed to have been filed on that earlier date.

Rights Conferred by Registration of Trade Mark

The trademark registration consults the following rights on the registered

proprietor:

1.It confers on the registered owner to the use of the trademark with total rights
in association to the goods or services of which trademark is registered.

2.If the trademark contains of various matters, an complete rights to the use of
the trade mark taken as a whole.

3. It entitles the registered proprietor to get relief in respect of infringement of

the trade mark provided by the 1999 act. When a similar mark is used on

(a) same goods or services,

(b) similar goods or services,

(c) dissimilar goods or services, provided the registered mark has reputation in
India.

4. The registration entitles the registered trademark to restrain others from

using any mark or packaging which would depict an association with the
registered mark or in any manner which would dilute the value or tarnish the
image of the trademark. This is a new right independent of similarity.
5. The trademark registration forbids every other person to use or to obtain
the registration of an identical.
6. After trademark registration for goods or services, there shall be no
registration for the same or confusingly similar trademark, not only for the same
goods or services.

7. After registration of the trade mark for goods or services and if the trademark
is found to be well known, there shall be no registration for the same or
confusingly similar trade mark to the well known mark.

Trademark Registration

8. Moreover, after registration of the trade mark for goods or services, there
shall be no registration for the same or confusingly similar trade mark to the
registered trade mark, if the mark sought to be registered would possibly be
restrained from use by courts in a passing off suit filed by an owner of trade
mark or if the use of the proposed mark would be injuncted in a copyright
matter in terms of section 11(3) of the Act.

9.Registered trade mark shall not be used by anyone else on business papers and
in advertising. The use in comparative advertising is subject to the condition
that it should not take undue advantage of the trademark. Such advertising
should not be contrary to honest practices in industrial or commercial matters.
The advertising should not be detrimental to the distinctive character or
reputation of the trademark.

Question 5(a)- Attempt the following.

(a) “The cluster-based approach is going to focus on those organic or herbal-
based or nutritional and wellness-related food items in which India has a great
strength.” Explain briefly the significance of this approach for goods with GI
Tag.

Answer 5(a) -Cluster are geographical concentration of competitive and

collaborating firm that tend to produce innovation and higher than average
wage. Cluster based economic development strategies are interventions design
to improve a cluster performance by addressing the common need of business
within the cluster. There are generally following type of cluster strategies:

• Defence cluster strategy- defence cluster strategy are design to fix the
defect of a region’s economic infrastructure that can affect the performance of a
group of existing firm.
• offensive cluster strategy- Offensive cluster strategy are design to
enhance competitiveness by delivering value added service to the firm in
cluster.
• Prospective cluster strategy- Prospective cluster strategy refers to a
‘cluster engineering’ are referred to convert important assets in region into
economic infrastructure into competitive business.
• Cluster based business recruitment strategies- Cluster based business
recruitment Strategies and marketing efforts aimed at recruiting specific Firm
particularly firms with competitiveness that could enhance the competitive
advantage of other business in cluster.

GI helps a community of producer to differentiate their product from

computing products in market and build Goodwill around there product. India
has had in its possession a considerable number of product that could qualify for
legal protection. But sometimes due to lack of infrastructure, investment,
industrial development and the regional goods which possesses the capacity to
take national and international market remain limited to that particular region.
In India almost all the region has something unique which can qualify for GI tag
. Cluster based approach will help in up liftmen of these regional products.

The cluster based approach will help in increasing the production of GI tag. It
will help in giving the GI tag good the National and international market by
increasing their quality, quantity and competitiveness. This approach will help
in fixing the defect of a region from which GI tag good belong and developed
infrastructure of the region which will affect the performance of GI tag good in
the market. This approach will help in adding value to GI tag good through
investment. It will help in development of regional economic from where the
good belong. It will help in recruiting specific firm particular with competencies
that could enhance the competitive advantage of other businesses in the cluster.

Question (b)- “The year 2020 is seeing a growing trend of an inclination

towards indigenous foods and locally grown produce. In keeping with this
trend, two of our Indian states' famous food items got their very own
Geographical Indication (GI) tags.” What are those famous food items that have
recently received the Geographical Indication (GI) tag and what are their health
benefits?
Answer 5(b)- Two foods of India have recently received the Geographical
Indication (GI) tag - the Manipuri black rice and the Kashmiri Saffron
• Manipuri Black Rice
The famous Black rice of Manipur is unique and offers multiple benefits. This
glutinous rice variety is called Chakhao Amubi. The Chakhao Amubi is one
type of sticky black rice that is indigenous to Manipur. ‘Chakho’ means
delicious while ‘Ambui’ means black. In Manipur, it is generally served in
special occasions and festive events. After cooking, the black hue turns purple
and it has a slightly nutty flavour. It is used to make porridge, kheer, Chinese
black cake and many other dishes. It is deemed that cultivation of black rice
started when the earliest settlers of Manipur came to the place. In hills of
Manipur, the grain is harvested in organic methods. No pesticide and chemical
fertilizer is used. These black rice need to be soaked for a few hours or
overnight for cooking.
Health benefits of Manipuri Rice are:
1. It has high antioxidant quotient. Antioxidants boost immunity levels and
help your body stave off various ailments and infections better. The antioxidants
also help discard toxins from body.
2. The Anthocyanins is said to be helpful for reducing heart attack
prospects. It reportedly plays a role in preventing plaque buildup in artery walls.
They are also helpful in lowering cholesterol levels in body.
3. Studies have revealed eating black rice can also help keep some dreaded
ailments at bay. It may prevent onset of Alzheimer’s disease. Though solid
scientific evidence does not exist, a lot of users of black rice say its
consumption helps prevent and cure certain types of cancer.
4. It is the only rice to contain the antioxidant known as anthocyanins,
which is found in dark-hued fruits and vegetables like blueberries, blackberries,
dark grapes, dark cherries, purple brinjals, purple cabbage and purple corn
amongst others. Nutritionist Dhvani Shah says, "Black rice contains high
amounts of antioxidants, dietary fibre, minerals and other anti-inflammatory
nutrients. It is the richest source of the antioxidant, anthocyanin, which is
known to be cancer fighting, beneficial for heart health and imflammatory
conditions.
5. As compared to other varieties of rice, the glycemic index of black rice is
42, which is a very good score for weight watchers and diabetics.
• kashmiri Saffron
Saffron is the most expensive spice in the world .The reason for its hefty price is
its labour-intensive harvesting method, making the production costly.
Saffron is harvested by hand from the Crocus sativus flower, commonly known
as the “saffron crocus.” The term “saffron” applies to the flower's thread-like
structures, or stigma.

Health benefits of kashmiri saffron.

1. A Powerful Antioxidant
Saffron contains an impressive variety of plant compounds that act as
antioxidants molecules that protect y cells against free radicals and oxidative
stress.
Notable saffron antioxidants include crocin, crocetin, safranal, and kaempferol .
Crocin and crocetin are carotenoid pigments and responsible for saffron’s red
color. Both compounds may have antidepressant properties, protect brain cells
against progressive damage, improve inflammation, reduce appetite, and aid
weight loss .
Safranal gives saffron its distinct taste and aroma. Research shows that it may
help improve mood, memory, and learning ability, as well as protects brain
cells against oxidative stress .
Lastly, kaempferol is found in saffron flower petals. This compound has been
linked to health benefits, such as reduced inflammation, anticancer properties,
and antidepressant activity
2. Improve Mood and Treat Depressive Symptoms
Saffron is nicknamed the “sunshine spice.” That’s not just due to its distinct
color, but also because it may help brighten mood. Saffron supplements were
significantly more effective than placebos at treating symptoms of mild-to-
moderate depression. Studies found that taking 30 mg of saffron daily was just
as effective as Fluoxetine, Imipramine, and Citalopram — conventional
treatments for depression.
3. Have Cancer-Fighting Properties
Saffron is high in antioxidants, which help neutralize harmful free radicals. Free
radical damage has been linked to chronic diseases, such as cancer .
In test-tube studies, saffron and its compounds have been shown to selectively
kill colon cancer cells or suppress their growth, while leaving normal cells
unharmed.
4. Reduce PMS Symptoms
Premenstrual syndrome (PMS) is a term that describes physical, emotional, and
psychological symptoms occurring before the start of a menstrual period.
Studies show that saffron may help treat PMS symptoms.
In women 20–45 years of age, taking 30 mg of saffron daily was more effective
than a placebo at treating PMS symptoms, such as irritability, headaches,
cravings, and pain .
Another study found that simply smelling saffron for 20 minutes helped reduce
PMS symptoms like anxiety and lowered levels of the stress hormone cortisol.
5. Act as an Aphrodisiac
Aphrodisiacs are foods or supplements that help boost libido.
Studies have shown that saffron may have aphrodisiac properties — especially
in people taking antidepressants.
For instance, taking 30 mg of saffron daily over four weeks significantly
improved erectile function over a placebo in men with antidepressant-related
erectile dysfunction .
6. Reduce Appetite and Aid Weight Loss
Snacking is a common habit that may put at risk of gaining unwanted weight.
According to research, saffron may help prevent snacking by curbing appetite.
7.May reduce heart disease risk factors: Animal and test-tube studies indicate
that saffron’s antioxidant properties may lower blood cholesterol and prevent
blood vessels and arteries from clogging .
8.May lower blood sugar levels: Saffron may lower blood sugar levels and raise
insulin sensitivity — as seen in test-tube studies and mice with diabetes .
9.May improve eyesight in adults with age-related macular degeneration
(AMD): Saffron appears to improve eyesight in adults with AMD and protect
against free radical damage, which is linked to AMD.
10.May improve memory in adults with Alzheimer’s disease: Saffron’s
antioxidant properties may improve cognition in adults with Alzheimer's
disease.