MORTGAGE
A Mortgage represents a loan or lien on a property/house that has to be paid over a specified period of time.
A Mortgage is defined in Section 58 of the Transfer of Property Act as the transfer of an interest in specific immovable property for the purpose of securing payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of any contract or engagement which may give rise to a pecuniary liability.
The transferor in case of the mortgage is called the Mortgagor, and the transferee as the mortgagee, the principal money and interest o which payment is secured for the time being are called the Mortgage Money, and the instrument of transfer, a Mortgage Deed.
Any person, company, association or body of individuals not otherwise disqualified can be the Mortgage.
Provisions of Mortgage in India
• In the case of a company or association, such a mortgage must be authorized by the Memorandum and approved by the Resolution of the Board of Directors or the governing body as the case may be.
• Under the Indian Contract Act a minor or a lunatic cannot create any mortgage in respect of their properties. A mortgage by a lunatic is void under Section 11 read with Section 12 of the Indian Contract Act.
• A partner has no implied authority to mortgage any immovable property belonging to a form (Section 19(2)(g) of the Indian Partnership Act)
• Under the Code of Civil Procedure, a person whose property I being managed by the collector cannot create nor submit his property to any mortgage.
• A Karta of a Mitakshara joint family cannot create a mortgage except for legal necessities and for the benefit of the estate. An executor in the absence of ant restriction can mortgage any property belonging to the estate of the deceased for the purpose of administration.
• A trustee cannot be the mortgagee of a trust property. A guardian of a minor is in the same position as the trustee.
Mortgage how effected?
Section 59 of the Transfer of Property Act lays down that hen the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage but deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage can be effected either by a registered instrument signed and attested as aforesaid, or by the delivery of the property.
LOAN
A Loan is an arrangement in which the lender gives money or property to a borrower and the borrower agrees o return the property or repay the money. It is done usually along with interest, at some future points of time.
Usually there is a predefined time for the repayment of loan, and generally the lender has to bear the risk that the borrower may not repay the loan, even though modern capital markets have developed many ways of managing this risk.
The most common type of loan is the bank loan, which exists to lend money; it is for this reason that the banks offer a wide variety of ways to fund a business growth.
Types of Business Loans in India
• Line- of- credit loans. The most useful type of loan for a small business is the line-of-credit loans. This is a short term loan that extends the cash available in our business checking account to the upper limit of the loan contract. Line-of-credit loans are intended for purchases of inventory and payment of operating costs for working capital and business cycle needs. They are not intended for purchases of equipment or real estate.
• Secured and Unsecured loans. Loans can be secured or unsecured. A secured loan is the loan with collateral. That is, if a borrower pledges a property or other assets to the creditor and states that the creditor may take ownership if the borrower defaults on a loan and sell it to recover the loan amount. In most cases, lenders charged a lower interest rate on a secured loan than on an unsecured loan of comparable size. Most important example of secured loan is Mortgage.
Unsecured loans are the loans which are not attached to any collateral. They are unsecured loans because the banks have nothing to do if the borrower defaults to repay the loan amount.
• Term loan. Tern Loan can be defined as the loan from a bank for a specific amount that has a specified repayment schedule and floating interest rates. The term loans almost always mature between one to ten years. Term Loan is secured by a collateral security. Term Loan facilitates the borrower to raise a stipulated amount one time and plan the business expenditure or investment or purchases on his or her own.
This is the official blog for Biswajit Sarkar, Advocates - IP Attorneys . We are a leading IP law firm in India, now growing as a full fledged law firm . The firm exclusively deals with Patents, Trade Marks, Designs, Copyrights and allied matters. The extensive legal practice of the firm encompasses International Trade related matters, corporate matters, foreign collaboration, and joint ventures. For more details, please visit our website www.biswajitsarkar.com .
Wednesday, February 1, 2012
Proceedings before the Company Law Board
The Company Law Board is an independent quasi-judicial body in India which has powers to overlook the behavior of companies within the Company Law. It was constituted in its present form on May 31, 1991, under Section 10E of the Companies Act, 1956 replacing the erstwhile Company Law Board which was primarily as a delegate of the Central government since 1.2.1964. The Company Law Board has framed Company Law Board Regulations 1991 wherein all the procedure for filing the applications/petitions before the Company Law Board has been prescribed. The Central Government has also prescribed the fees for making applications/petitions before the Company Law Board under the Company Law Board (Fees on applications and Petitions) Rules,1991.
There was a specific objective behind section 397/398 of the Companies Act, 1956 and a great responsibility is cast upon the Company Law Board to protect the interests of the minority shareholders, to put an end to the matters complained of and to regulate the affairs of the Company. The absence of an effective remedy to address the serious grievances of the shareholders in the Company will directly impact the growth of corporate world. To the extent possible, differences between the shareholding groups in any Company is to be addressed and every effort is to be taken to ensure that the Company functions smoothly rather resorting to winding-up. The same is the object behind constitution of BIFR and section 391 to 394 of Companies Act, 1956. It is more important to protect the interests of the shareholders in a Company and it is very important to deal with the issues of oppression and mis-management. A proceeding under section 397/398 of the Companies Act, 1956 is really complicated and as usual there exist difficulties when it comes to execution of an order.
The important aspect of a proceeding before the Company Law Board is about the procedure and the applicability of the provisions of Civil Procedure Code. The intention behind constitution of Special Tribunals is to simplify the procedure and to avoid the enormous delay in Courts due to strict applications of provisions of Civil Procedure Code. Despite all this, technicalities were pleaded in a proceeding under Section 397/398 of the Companies Act, 1956 very often.
There was a specific objective behind section 397/398 of the Companies Act, 1956 and a great responsibility is cast upon the Company Law Board to protect the interests of the minority shareholders, to put an end to the matters complained of and to regulate the affairs of the Company. The absence of an effective remedy to address the serious grievances of the shareholders in the Company will directly impact the growth of corporate world. To the extent possible, differences between the shareholding groups in any Company is to be addressed and every effort is to be taken to ensure that the Company functions smoothly rather resorting to winding-up. The same is the object behind constitution of BIFR and section 391 to 394 of Companies Act, 1956. It is more important to protect the interests of the shareholders in a Company and it is very important to deal with the issues of oppression and mis-management. A proceeding under section 397/398 of the Companies Act, 1956 is really complicated and as usual there exist difficulties when it comes to execution of an order.
The important aspect of a proceeding before the Company Law Board is about the procedure and the applicability of the provisions of Civil Procedure Code. The intention behind constitution of Special Tribunals is to simplify the procedure and to avoid the enormous delay in Courts due to strict applications of provisions of Civil Procedure Code. Despite all this, technicalities were pleaded in a proceeding under Section 397/398 of the Companies Act, 1956 very often.
Income Tax Update
Income Tax
Income tax is the tax payable, at the rate enacted by the Union Budget (Finance Act) for every assessment year, on the total income earned in the previous year by every individual. The government of India imposes Income Tax on every taxable income of individual. The Levy of tax is different on each of the person. The Levy is governed by the Indian Income Tax Act, 1961, which came into force on 1st day of April, 1962. The Act has been recently amended by the Finance Act of 2011.
The Indian Income Tax department is governed by the Central Board of Direct Tax and is part of the Department of Revenue under the Ministry of Finance, Government of India. The chargeability of Income Tax is based on the nature of income, i.e., whether it is Revenue or Capital.
The recent rates of Income Tax with effect from 1st April, 2011, are:
Income Tax Rates/Slab Rates (%)
For Men
· Up to 1,80,000 = Nil
· 1,80,001 – 5,00,000 = 10%
· 5,00,000 – 8,00,000 = 20%
· 8,00,000 upwards = 30%
For Women
· Up to 1, 90,000 = 0%
· 1,90,001 - 5,00000 = 10%
· 5,00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
For Senior Citizen (for resident individual of 60 years or above)
· Up to 2, 50,000 = 0%
· 2, 50,001 - 5,00,000 = 10%
· 5, 00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
For Very Senior Citizen of 80 years or above
· Up to 5, 00,000 = 0%
· 5,00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
Educational cess is applicable @ 3% on income tax. No Surcharge will be levied.
Income Tax (Corporate)
The Corporate Tax Rate in India entirely depends on the origin of the company. Indian Companies are taxable in India on their worldwide income. The slab for the corporate income tax is different from the general Income Tax slabs. There are special rates prescribed for corporate, firms, cooperatives and local authorities. Features of Corporate Income Tax are:
· Income is taxed at a flat rate of 30% for Indian Companies.
· A surcharge of 7.5% of the Income Tax is levied, if the taxable income exceeds Rs. 1 million.
· Foreign companies pay 40%
· An educational cess of 3% (on both the tax and the surcharge) is payable, yielding effective tax rates of 32.5% for domestic companies and 41.2% for foreign companies.
· All companies incorporated in India are deemed as domestic Indian Companies for tax purposes, even if owned by foreign companies.
· Electronic filing of Income Tax Returns is a legal obligation of every company whose total Income Tax for the previous year has exceeded the maximum amount that is not chargeable for Income Tax under the provisions of the Income Tax Act, 1961.
Income Tax (Individual)
In India, Individual Income Tax is a progressive tax. It is important for every income individual to pay tax on time. For resident individual, Income Tax rate is levied by the Indian Government on the taxable income which may be lower than total income depending on Deduction/Exemptions. The slab for tax payment is different for women, senior citizen, and very senior citizen which has been recently included in the category and is also different as per individual income level. The slab for individuals has been mentioned above.
The Individual Income tax is divided into 5 heads:
· Income from salary: All income received as salary under Employer/Employee relationship is taxed under this head. Income from salary is the least from all deductions.
· Income from House property: Income from House property is computed by taking into account Annual value of the property.
· Income from Business or Profession
· Income from capital gain: Transfer of capital assets results in capital gain.
· Income from other heads.
For Personal Income Tax, surcharge has been abolished in the financial year of 2009-10.
With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of Income Tax. The education cess is mainly applicable on excise duty and service tax.
Income tax is the tax payable, at the rate enacted by the Union Budget (Finance Act) for every assessment year, on the total income earned in the previous year by every individual. The government of India imposes Income Tax on every taxable income of individual. The Levy of tax is different on each of the person. The Levy is governed by the Indian Income Tax Act, 1961, which came into force on 1st day of April, 1962. The Act has been recently amended by the Finance Act of 2011.
The Indian Income Tax department is governed by the Central Board of Direct Tax and is part of the Department of Revenue under the Ministry of Finance, Government of India. The chargeability of Income Tax is based on the nature of income, i.e., whether it is Revenue or Capital.
The recent rates of Income Tax with effect from 1st April, 2011, are:
Income Tax Rates/Slab Rates (%)
For Men
· Up to 1,80,000 = Nil
· 1,80,001 – 5,00,000 = 10%
· 5,00,000 – 8,00,000 = 20%
· 8,00,000 upwards = 30%
For Women
· Up to 1, 90,000 = 0%
· 1,90,001 - 5,00000 = 10%
· 5,00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
For Senior Citizen (for resident individual of 60 years or above)
· Up to 2, 50,000 = 0%
· 2, 50,001 - 5,00,000 = 10%
· 5, 00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
For Very Senior Citizen of 80 years or above
· Up to 5, 00,000 = 0%
· 5,00,001 - 8,00,000 = 20%
· Above 8,00,000 = 30%
Educational cess is applicable @ 3% on income tax. No Surcharge will be levied.
Income Tax (Corporate)
The Corporate Tax Rate in India entirely depends on the origin of the company. Indian Companies are taxable in India on their worldwide income. The slab for the corporate income tax is different from the general Income Tax slabs. There are special rates prescribed for corporate, firms, cooperatives and local authorities. Features of Corporate Income Tax are:
· Income is taxed at a flat rate of 30% for Indian Companies.
· A surcharge of 7.5% of the Income Tax is levied, if the taxable income exceeds Rs. 1 million.
· Foreign companies pay 40%
· An educational cess of 3% (on both the tax and the surcharge) is payable, yielding effective tax rates of 32.5% for domestic companies and 41.2% for foreign companies.
· All companies incorporated in India are deemed as domestic Indian Companies for tax purposes, even if owned by foreign companies.
· Electronic filing of Income Tax Returns is a legal obligation of every company whose total Income Tax for the previous year has exceeded the maximum amount that is not chargeable for Income Tax under the provisions of the Income Tax Act, 1961.
Income Tax (Individual)
In India, Individual Income Tax is a progressive tax. It is important for every income individual to pay tax on time. For resident individual, Income Tax rate is levied by the Indian Government on the taxable income which may be lower than total income depending on Deduction/Exemptions. The slab for tax payment is different for women, senior citizen, and very senior citizen which has been recently included in the category and is also different as per individual income level. The slab for individuals has been mentioned above.
The Individual Income tax is divided into 5 heads:
· Income from salary: All income received as salary under Employer/Employee relationship is taxed under this head. Income from salary is the least from all deductions.
· Income from House property: Income from House property is computed by taking into account Annual value of the property.
· Income from Business or Profession
· Income from capital gain: Transfer of capital assets results in capital gain.
· Income from other heads.
For Personal Income Tax, surcharge has been abolished in the financial year of 2009-10.
With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of Income Tax. The education cess is mainly applicable on excise duty and service tax.
Sunday, November 13, 2011
Trademark Attorney
A Trade mark is a visual symbol in the form of a word, device, name, ticket etc. applied to articles of commerce to indicate the trade source of the goods or service to the purchasing public. In order to obtain registration of a trade mark the services of a trade mark attorney may be enlisted.
Before selecting a trade mark it is always advisable to consuIt a Trade mark attorney and to conduct a trade mark search. A skilled trade mark attorney would be able to identify similar trademarks and accurately advise clients as to the possibility of registration of the trade mark.
After selecting the trade mark, a trade mark application is to be prepared in the prescribed form, along with the prescribed fees and filed at the Trade Marks Registry.
The Trade Mark application is then examined by the Trade Marks Registry and objections, if any, are stated in an examination report issued by the Registry. A Trade Mark Attorney is well equipped to prepare suitable replies and Affidavits in order to meet the objections raised by the examiner.
Where there are no objections or if the Trade Mark Registry is satisfied that the objections have been duly met the trade mark is advertised in the Trade Mark Journal and any aggrieved third parties may oppose the registration of the pending trade marks.
Thereafter, if there is no opposition or the opposition is dismissed the trade mark application proceeds towards registration. A registered trademark is protected for a period of 10 years and must be renewed every 10 years thereafter.
Before selecting a trade mark it is always advisable to consuIt a Trade mark attorney and to conduct a trade mark search. A skilled trade mark attorney would be able to identify similar trademarks and accurately advise clients as to the possibility of registration of the trade mark.
After selecting the trade mark, a trade mark application is to be prepared in the prescribed form, along with the prescribed fees and filed at the Trade Marks Registry.
The Trade Mark application is then examined by the Trade Marks Registry and objections, if any, are stated in an examination report issued by the Registry. A Trade Mark Attorney is well equipped to prepare suitable replies and Affidavits in order to meet the objections raised by the examiner.
Where there are no objections or if the Trade Mark Registry is satisfied that the objections have been duly met the trade mark is advertised in the Trade Mark Journal and any aggrieved third parties may oppose the registration of the pending trade marks.
Thereafter, if there is no opposition or the opposition is dismissed the trade mark application proceeds towards registration. A registered trademark is protected for a period of 10 years and must be renewed every 10 years thereafter.
Monday, September 26, 2011
Trademark Protection : Trademark Attorney India
Case references:
In the famous case of William Grant & Sons Ltd. v. McDowell & Co. Ltd., an action was filed by Grant, restraining McDowell from copying the trade dress of GLENFIDDICH Scotch whisky. Since 1946,various types of whiskies had been exported to India by Grant and since 1978, GLENFIDDICH Single Malt Whisky has been exported to India, . The GLENFIDDICH Single Malt Whisky has got very distinctive features of its own. It was sold in a green bottle and black cylindrical cartons, with a label of distinctive trade dress and unique features. The ‘stag device’ which Grant argued, had become exclusively associated with them together with the ‘thistle device’ which indicated the Scottish origin of the product .McDowell was accused by Grant for infringing their trademark pertaining to GLENFIDDICH whiskey, for having the similar trade dress, that is, the green bottle, black cylindrical carton and the stag and thistles devices. Based on this, on 27th May, 1994, the Delhi HC passed an order of injunction, restraining McDowell from dealing with alcoholic beverages marked McDowell’ single Malt Whiskey and was also refrained from using similar packaging which was the imitation of the plaintiff’s GLENFIDDICH label . The judge held that as GLENFIDDICH whisky had a reputation in India, so Grant was entitled to protect it and if such imitation is made then it would destroy the exclusive right of ownership of such trademark. The judge also made it a point that McDowell was fully aware of the reputation of Grant's product, and as such, it deliberately copied the trademark and it was not accidental at all and the balance of convenience was in favour of Grant, who genuinely worked hard to invent such unique trademark for the business.
In another case, Amul Dairy won a case of infringement in Gujarat HC. In a significant judgment, the Gujarat High Court expounded that a registered trademark user always has the right to restrict and refrain others using their trademark for different class or goods. The case was between the Kaira District Co-operative Milk Producers' Union popularly Amul Dairy and the Gujarat Co-operative Milk Marketing Federation (GCMMF) and two local shop owners, Amul Chasmaghar and Amul Cut Piece Stores, where they filed a case for infringement of their trademark in the district court. While Kaira Union owns brand Amul, GCMMF manages the brand. The district court passed an order suggesting that it was a case of infringement and also restrained the two local shop owners from using the Amul trademark further in course of their business. The decision of the district court was challenged by Amul Chasmaghar in the HC, but Justice D. N Patel upheld the ruling of the district Court.
In another scenario, where the Trademark has not been registered, relief can be served in the form of ‘Passing Off’. Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill. The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the claimant, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.
The requisites for a Passing Off or the Classical Trinity as restated by the House of Lords in the case of RECKITT & COLMAN LTD V BORDEN INC. :
• Goodwill owned by the trader
• Misrepresentation
• Damage to goodwill
Under the case of ErvenWarnink B.V. v. J. Townend& Sons (Hull) Ltd., [1979] AC 731, [1980] R.P.C. 31, Warnink was one of the primary market producers of a Dutch liqueur made from a blend of hen egg yolks, aromatic spirits, sugar, and brandy, which it sold under the name "Advocaat". Townend produced a similar alcoholic drink but using egg and Cyprus wine which it sold as "Keeling's Old English Advocaat". The Court’s ruling was that Townend was passing off their goods as those of Warnink. In this respect when passing off was being applied, the Court developed the scenario of what is known as the "extended" tort of passing off. To be under such situation, it’s necessary that the goodwill is being injured by a misrepresentation. The expression of ‘ extended Passing Off’ was coined by Lord Diplock , where he expounded the essential requirements to claim such ‘extended Passing Off’ as a misrepresentation made by a trader in the course of trade to prospective customers of his or ultimate consumers of goods and services supplied by him, which is calculated to injure the business or goodwill of another trader, and which causes actual damage to the business or goodwill of the trader bringing the action.
In another case Honda Motors Co. Ltd. v. Mr.Charanjit Singh and Ors[5] India Ltd. Plaintiff, established that his business or goods has acquired the reputation and his defendant Company was using the trade name HONDA for ‘Pressure Cookers’ which they were manufacturing in India and even when their application for registration of this trademark had been rejected by the registrar, they continued using it and again applied for registration and hence plaintiff has brought this plaint. Plaintiff on the other hand is a well-known company having presence all over the world in the field of Motor Cars, Motorcycles, Generators and other electronic appliances. They are doing business in India in association with the SiddharthShriram Group with the name Honda Siel Cars. This trade name has become distinctive of his goods and the purchasing public at large associates the plaintiff's name with them. The use of trademark HONDA by respondents created deception or confusion in the minds of the public at large and such confusion caused damage or injury to the business, reputation, goodwill and fair name of the plaintiff. Hence court restricted the defendants from using the trademark HONDA in respect of pressure cookers or any goods or any other trade mark/marks, which are identical with and deceptively similar to the trade mark HONDA of the plaintiff and to do anything which amounts to passing off to the goods of the plaintiff.
Trade-related aspects of Intellectual Property Rights:
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date.
TRIPS contains requirements that nations' laws must meet for copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specify the enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Section 2, Article 15 of the TRIPS Agreement gives the overview on what are the types of Trademark and how it can be registered under this international Agreement. The definition is quite simple. The agreement states that, ‘Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible’.
Whereas, Article 16 of the Agreement sketches out the rights of the registered trademark owner, where he enjoys the exclusive right of ownership of the trademark registered and any violation of the trademark by infringement of its right, gives the registered user to proceed for legal remedies.
In the famous case of William Grant & Sons Ltd. v. McDowell & Co. Ltd., an action was filed by Grant, restraining McDowell from copying the trade dress of GLENFIDDICH Scotch whisky. Since 1946,various types of whiskies had been exported to India by Grant and since 1978, GLENFIDDICH Single Malt Whisky has been exported to India, . The GLENFIDDICH Single Malt Whisky has got very distinctive features of its own. It was sold in a green bottle and black cylindrical cartons, with a label of distinctive trade dress and unique features. The ‘stag device’ which Grant argued, had become exclusively associated with them together with the ‘thistle device’ which indicated the Scottish origin of the product .McDowell was accused by Grant for infringing their trademark pertaining to GLENFIDDICH whiskey, for having the similar trade dress, that is, the green bottle, black cylindrical carton and the stag and thistles devices. Based on this, on 27th May, 1994, the Delhi HC passed an order of injunction, restraining McDowell from dealing with alcoholic beverages marked McDowell’ single Malt Whiskey and was also refrained from using similar packaging which was the imitation of the plaintiff’s GLENFIDDICH label . The judge held that as GLENFIDDICH whisky had a reputation in India, so Grant was entitled to protect it and if such imitation is made then it would destroy the exclusive right of ownership of such trademark. The judge also made it a point that McDowell was fully aware of the reputation of Grant's product, and as such, it deliberately copied the trademark and it was not accidental at all and the balance of convenience was in favour of Grant, who genuinely worked hard to invent such unique trademark for the business.
In another case, Amul Dairy won a case of infringement in Gujarat HC. In a significant judgment, the Gujarat High Court expounded that a registered trademark user always has the right to restrict and refrain others using their trademark for different class or goods. The case was between the Kaira District Co-operative Milk Producers' Union popularly Amul Dairy and the Gujarat Co-operative Milk Marketing Federation (GCMMF) and two local shop owners, Amul Chasmaghar and Amul Cut Piece Stores, where they filed a case for infringement of their trademark in the district court. While Kaira Union owns brand Amul, GCMMF manages the brand. The district court passed an order suggesting that it was a case of infringement and also restrained the two local shop owners from using the Amul trademark further in course of their business. The decision of the district court was challenged by Amul Chasmaghar in the HC, but Justice D. N Patel upheld the ruling of the district Court.
In another scenario, where the Trademark has not been registered, relief can be served in the form of ‘Passing Off’. Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill. The law of passing off prevents one person from misrepresenting his or her goods or services as being the goods and services of the claimant, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.
The requisites for a Passing Off or the Classical Trinity as restated by the House of Lords in the case of RECKITT & COLMAN LTD V BORDEN INC. :
• Goodwill owned by the trader
• Misrepresentation
• Damage to goodwill
Under the case of ErvenWarnink B.V. v. J. Townend& Sons (Hull) Ltd., [1979] AC 731, [1980] R.P.C. 31, Warnink was one of the primary market producers of a Dutch liqueur made from a blend of hen egg yolks, aromatic spirits, sugar, and brandy, which it sold under the name "Advocaat". Townend produced a similar alcoholic drink but using egg and Cyprus wine which it sold as "Keeling's Old English Advocaat". The Court’s ruling was that Townend was passing off their goods as those of Warnink. In this respect when passing off was being applied, the Court developed the scenario of what is known as the "extended" tort of passing off. To be under such situation, it’s necessary that the goodwill is being injured by a misrepresentation. The expression of ‘ extended Passing Off’ was coined by Lord Diplock , where he expounded the essential requirements to claim such ‘extended Passing Off’ as a misrepresentation made by a trader in the course of trade to prospective customers of his or ultimate consumers of goods and services supplied by him, which is calculated to injure the business or goodwill of another trader, and which causes actual damage to the business or goodwill of the trader bringing the action.
In another case Honda Motors Co. Ltd. v. Mr.Charanjit Singh and Ors[5] India Ltd. Plaintiff, established that his business or goods has acquired the reputation and his defendant Company was using the trade name HONDA for ‘Pressure Cookers’ which they were manufacturing in India and even when their application for registration of this trademark had been rejected by the registrar, they continued using it and again applied for registration and hence plaintiff has brought this plaint. Plaintiff on the other hand is a well-known company having presence all over the world in the field of Motor Cars, Motorcycles, Generators and other electronic appliances. They are doing business in India in association with the SiddharthShriram Group with the name Honda Siel Cars. This trade name has become distinctive of his goods and the purchasing public at large associates the plaintiff's name with them. The use of trademark HONDA by respondents created deception or confusion in the minds of the public at large and such confusion caused damage or injury to the business, reputation, goodwill and fair name of the plaintiff. Hence court restricted the defendants from using the trademark HONDA in respect of pressure cookers or any goods or any other trade mark/marks, which are identical with and deceptively similar to the trade mark HONDA of the plaintiff and to do anything which amounts to passing off to the goods of the plaintiff.
Trade-related aspects of Intellectual Property Rights:
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date.
TRIPS contains requirements that nations' laws must meet for copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specify the enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Section 2, Article 15 of the TRIPS Agreement gives the overview on what are the types of Trademark and how it can be registered under this international Agreement. The definition is quite simple. The agreement states that, ‘Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible’.
Whereas, Article 16 of the Agreement sketches out the rights of the registered trademark owner, where he enjoys the exclusive right of ownership of the trademark registered and any violation of the trademark by infringement of its right, gives the registered user to proceed for legal remedies.
Friday, September 16, 2011
Types of Intellectual Property
Patents
A patent is a monopoly right granted to an inventor by the Government for a limited period of time in consideration of disclosure of the invention. Not all inventions are patentable. The invention must be novel and not obvious and should qualify for industrial application. The invention must consist of an inventive step and should not be a mere rearrangement of known devices functioning independently of each other.
Before applying for a patent it is advisable to determine whether the invention is patentable. In case it is found that the invention is patentable, then a worldwide search should be conducted in order to determine whether there are any identical patents on record.
If the search is positive, then an application in the prescribed form with the prescribed fee is to be submitted at the Patent Office. The application should be accompanied by a specification. Subsequently, the application is examined and objections are raised. A suitable reply is also required to be filed. Thereafter the invention is advertised and any third party who is aggrieved may initiate opposition proceedings. Finally, if all the issues are settled letters patent is issued.
Trade Mark
A trade mark is a visual symbol applied to articles of commerce in order to indicate to the purchasing public and to the trade at large that the goods or services originate from a particular business source. It is advisable to conduct a trade mark search before making an application for registration of the trade mark.
If the search reveals no identical or similar trademarks, then an application in the prescribed form with the prescribed fee should be submitted at the trade mark office. The application is then examined and an appropriate reply is to be filed to meet the objections if any.
The mark is then advertised and oppositions may be initiated by third parties.
Finally, if there is no opposition the application proceeds towards trade mark registration. In case the opposition is decided in favour of the applicant, then the application proceeds toward registration as well.
Designs
Design registration protects the visual aspect or design of articles that are not merely utilitarian or functional. A search is advisable before a design application is made to the Patent Office. The application should be submitted in the prescribed form along with four sets of representations containing different views of the design. The Designs Office initially provides a filing number and date. Thereafter the Designs Office duly examines the application and communicates to the applicant any hindrances for registration of the design.
After the objections are met by the applicant, the Designs Office grants registration to the applicant.
The term of a design is 10 years and is renewable for a further period of five years.
Copyright
Copyright is an exclusive right granted for a fixed period of time. Copyright subsists in literary works, dramatic works, musical works and cinematograph films. In order to register a copyright an application is required to be made in the requisite form, including a Statement of Particulars and a Statement of Further Particulars along with the prescribed fees. The application must be accompanied by three copies of the published work and submitted to the Copyright Office. In case the work is unpublished a copy of the manuscript should accompany the application.
Geographical Indications
Geographical indications refer to the indications used on products to indicate that the product is of a specific quality that originates from a particular territory. Geographical indications indicate the qualities attached to the product due to the reputation of the place of origin of the product. Examples of Geographical Indications are Tirupati Laddoo,, Kolhapuri Chappals etc.
Summary:
In the modern business scenario the importance of Intellectual property has grown rapidly. Intellectual Property is in the form of intangible property. Such properties are created by the human mind. The notable types of Intellectual Properties are Patents, Trade Marks, Copyright, Design and Geographical Indications
Author is a practicing lawyer in India, specializing in Intellectual Property Laws, He is currently working in Biswajit Sarkar (www.biswajitsarkar.in ) which is empanelled with U. S. Consulate, British High Commission and French Trade Commission.
A patent is a monopoly right granted to an inventor by the Government for a limited period of time in consideration of disclosure of the invention. Not all inventions are patentable. The invention must be novel and not obvious and should qualify for industrial application. The invention must consist of an inventive step and should not be a mere rearrangement of known devices functioning independently of each other.
Before applying for a patent it is advisable to determine whether the invention is patentable. In case it is found that the invention is patentable, then a worldwide search should be conducted in order to determine whether there are any identical patents on record.
If the search is positive, then an application in the prescribed form with the prescribed fee is to be submitted at the Patent Office. The application should be accompanied by a specification. Subsequently, the application is examined and objections are raised. A suitable reply is also required to be filed. Thereafter the invention is advertised and any third party who is aggrieved may initiate opposition proceedings. Finally, if all the issues are settled letters patent is issued.
Trade Mark
A trade mark is a visual symbol applied to articles of commerce in order to indicate to the purchasing public and to the trade at large that the goods or services originate from a particular business source. It is advisable to conduct a trade mark search before making an application for registration of the trade mark.
If the search reveals no identical or similar trademarks, then an application in the prescribed form with the prescribed fee should be submitted at the trade mark office. The application is then examined and an appropriate reply is to be filed to meet the objections if any.
The mark is then advertised and oppositions may be initiated by third parties.
Finally, if there is no opposition the application proceeds towards trade mark registration. In case the opposition is decided in favour of the applicant, then the application proceeds toward registration as well.
Designs
Design registration protects the visual aspect or design of articles that are not merely utilitarian or functional. A search is advisable before a design application is made to the Patent Office. The application should be submitted in the prescribed form along with four sets of representations containing different views of the design. The Designs Office initially provides a filing number and date. Thereafter the Designs Office duly examines the application and communicates to the applicant any hindrances for registration of the design.
After the objections are met by the applicant, the Designs Office grants registration to the applicant.
The term of a design is 10 years and is renewable for a further period of five years.
Copyright
Copyright is an exclusive right granted for a fixed period of time. Copyright subsists in literary works, dramatic works, musical works and cinematograph films. In order to register a copyright an application is required to be made in the requisite form, including a Statement of Particulars and a Statement of Further Particulars along with the prescribed fees. The application must be accompanied by three copies of the published work and submitted to the Copyright Office. In case the work is unpublished a copy of the manuscript should accompany the application.
Geographical Indications
Geographical indications refer to the indications used on products to indicate that the product is of a specific quality that originates from a particular territory. Geographical indications indicate the qualities attached to the product due to the reputation of the place of origin of the product. Examples of Geographical Indications are Tirupati Laddoo,, Kolhapuri Chappals etc.
Summary:
In the modern business scenario the importance of Intellectual property has grown rapidly. Intellectual Property is in the form of intangible property. Such properties are created by the human mind. The notable types of Intellectual Properties are Patents, Trade Marks, Copyright, Design and Geographical Indications
Author is a practicing lawyer in India, specializing in Intellectual Property Laws, He is currently working in Biswajit Sarkar (www.biswajitsarkar.in ) which is empanelled with U. S. Consulate, British High Commission and French Trade Commission.
Thursday, August 11, 2011
Trade Mark Registration in India
A trade mark is a form of industrial property that may be defined as a symbol in the form of a word, letter, numeral, signature, name label, ticket, sound etc. capable of being represented graphically and which are applied to articles of commerce in order to distinguish the goods and services of one business entity from those of another.
Before selecting a trade mark the registrability of a trade mark is to be determined in order to ensure that the trade mark is good for registration. Generic marks describing the goods or service are not registrable. Invented words or coined words are considered good for registration.
A search is to be conducted in order to determine whether there are any similar or deceptively similar trade marks on record.
For Trade Mark Registration the owner of the proposed trade mark needs to file a trade mark application at the Trade Marks Registry along with the prescribed fee. Subsequently, a document containing the trade mark number is issued by the Trade Marks Registry.
The Trade Marks Registry then examines the application and raises its objections, if any. The applicant must meet the objections vide a suitable reply. An affidavit may also be required to be filed, evidencing the use of the trade mark. In case the Trade Mark Registry requires any further clarifications a hearing may be fixed. Finally, after all the objections are waived, the trade mark is accepted for advertisement and advertised in the Trade Marks Journal.
Any aggrieved third party may initiate an opposition, vide a notice of opposition within the prescribed period, after the trade mark is advertised, contesting the registration of the trade mark .The applicant must then file a counter statement within two months of receipt of the notice of opposition. Thereafter the opponent may file his evidence vide an affidavit of evidence in support of opposition. Subsequently, the applicant will have to file their evidence vide an affidavit and the opponent must file an evidence in reply. Finally, the matter is heard and adjudicated.
In case no opposition is filed or the opposition is heard and decided against the opponent, the trade mark is registered and entered in the register of trade marks.
The proprietor of a trade mark may also transfer his trade mark to any third party by virtue of an assignment deed. A registered trade mark is to be renewed every ten years by paying the prescribed renewal fee.
Before selecting a trade mark the registrability of a trade mark is to be determined in order to ensure that the trade mark is good for registration. Generic marks describing the goods or service are not registrable. Invented words or coined words are considered good for registration.
A search is to be conducted in order to determine whether there are any similar or deceptively similar trade marks on record.
For Trade Mark Registration the owner of the proposed trade mark needs to file a trade mark application at the Trade Marks Registry along with the prescribed fee. Subsequently, a document containing the trade mark number is issued by the Trade Marks Registry.
The Trade Marks Registry then examines the application and raises its objections, if any. The applicant must meet the objections vide a suitable reply. An affidavit may also be required to be filed, evidencing the use of the trade mark. In case the Trade Mark Registry requires any further clarifications a hearing may be fixed. Finally, after all the objections are waived, the trade mark is accepted for advertisement and advertised in the Trade Marks Journal.
Any aggrieved third party may initiate an opposition, vide a notice of opposition within the prescribed period, after the trade mark is advertised, contesting the registration of the trade mark .The applicant must then file a counter statement within two months of receipt of the notice of opposition. Thereafter the opponent may file his evidence vide an affidavit of evidence in support of opposition. Subsequently, the applicant will have to file their evidence vide an affidavit and the opponent must file an evidence in reply. Finally, the matter is heard and adjudicated.
In case no opposition is filed or the opposition is heard and decided against the opponent, the trade mark is registered and entered in the register of trade marks.
The proprietor of a trade mark may also transfer his trade mark to any third party by virtue of an assignment deed. A registered trade mark is to be renewed every ten years by paying the prescribed renewal fee.
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