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A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.
The term of every patent granted is 20 years from the date of filing of application. However, for application filed under national phase under Patent Cooperation Treaty (PCT), the term of patent will be 20 years from the international filing date accorded under PCT.
The patent system in India is governed by the Patents Act, 1970 (No.39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent Rules are regularly amended in consonance with the changing environment, most recent being in 2019.
No. Patent protection is a territorial right and therefore it is effective only within the territory of India. There is no concept of global patent.
An invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non-patentable under sections 3 and 4 of the Act.
An invention is patentable subject matter if it meets the following criteria –
An application for a patent can be filed at the earliest possible date and should not be delayed. An application filed with provisional specification, disclosing the essence of the nature of the invention helps to register the priority of the invention. Delay in filing an application may entail some risks such as (i) some other inventor might file a patent application on the said invention and (ii) there may be either an inadvertent publication of the invention by the inventor himself/herself or by others independently of him/her.
Generally, an invention which has been either published or publicly displayed cannot be patented as such publication or public display leads to lack of novelty. However, under certain circumstances, the Patents Act provides a grace period of 12 months for filing of patent application from the date of its publication in a journal or its public display in an exhibition organised by the Government or disclosure before any learned society or published by applicant. The detailed conditions are provided under Chapter VI of the Act (Section 29-34).
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.
The legal requirements to register a trademark under the Act are:
The selected mark should be capable of being represented graphically (that is in the 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.
If it is a word it should be easy to speak, spell and remember. The best trademarks are invented words or coined words or unique geometrical designs. Please avoid selection of a geographical name, common personal name or surname. No one can have monopoly right on it. Avoid adopting laudatory word or words that describe the quality of goods (such as best, perfect, super etc.) It is advisable to conduct a market survey to ascertain if same/similar mark is used in market.
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 application should be in English or Hindi. It should be filed at the appropriate office.
TM at upper right corner of any brand indicates that the brand is unregistered but this mark is used for promote goods.
® is used to represent a registered trademark/ servicemark that provides the applicant complete ownership and legal rights over the trademark/ servicemark.
No, registration of a Trademark is not mandatory in India but it is always advisable to do so for protection of your mark and business as well.
Yes, foreign proprietors can make an application for registration of their trademark in India.
Yes, Indian proprietors can also make an application for registration of their trademark. If the proprietors want to grow their brand abroad as well, it is a good practice to secure the brand name by trademark protection in their country of interest.
A Design refers to the features of shape, configuration,pattern, ornamentation or composition of lines or colours applied to any article, whether in two or three dimensional (or both) forms. This may be applied by any industrial process or means (manual, mechanical or chemical) separately or by a combined process, which in the finished article appeals to and judged solely by the eye. Design does not include any mode or principle of construction or anything which is a mere mechanical device. It also does not include any trade mark or any artistic work.
The registration of a design confers upon the registered proprietor the exclusive right to apply adesign to the article in the class in which the designhas been registered.
A registered proprietor of the design is entitled forprotection of his intellectual property. He can take step against infringement, if his right is infringed by any person. He can license or sell his design as legal property for a consideration or royalty. Registration initially confers this right for ten years from the date of registration. It is renewable for a further period of five years. If the fee for extension is not paid for the further period of registration within the period of initial registration, this right will cease. There is provision for the restoration of a lapsed design if the application for restoration is filed within one year from the date of cessation in the prescribed manner.
A design must:
Any person or the legal representative or the assignee can apply separately or jointly for the registration of a design.
The term "person" includes firm, partnership, small entity and a body corporate. An application may also be filed through an agent in which case a power of attorney is required to be filed.
Any person who has applied for protection for any design in the convention countries or group of intergovernmental organizations, or his legal representative or assignee, either alone or jointly with any other person, is entitled to claim registration ofthe said design citing a priority date in India. This date is the date of filing of the application in any of the countries mentioned above. However, the application should be made in India within six months from the date of the earliest application for registration in those countries.
The time period for removal of objection, pursuant to examination report, is six months from the date of application which may be extended up to further three months on a request made with the prescribed fee before expiry of the stipulated period of six months. An application which owing to any neglect or default of the applicant has not been completed within stipulated time shall be deemed to be abandoned.
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