INTELLECTUAL

PROPERTY RIGHTS-I
3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW
UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law University 3 and 5 Years LLB.
Intellectual Property Rights-I
Most important questions (Pattern of 10 and 6 marks)
Note: These questions are applicable for 16 marks pattern also
1. What are the factors responsible for the growth of patent law explain?
2. What is a specification? Explain its kinds along with legal requisites for
its submission?
3. Write a note on surrender of patent.
4. Define mark. Explain essentials of trade mark?
5. What are the grounds on which the registration of trade mark may be
refused? Examine.
6. Write a note on collective mark.
7. Briefly discuss the salient features of geographical indications of goods
(Registration and protection act) 1999.
8. Explain the procedure of registration of geographical indications.
9. Explain Internet policy of Government of India.
10.Write a note on Copyright in micro software.
11.Briefly discuss the salient features of information technology act 2000.
12.Write a note on data protection in cyberspace
13.Explain salient features of patent co-operation treaty?
14.Write a note on international registration of mark.
15.Explain the Functions of WIPO.
16.Write a note on coordination committee of WIPO.
17.Examine contours of different intellectual property rights.
18.Define an Invention. Describe the yardsticks’ that determine the
patentability of an invention?
19.How do you appreciate ‘Law passing -off’?
20.Examine in detail the procedure for the registration of a geographical
indications of goods (Registration and protection) Act, 1999.
21.Describe the provisions of information technology act 2000, dealing with
cybercrime.
22.Explain the scope and objectives of patent cooperation treaty?
23.Explain the grounds for revocation of patent.
24.Write a note on Transfer of patent rights.
25.Write a note on Trade Libel.
 26.Write a note on intellectual property and economic development.
27.Discuss the Economic and labour justification of protection of
intellectual property rights.
28.What is patentable invention? State those categories of inventions
which are not patentable?
29.Define patent? Explain the procedure for applying and granting of
patents?
30.Explain the grounds for refusal of registration of a trade mark.
31.Write a note on well-known trade mark.
32.Write a note on software privacy.
33.Explain the salient features of trade marks act 1999.
34.Discuss the salient features of Madrid convention?
35.Which act constitute infringement patent? Explain the remedies
available for infringement.
36.Define Cybercrime? Explain the different categories of Cybercrime.
37.Paris convention guarantees the protection of intellectual property
discuss.
38.Intellectual property is a valuable asset which may be exploited in a
number of ways explain?
39.What are the rights and obligations of patentee?
40.What are the powers and functions of the controller under information
technology act 2000?
41.Elucidate the grounds available for refusal of registration of trade mark.

BY
ANIL KUMAR K T LLB COACH
1)What is a Specification? Explain its kinds along with legal requisites for its
submission?

The provisions related to Specification of a Patent in India are provided under

Section 9, 10, 57, 59 of the Patent Act, 1970 and Rule 13, 14, 24A of the Patent
Rules, 2003. The Specification of a Patent is a techno-legal document that
contains technical and scientific claims and disclosures related to the invention
which are the basis of rights associated with the Patent. The Specification, thus,
forms a crucial part of the patent application. As per the Patent Act, 1970, and
the Patent Rules, 2003, a Patent Specification can be filed either as a Provisional
or Complete Specification.

Patent Specification and Its Importance

A patent specification can be defined as a highly technical and legal document

that discloses the invention to the public along with the best method of
performing it. The language and the content of the patent specification has to
be such that it enables the person ordinarily skilled in the art to practice the
invention. Secondly, patent specifications should identify the subject matter
over which the patent owner intends to claim exclusivity. The language of the
document is generally full of technical and legal jargon as it contains scientific
details of the invention.

Patent specifications must be drafted carefully from both legal and technical
perspective. If the document does not sufficiently disclose the means to
recreate the invention, the owner of the patent stands the risk of losing the
grant. Similarly, if the scope of the invention is not defined accurately, it allows
competitors to circumvent the patent and benefit from it. Therefore, one
needs to draft technically sound patent specifications with due care.

Types of Specifications

1. Provisional Patent Application: This type of patent application is

filed by an applicant only to secure a patent filing date with
the United States Patent and Trademark Office (USPTO). It is filed
when the inventor needs more time to perfect his/her invention.
While filing a provisional application, the applicant is required to file
only provisional patent specifications, which broadly, though not
completely, disclose the inventive concept.

2. Non-Provisional Patent Application: Also known as a regular patent

application, a non-provisional patent application is filed within 12
 months of filing a provisional application to secure patent rights for
an invention. Regular patent application must include a complete
specification of patent wherein the applicant discloses all details of
an invention in a sufficiently clear and complete manner. In contrast
to the provisional specifications, complete specification concludes at
least one claim for which the protection is sought.

Legal requisites for its submission

Now that the demarcation between the provisional and complete patent
specification is clear, this section of the article explains the elements of the
latter and how they should be drafted.

▪ Title: The first part of the complete patent specification should be

the title of the invention. The applicant/patent agent must ensure
that it fairly captures specific features of the invention. Secondly, the
title shouldn’t include abbreviations, the word “patent”, etc. It must
clearly spell the objective of the invention and should be between
10-15 words.

▪ Field of Invention: This is the section that highlights general and

specific fields in which the subject matter of the invention falls. The
field of invention helps the examiner to decide which search fields
he/she can look into to find similar published technology, if any. This
portion of the specification should ideally start with a general
 statement on invention to indicate the subject matter that the
invention is related to.
▪ Background: This section briefly discusses prior arts and their
drawbacks or disadvantages, if any. The main objective behind
providing this information is to distinguish the invention at hand
from the ones that are already being practiced in the targeted
industry. The background section sets the stage for describing the
invention in detail at a later stage.
▪ Summary: As the name suggests, summary gives a gist of the
invention – its nature, objective, composition and operation. Most
importantly, summary of the invention should come before the
description of the claimed invention. Furthermore, the summary
briefly mentions solutions to the problems talked about in the
background section.

▪ Brief Description of Drawings, if any: Though not mandatory, patent

applications often include drawings/flowcharts/figures to visually
describe the invention, helping examiner to understand the
innovation better. So this section presents a brief overview of the
drawings. As per the guidelines of the USPTO, the figures should be
clean black-and-white line drawings that accurately illustrate the
invention.

▪ Detailed Description: This section focuses on providing sufficient

details of the invention, including the structural details, how it is
used, its objectives and advantages. Solutions achieved by the
invention are covered in depth in this section. Most importantly, the
detailed description should be provided in a manner that any person
with ordinary skill in the art is able to practice the invention.
Furthermore, this part may also include examples explaining the
overall working of the invention in different environments and
possible variations. Also, the description is written from a
perspective that every claim is sufficiently enabled.

▪ Abstract: The complete specification of patent includes an abstract

that gives technical information about the invention. Essentially, it’s
a summary of the matter in the patent specification. The abstract
should not be more than 150 words.

▪ Claim(s): To say the least, claims section is the most critical part of a
patent application. This is because the patentability of an invention
 is determined by them. Claims clearly lay out the scope of the
invention for which protection is sought. Claims should cover
important aspects of the invention, such as novelty. This section
should be written in a manner to provide the broadest possible
coverage and protection for the invention, while remaining novel
and non-obvious in light of the existing technologies or art.

▪ Drawings: A patent specification document also contains drawings

that help in aiding the examiner’s understanding of the invention.
Drawings can be diagrams, flowcharts or figures with numeral
labelling that identify components or features of the invention
described in the claims and detailed description.

2)Write a note on Surrender of Patent.

Section 63 of the Patents Act, 1970 allows a patentee to surrender a patent. The
patentee can offer to surrender his patent by giving notice to the
Controller.1 The offer to surrender the patent should be published by the
Controller, and every person interested in the patent must also be notified of
the same.2
After the publication, any interested person can oppose the surrender, by giving
notice to the Controller which should be notified by the Controller to the
patentee.3 If the patentee or the opponent wants to be heard, the Controller,
on being satisfied that the patent may be surrendered and after the hearing,
may accept the offer and revoke the patent by order.4
The notice of opposition must be given to the Controller within a period of 3
months from the date of publication of the notice to surrender the patent.5 If
the patentee’s offer to surrender the patent is accepted by the Controller, he
may:6
• direct the patentee to return the patent; and
• on receiving the patent revoke it by order; and
• publish the revocation of the patent.

3)Define Trademark? Explain essentials of Trade mark?

Introduction:

The term trademark refers to a recognizable insignia, phrase, word, or symbol

that denotes a specific product and legally differentiates it from all other
products of its kind. A trademark exclusively identifies a product as belonging
to a specific company and recognizes the company's ownership of the brand.
Trademarks are generally considered a form of intellectual property and may
or may not be registered.

• A trademark is an easily recognizable symbol, phrase, or word that

denotes a specific product.
• It legally differentiates a product or service from all others of its kind
and recognizes the source company's ownership of the brand.
• Trademarks may or may not be registered and are denoted by the ® and
™ symbols respectively.
• Although trademarks do not expire, the owner must make regular use
of it in order to receive the protections associated with them. 1

A “Trade mark” [TM] is defined under Section 2(zb) of the Indian Trademarks
Act, 1999 as “mark capable of being represented graphically and which is
capable of distinguishing the goods or services of one person from those of
others and may include a shape of goods, their packaging, and combination of
colors.”

Essentials of Trade Mark

1. It must be a mark that is a device, brand, heading, label, ticket, name or

an abbreviation of a name, signature, word, letter or numeral shape of
goods, packing or combination of colors or any combination thereof.
2. It must be capable of being represented graphically.
3. It must be capable of distinguishing the goods or services of one person
from those of others.
4. It must be used or proposed to be used in relation to goods or services.
5. The use must be of a printed or other visual representation of the mark.
6. In relation to services, it must be the use of the mark or availability or
performance of services.
7. The use must be for the purpose of indicating the connection in the
course of trade between the goods or services, and some person having
the right to use the mark either as proprietor or by way of permitted user
as the case may be. It is not necessary that the person using the mark
should reveal his identity.4

• A trademark must be a mark which includes a device, heading, brand,

label, ticket, signature, word, letter, name, numeral, packaging or
combination of colors or any combination of the above attributes.
• It should be easy to speak and spell. A good trademark is such that the
public can easily spell and speak.
 • It should be easy to remember. A good trademark that is easy to speak
and spell can be easily remembered as well. So that it becomes easy for
public to
• It should not be too lengthy and complicated to be forgotten easily. If it
is lengthy or complicated, people will not bother to take the effort to
memorize it and ultimately it will be forgotten.
• It must be distinctive. It can be natural distinctiveness or acquired
distinctiveness.
• The best trademarks are invented words or coined words or unique
geometrical designs
• It can only be suggestive of the quality of the products, but not
descriptive
• A good trademark should not be barred under the Trade Marks
Act under the Prohibited classes of trademarks

4)What are the grounds on which the registration of trade mark may refused?
Examine.

Absolute grounds for refusal of Trade Mark

I. The trademarks that are:

• Incapable of distinguishing the goods/services of the applicant with

those of others;
• or may serve in trade to designate kind, quality, purpose, value,
geographical origin;
• or have been commonly used in the current language or established
practices of trade;
shall not be registered.
Exception:If before the date of application, the mark has acquired
distinctiveness by use or it is a well-known mark, it cannot be denied
registration.

II. A Mark shall not be registered as a Trade Mark if it causes:

• Confusion or deceives the public; or

• Hurts religious susceptibilities of class/ section of citizens of India; or
• Comprises/contains scandalous/obscene matter which is against the
morality of the public; or
 • Is prohibited under the Emblems and Names Act, 1950

III. 3-Dimensional Mark or Shape of Goods

These may be registered as a trademark. However, the Act states that a Mark
shall not be registered as a Trade Mark if:

• it consists exclusively of the shape of goods itself or the shape of goods

necessary to obtain a technical result; or
• The shape which adds substantial value to the goods- the shape should
have visual appeal to add value and not be of a functional nature to fall
within the purview of this provision.
• The nature of goods or services in relation to which trademark is used or
proposed to be used shall not be a ground of refusal of registration.

IV. Chemical element/compound:

No word which is the name of a chemical element/ compound (not mixture) or
which is declared by the World Health Organization and notified by the
Registrar of Trade Marks as an international non-proprietary name /
deceptively similar to such names shall be registered as a trademark. Even if
the aforementioned word has acquired distinctiveness as a trademark it still
cannot be registered as a trademark.
Relative grounds for refusal of Trade Mark

I. Except in case of honest concurrent use, a Trade Mark shall not be

registered if:

• There is a likelihood of confusion for the public because the trademark

being applied for is identical with an earlier trademark and the goods/
services of the two marks are similar; or
• The trademark being applied for is similar to an earlier trademark and
the goods/ services of the two marks are identical.

II. Passing off or Copyright Infringement:

A trademark shall not be registered if its use is liable to be prevented by virtue
of law of Passing off or Law of Copyright.

III. Earlier Trade Mark:

The term “Earlier Trade Mark” for the purpose of ‘Relative Grounds for Refusal
of Registration’ by the Indian Trade Mark Office means a Registered mark or a
convention application (from a citizen of a country/group of countries with
which India has a treaty/ agreement) for which the date of application was
earlier than the trademark sought to be registered.

IV. Living or Recently Deceased Person:

If an application for registration is in respect of a trademark which falsely
suggests a connection with a living person or a person who died within 20
years prior to the date of application, then the Trade Mark Registrar may, prior
to proceeding with the application, require the applicant to furnish consent in
writing of such living person; or legal representative of the deceased person.
The Registrar may refuse to proceed with the application if such consent is not
furnished.

5)Write a note on Collective Marks

Introduction:
Section 61 of the Trade Marks Act, 1999 prescribes the special provisions for
collective trademarks. The provisions of the Trade Mark Act, 1999 are applicable
to collective marks but they are subject to provisions under Chapter VIII of the
Act.4 Under section 2(1)(zb) of the Act the “trademark” for the goods/services
of one person are distinguished from those of others, whereas in the case of
“collective marks” the “goods/services of members of an association of persons
which is the proprietor of the mark” is distinguished from others.5
A collective mark shall not be registered:6

• If there is a likelihood of the public to be confused or deceived ;

• If it is considered as something other than a collective mark.
Furthermore, for the mark for which registration is sought, the Registrar may
require that the mark should be composed of some indication that signifies it to
be a collective mark. The regulations governing the use of a collective mark must
accompany the application for registration of a collective mark.7 Furthermore,
as per Rule 131(4) of the Trade Marks Rules, 2017 the regulations governing
collective trademarks should specify:

• the association’s name and object;

• the details of members;
 • the membership conditions and the relation of each member with
the group;
• the people authorised to use the mark and their control over the use
of the collective mark;
• conditions for using the mark;
• sanctions against misuse;
• the procedure to deal with appeals against the use of the collective
mark.
The important considerations which must be assessed by an Examiner with
respect to a registration application for a collective mark are:

• an association of persons own the collective mark and not a

partnership;
• the collective mark is used and belongs to a group;
• the collective mark may not be used by the association itself, but the
members using the collective mark must comply with certain quality
standards;
• the collective mark should be indicative of a trade connection with
the association who is the proprietor of the mark.
Section 68 of the Trade Marks Act, 1999 prescribes additional grounds on the
basis of which the registration of a collective mark can be removed from the
register. These include:

• the proprietor or the authorised user has caused the collective mark
to mislead the public through the manner in which it has been used
by them;
• the proprietor has not complied with the regulations that govern the
use of the mark.

6)Explain the procedure of registration process of Geographical Indication?

STEP 1 : Filing of application

The first step is to verify whether the geographical indication comes within the
domain of the definition of Gl under section 2(1)(e).

The association of persons or any organization or producers or any authority

must represent the importance of producers of the concerned goods and must
file the affidavit on the process on how the applicant claims to correspond to
their interest.

• Application must be prepared in triplicate form.

• The application must have the signature of the applicant or his agent
and it should be accompanied by the complete statement of case.

• Details on the special characteristics and distinctiveness and how such

standards are protected and maintained.

• Three certified copies about the map concerning the region to which the
geographical indication relates.

• Details on the inspection of the structure if any to regulate and control

the use of geographical indication in the location to which it relates.

• Give complete details on all the applicants together with the address. If
there are a huge number of producers then a combined reference can
be made in the application to all the producers of the G.I and the goods
if registered shall be indicated accordingly in the register.

STEP 2 and 3: Preliminary verification and examination

• The Examiner shall inspect the application in case of any deficiencies.

• The applicant is bound to remedy the same within one month of the
communication of deficiency with this regard.

• The content of the statement on the given case is assessed by a group of

experts who are consulting and are well versed on that subject.

• The will ascertain and ensure the correctness of the information

furnished.
 • Subsequently an Examination Report shall be issued.

STEP 4: Show cause notice

• If the Registrar is having any objection in the application, he is obliged to

communicate such objection.

• It is mandatory for the applicant to respond within the time period of

two months and also apply for a hearing.

• The decision of the applicant shall be duly communicated. If the

applicant wishes to make an appeal, he may request for the same within
one month.

• The Registrar has got the power to withdraw any application, after giving
a reasonable opportunity of being heard if it is accepted in error.

STEP 5: Publication in the geographical indications Journal

Every application shall be published in the Geographical Indications Journal.

STEP 6: Opposition to Registration

• Any person interested in opposing the registration can file the notice of
opposition within three months which can be further extended by
another one month on request but it has to be filed before the
completion of three months while opposing the GI application that is
published in the Journal.

• The registrar shall send and provide a copy of the notice to the
applicant.

• The applicant shall within two months send a copy of the counter
statement.
 • If he is not able to do this, then it shall be deemed that he has
abandoned his application. Where the counter-statement is filed, the
registrar shall send a copy on the every person giving the notice of
opposition.

• Subsequently, both sides will be able to give their concerned evidences

by way of supporting documents and affidavit.

• A date for hearing of the case shall be fixed thereafter.

STEP 7: Registration

• Where an application for a geographical indication has been accepted,

then the registrar shall register that particular geographical indication. If
the same is registered then the filing date of the application shall be
deemed to be the date of registration date.

• The registrar shall send a Certificate with the seal of the Geographical
indications registry to the applicant.

STEP 8: Renewal of the GI

A registered geographical indication shall be valid for 10 years and shall be

renewed by payment of renewal fee.

STEP 9: Additional protection to notified goods

The Act provides for additional protection for the notified goods.

STEP 10: Appeal

Any person aggrieved by the decision or order shall prefer and file an appeal to
the intellectual property appellate board (IPAB) within three months.
7.Briefly discuss the salient Features of the Information Technology Act, 2000

a. All electronic contracts made through secure electronic channels are

legally valid.
b. Legal recognition for digital signatures.
c. Security measures for electronic records and also digital signatures
are in place
d. A procedure for the appointment of adjudicating officers for holding
inquiries under the Act is finalized
e. Provision for establishing a Cyber Regulatory Appellant Tribunal
under the Act. Further, this tribunal will handle all appeals made
against the order of the Controller or Adjudicating Officer.
f. An appeal against the order of the Cyber Appellant Tribunal is
possible only in the High Court
g. Digital Signatures will use an asymmetric cryptosystem and also a
hash function
h. Provision for the appointment of the Controller of Certifying
Authorities (CCA) to license and regulate the working of Certifying
Authorities. The Controller to act as a repository of all digital
signatures.
i. The Act applies to offences or contraventions committed outside
India
j. Senior police officers and other officers can enter any public place
and search and arrest without warrant
k. Provisions for the constitution of a Cyber Regulations Advisory
Committee to advise the Central Government and Controller.
Applicability and Non-Applicability of the Act
Applicability

According to Section 1 (2), the Act extends to the entire country, which also
includes Jammu and Kashmir. In order to include Jammu and Kashmir, the Act
uses Article 253 of the constitution. Further, it does not take citizenship into
account and provides extra-territorial jurisdiction.
Section 1 (2) along with Section 75, specifies that the Act is applicable to any
offence or contravention committed outside India as well. If the conduct of
person constituting the offence involves a computer or a computerized system
or network located in India, then irrespective of his/her nationality, the person is
punishable under the Act.

Lack of international cooperation is the only limitation of this provision.

Non-Applicability

According to Section 1 (4) of the Information Technology Act, 2000, the Act is not
applicable to the following documents:

1. Execution of Negotiable Instrument under Negotiable Instruments

Act, 1881, except cheques.
2. Execution of a Power of Attorney under the Powers of Attorney Act,
1882.
3. Creation of Trust under the Indian Trust Act, 1882.
4. Execution of a Will under the Indian Succession Act, 1925 including
any other testamentary disposition
by whatever name called.
5. Entering into a contract for the sale of conveyance of immovable
property or any interest in such property.
6. Any such class of documents or transactions as may be notified by
the Central Government in the Gazette.

7)Write a note on Data Protection under in cyberspace?

Introduction:
In India, till now there is no exclusive law pertaining to the rights of an
individual’s privacy. Only there is Information Technology act, 2000, which deals
with cyber crimes and provides remedies against the violation of the act. The act
contains few provisions related to the individual’s privacy but they are not
exhaustive in nature.
Under section 43A of the Information Technology Act, 2000[3], a body corporate
who is possessing, dealing or handling any sensitive personal data or
information of an individual, and is negligent in implementing and maintaining
reasonable security practices in protecting the data and results in wrongful loss
or wrongful gain to any person, then such body corporate may be held liable to
pay damages to the person so affected. It is important to note that there is no
maximum limit specified in the act for the compensation that can be claimed by
the affected party in such circumstances.

Information Technology (Reasonable Security Practices and Procedures and

Sensitive Personal Data or Information) Rules, 2011 deals with the protection
of “Sensitive personal data or information of a person”, which includes the
personal information relating to:

• Passwords;
• Financial information such as bank account or credit or debit card or
other payment instrument details;
• Sexual orientation;
• Medical records and history; and
• Biometric information.
Under section 72A of the Information Technology Act, 2000[4], disclosure of
information, knowingly and intentionally, without the consent of the person
concerned and in breach of the lawful contract has been also made punishable
with imprisonment for a term extending to three years and fine extending to Rs
5,00,000.

Under Section 69 of the Act[5], which is an exception to the general rule of

maintenance of privacy and secrecy of the information, provides that where the
Government is satisfied that it is necessary for the interest of:

• the sovereignty or integrity of India,

• defence of India,
• security of the State,
• friendly relations with foreign States,
• public order,
 • for preventing incitement to the commission of any cognizable offence
relating to above, or
• for the investigation of any offence.

8)Explain Salient features of Patent cooperation Treaty.

Basic Features of PCT System

1. Formal examination done by one office.

2. Retrieval is carried out by one office.
3. International publication done by one office.
4. Examination and authorization finished by national office.
5. Single application with legal effect in all PCT countries.
6. 148 countries and 4 regional patent systems.

PCT Filing Process

STEP 1 – Filing of Local application

First applicant need to file patent application in home country.

STEP – 2 Filing of PCT application

Applicant need to file a national application along with international application

in one language and need to pay single set of fee. PCT application is to be filed
within 12 months after filing a national application. Priority date is given by the
national office.

PCT application can also be directly filed to RO (receiving office) office of WIPO.

STEP – 3 Checking for Defects

The check is conducted by the receiving office, it is divided into two parts. The
first part concerns the requirements of according an international filing date as
set out in Article 11(1) of PCT. The second part concerns the formal and physical
requirements under Article 14.

STEP – 4 International Search Report

Application is transmitted to an International searching authority. An

International Searching Authority search an application and check for a prior art
and state of art. They made it clear whether or not document that have been
presented is eligible for grant of patent. They establish it on the basis of their
written opinion. Within 16 months from the date of filing, ISR (International
search report) will give search report with written opinion.

{ Prior art: everything which has been made available to the public anywhere in
the world by means of written document which is capable of being of providing
assistance in determining that the claimed invention is new or not and also that
it does or does not involve an inventive step.}

STEP 5 International Publication

After submitting the necessary document user application is published, after the
completion of 18 months. Before that an application is kept secret. International
Bureau (IB) of WIPO publishes the PCT application. Content of application is
disclosed to the general public.

STEP – 6 International search

Request for supplementary search is filed by the application before completion

of 19 months from the priority date. Under this applicant demand for
international preliminary examination.

STEP – 7 International Preliminary Report

Search authority will give report on patentability, whether or not patent is to be

granted. This is to be given within 28 months by the competent authority.

STEP – 8 Enter in National Phase

After completion of all necessary requirements patent is granted by national

office and likewise patent is granted in all other contracting states. Patent is
granted to the applicant before the completion of 30 months .After this
applicant can seek protection.

9)Write a note on international registration of mark.

Introduction:

International trademark registration application under the Madrid Protocol

must be filed by the trademark applicant through the trademark office of the
applicant, know as the office of origin. In case of Indian Businesses, the Office of
Registrar of Trademark, India is the office of origin. The office of origin will
process the trademark application and file it with the Intellectual Property
Organization at Geneva.

If the trademark application is found fit, then the mark is recorded in the
International Register and published in the World Intellectual Property
Organization (WIPO) Gazette of International Marks. The International Bureau
then provides a certificate of international registration and notifies each of the
country contracting to the Madrid Protocol for which protection has been
requested by the trademark applicant. Each of the countries trademark office
has the right to refuse protection of the mark by notifying to the International
Bureau within the time limits specified in the Madrid Protocol. The
Madrid Protocol has set strict time limits of 12 or 18 months for objections to
be raised by the designated offices.

Any objection to registration of the trademark must be made to the

International Bureau in the prescribed format. If there are no refusals by any of
the country, then the protection of the mark in each of the country is the same
as if it had been registered by the Office of that country.

Once an international trademark is registered under the Madrid Protocol,

the mark is registered for 10 years. International trademark registrations can be
renewed at the end of the 10 year period directly through WIPO or through the
concerned office of origin.

Requirements for Obtaining International Trademark Registration

There are three main requirements for obtaining an international trademark
registration in India:
 • The applicant should be a national of India or domiciled in India or have
real and effective business or commercial establishment in India.
• The applicant must have a national (Indian) trademark application or
registration of a trademark with the Indian Trade Marks Registry. This
national trademark application/registration will be used as the basis of
the international application. The international application will have the
same trademark as mentioned in the national trademark application or
registration; The list of goods and services mentioned in the international
application should also be identical with the national mark.
• The applicant in the international application must choose one or more
other member countries of the Madrid Protocol, where the applicant
wants to protect his trademark.

10)Explain the Functions of WIPO

The World Intellectual Property Organisation (WIPO) was established with the
intent to perform the following functions:

• To assist the development of campaigns that improve IP Protection all

over the globe and keep the national legislations in harmony.
• Signing international agreements related to Intellectual Property Rights
(IPR) protection.
• To implement administrative functions discussed by the Berne and Paris
Unions.
• To render legal and technical assistance in the field of IP.
• To conduct research and publish its results as well as to collect and
circulate information.
• To ensure the work of services that facilitate the International Intellectual
Property Protection.
• To implement other appropriate and necessary actions.

11)Write a note on WIPO Coordination Committee

The WIPO Coordination Committee is established by Article 8 of the

Convention Establishing the World Intellectual Property Organization
(“the WIPO Convention”) as the executive coordinating organ among the
various organs of States constituted under the treaties administered by
WIPO. It derives its executive character from its limited membership (its
 current membership is 71 States, compared to the total WIPO
membership of 171 States), and from the annual periodicity of its
ordinary meetings,1 in contrast to the biennial periodicity of the
ordinary meetings of the WIPO General Assembly2 and the Assemblies
of the various Unions administered by WIPO.3

The function of the Coordination Committee is, in general, to deal with or

provide advice on matters that are common to two or more of the Unions
administered by WIPO.
Thus, for example, the Coordination Committee is responsible for nominating a
candidate for appointment to the post of Director General,4 for approving the
proposed appointments of Deputy Directors General,5 for approving the staff
regulations.
The membership of the Coordination Committee is established once
every two years, at the ordinary sessions of the Assemblies of Member States.
The tenure of a member is two years (renewable). The membership of the
Coordination Committee for the period September 1999 to September 2001
thus falls to be established during the meetings of the Assemblies of Member
States in September 1999. Document A/34/15 (“Election of the Members of
the Executive Committees of the Paris and Berne Unions and Designation of
the Ad Hoc Members of the WIPO Coordination Committee”) addresses the
establishment of the membership of the Coordination Committee for the
coming two years. That document deals, however, with the constitutional
manner in which the membership of the Coordination Committee is to be
established, because the membership is not directly elected or appointed by
any one organ but, rather, consists of States drawn from three other bodies,
namely
• (i) the Executive Committee of the Paris Union,
• (ii) the Executive Committee of the Berne Union, and
 • (iii) one-fourth of the States party to the WIPO Convention that are
not members of any of the Unions administered by WIPO, as designated
by the WIPO Conference.
12)Examine the contours different intellectual property Rights.
Types of Intellectual Property Rights

IPRs are fundamental to encouraging investment in research as without some

form of protection, investors and inventors would not be able to benefit from
their creative efforts. Owners of rights can prevent unauthorised use of their
IP, to stop copying, to control distribution, and to retain, license or sell their IP.

A number of common IPRs are outlined in the table below

A patent protects an invention. It gives the holder

an exclusive right to prevent others from selling,
Patents making and using the patented invention for a
certain period (typically 20 years from filing date)

Copyright protects the expression of literary or

artistic work. Protection arises automatically giving
Copyright
the holder the exclusive right to control
reproduction or adaptation.

A trademark is a distinctive sign which is used to

distinguish the products or services of one business
Trademarks
from others. Trademarks are often closely linked to
brands.

Protects the form of outward appearance or

Design aesthetic style of an object. Does not protect
functionality or unseen (internal) design elements.

Database Database right prevents copying of substantial

parts of a database. The protection is not over the
 form of expression of information but of the
information itself, but in many other aspects
database right is similar to copyright.

A trade secret is a formula, practice, process,

design or compilation of information used by a
Trade
business to obtain an advantage over competitors.
secrets
Trade secrets are by definition not disclosed to the
world at large.

13)Define Invention? Describe the yardsticks that determine patentability of

an invention?

Introduction:

According to Section 2(j) of the Indian Patents Act, 1970 an invention means "a
new product or process involving an inventive step and capable of industrial
application.", such invention protected under the patent law refers to
patented.

The following criteria determine what can be patented in India:

1. Patentable subject matter:

The foremost consideration is to determine whether the invention relates to a
patentable subject-matter. Sections 3 and 4 of the Patents Act list out non-
patentable subject matter. As long as the invention does not fall under any
provision of Sections 3 or 4, it means it has patentable subject matter (subject
to the satisfaction of the other criteria).

2. Novelty:
Novelty is an important criterion in determining patentability of an invention.
novelty or new invention is defined under Section 2(l) of the Patents Act as
"any invention or technology which has not been anticipated by publication in
any document or used in the country or elsewhere in the world before the
date of filing of patent application with complete specification, i.e., the subject
matter has not fallen in public domain or that it does not form part of the state
of the art".
Simply put, the novelty requirement basically states that an invention should
never have been published in the public domain. It must be new with no same
or similar prior arts.

3. Inventive step or Non-Obviousness:

Inventive step is defined under Section 2(ja) of the Patents Act 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". This means that the
invention must not be obvious to a person skilled in the same field as the
invention relates to. It must be inventive and not obvious to a person skilled in
the same field.

4. Capable of Industrial Application:

Industrial applicability is defined under Section 2(ac) of the Patents Act as "the
invention is capable of being made or used in an industry". This essentially
means that the invention cannot exist in abstract. It must be capable of being
applied in any industry, which means that the invention must have practical
utility in order to be patentable.

14)How do you Appreciate law passing Off?

Introduction:

Passing off is a common law tort, which can be used to enforce unregistered
trademark rights. The law of passing off prevents one person from
misrepresenting his goods or services as that of another.

The concept of passing off has undergone changes in the course of time. At
first it was restricted to the representation of one person's goods as those of
another. Later it was extended to business and services. Subsequently it was
further extended to professions and non-trading activities. Today it is applied
to many forms of unfair trading and unfair competition where the activities of
one person cause damage or injury to the goodwill associated with the
activities of another person or group of persons.

The basic question in this tort turns upon whether the defendants' conduct is
such as to tend to mislead the public to believe that the defendants' business is
the plaintiff's or to cause confusion between the business activities of the two.

The tort of passing off is sufficiently wide to give relief to charities engaged in
trading type activities.

In British Diabetic Association V Diabetic Society 1, both the parties were

charitable societies. Their names were deceptively similar. The words
'Association' and 'Society' were too close since they were similar in derivation
and meaning and were not wholly dissimilar in form. Permanent injunction
granted.

Elements Of Passing Off

The three fundamental elements of passing off are Reputation,
Misrepresentation and Damage to goodwill. These three elements are also
known as the CLASSICAL TRINITY, as restated by the House of Lords in the case
of Reckitt & Colman Ltd V Borden Inc . It was stated in this case that in a suit
for passing off the plaintiff must establish firstly, goodwill or reputation
attached to his goods or services. Secondly he must prove a misrepresentation
by the defendant to the public i.e. leading or likely to lead the public to believe
that the goods and services offered by him are that of the plaintiff's. Lastly he
must demonstrate that he has suffered a loss due to the belief that the
defendant's goods and services are those of the plaintiff's.

Modern Elements of Passing off - In the case Erven Warnink Vs. Townend 3 ,
Lord Diplock gave the essential modern characteristics of a passing off action.
They are as follows: -
1. Misrepresentation
2. Made by a person in the course of trade
3. To prospective customers of his or ultimate consumers of goods or services
supplied by him.
4. Which is calculated to injure the business or goodwill of another trader.

20.Describe the provisions of information technology act 2000 dealing with

cyber crime.

Introduction:

The increase rate of technology in computers has led to enactment of

Information Technology Act 2000. The converting of the paper work into
electronic records, the storage of the electronic data, has led tremendous
changed the scenario of the country. The Act further amends the Indian Penal
Code, 1860, The Evidence Act, 1872, The Banker’s Book’s Evidence Act, 1891
and The Reserve Bank of India Act, 1934.
The offences included in the IT Act 2000 are as follows:
1. Tampering with the computer source documents.
2. Hacking with computer system.
3. Publishing of information which is obscene in electronic form.
4. Power of Controller to give directions
5. Directions of Controller to a subscriber to extend facilities to decrypt
information
6. Protected system
7. Penalty for misrepresentation
8. Penalty for breach of confidentiality and privacy
9. Penalty for publishing Digital Signature Certificate false in certain particulars
10. Publication for fraudulent purpose
11. Act to apply for offence or contravention committed outside India
12. Confiscation
13. Penalties or confiscation not to interfere with other punishments.
14. Power to investigate offences.

Offences Under The It Act 2000:

Section 65. Tampering with computer source documents:
Whoever knowingly or intentionally conceals, destroys or alters or
intentionally or knowingly causes another to conceal, destroy or alter any
computer source code used for a computer, computer Programme, computer
system or computer network, when the computer source code is required to
be kept or maintained by law for the being time in force, shall be punishable
with imprisonment up to three year, or with fine which may extend up to two
lakh rupees, or with both.

The following table shows the offence and penalties against all the mentioned
sections of the I.T. Act −

Section Offence Punishment Bailability and

Congizability

65 Tampering with Imprisonment up to Offence is Bailable,

Computer Source 3 years or fine up to Cognizable and
Code Rs 2 lakhs
 triable by Court of
JMFC.

66 Computer Related Imprisonment up to Offence is Bailable,

Offences 3 years or fine up to Cognizable and
Rs 5 lakhs

66-A Sending offensive Imprisonment up to Offence is Bailable,

messages through 3 years and fine Cognizable and
Communication triable by Court of
service, etc... JMFC

66-B Dishonestly receiving Imprisonment up to Offence is Bailable,

stolen computer 3 years and/or fine Cognizable and
resource or up to Rs. 1 lakh triable by Court of
communication JMFC
device

66-C Identity Theft Imprisonment of Offence is Bailable,

either description up Cognizable and
to 3 years and/or triable by Court of
fine up to Rs. 1 lakh JMFC

66-D Cheating by Imprisonment of Offence is Bailable,

Personation by using either description up Cognizable and
computer resource to 3 years and /or triable by Court of
fine up to Rs. 1 lakh JMFC

66-E Violation of Privacy Imprisonment up to Offence is Bailable,

3 years and /or fine Cognizable and
up to Rs. 2 lakh triable by Court of
JMFC

66-F Cyber Terrorism Imprisonment Offence is Non-

extend to Bailable,
 imprisonment for Cognizable and
Life triable by Court of
Sessions

15.Explain the scope and objectives of patent cooperation treaty?

Introduction:

The Patent Cooperation Treaty (PCT) provides us with an overview of an

international treaty which is duly administered by the World Intellectual
Property Organization (WIPO). The Patent Cooperation Treaty (PCT) is an
international treaty with more than 148 Contracting States. It is administered by
the World Intellectual Property Organization.

Objectives,

• To bring the world within reach.

• Removes major costs and provides users with additional time to
consider their various Patent granting options.
• Provides a strong basis to the user for Patenting decisions.
• Is effectively used by the world’s major corporations, universities and
research institutions when they seek international patent protection.

To simplify filing of patent applications in several countries:

To enable business To avoid duplication of works: filing with a single patent

office, of a single application, in one language To facilitate and accelerate access
to technical information related to inventions

To benefit from the PCT system the applicant must be national or resident of
one of the PCT Contracting States

Scope:
 • A single application in single language filed in a single country called the
international application.
• Provides a strong basis for patenting decisions to the users.
• Harmonizes formal requirements.
• Used by the world’s major corporations, universities and research
institutions when they seek international patent protection.
• This single application has the effect of filing simultaneously in different
countries (designated countries).
• Protects applicant from certain inadvertent errors.
• Evolves to meet user needs.

Scope.

International Phase

Filing of international application

International search

International publication in PCT gazette

International preliminary examination

National Phase

Filing of application before designated office/elected office

Decision on granting patent

16)Write a note on Trade Libel?

Introduction:
Trade libel is defined as the publication of a false statement of fact that is an
intentional disparagement of the quality of the services or products of the
plaintiff’s business and that result in pecuniary damages to the plaintiff. It
constitutes a business tort and allows the injured party to seek both
compensatory damages and punitive damages. (The reader is advised to read
the article on Torts, Negligent and Intentional for a background discussion of
torts in general and punitive damages in particular.)
Clearly normal competition is not only allowed but encouraged in the United
States and efforts to restrict competition are themselves, illegal. The difference
between trade libel and allowed competition is the knowing falsity of the
statements made and the intent to use that falsity to achieve economic
advantage.
What Are the Elements of the Cause of Action?:
1. The defendant must have “published” an untrue statement of fact.
“Published” means communicated same or allowed the communication of the
statement to third parties. While there is a great deal of law in slander as to
what constitutes a publication and whether a negligent publication can allow a
cause of action, the courts normally hold that if you intended to publish or if
you reasonably could have expected the communication to be published, you
are liable.
Remember “published” does not mean publishing a written paper or book. It
simply means communicated. If the communication is oral, it is slander. If the
communication is written it is libel. Either one can allow a cause of action.
Thus, if I post in a public place, such as a web page, information that I know
will be examined by others, that is publishing even if I do not expressly tell
people to open that page. Thus, if I write a letter to a governmental agency
thus have it privileged but send a copy of the letter to an addressee who I
know will spread the letter around, that is publishing. Thus if I loudly make
comments about you that I know will be overheard, that is publishing.

2. The statements or written communications must be untrue. It is an axiom of

the law that truth is an absolute defense to claims of slander or libel. (This is
not necessarily true for other related torts such as invasion of privacy or
intentional infliction of emotional distress.)

3. The defendant must have made the communications knowing they were
false or with reckless disregard of the truth. (Leonardini v Shell Oil Co. (1989)
216 CA3d 547.) Reckless disregard of the truth is determined on a case by case
basis but essentially means that no reasonable person would have considered
the defendant’s fact finding as acceptable practice prior to publishing the
untrue statements. A typical situation is that the defendant claims the product
is unsafe without either testing the product or investigating the claims of lack
of safety in any verifiable manner.
4. The communication must have resulted in pecuniary damage to plaintiff.
Plaintiff must have loss of business or the plaintiff’s business have been
significantly damaged in reputation to the extent that loss of future business
may be proven.
5. The statement must have been more than a statement of opinion. It must be
a statement of fact. Thus, if someone expresses an opinion that your products
are poorly made and possibly unsafe and makes it clear it is an opinion that is
unlikely to be held to be trade libel. Compare two different types of
communications: “In my opinion, the oil is likely to cause harm to your
engine,” versus, “The oil is likely to cause harm to your engine.” The latter, if
untrue, would be trade libel. The former may not be. Published statements of
opinion do not constitute trade libel: they must be statements of fact which
are untrue.

17)Write on Intellectual property and economic development?

Introduction:

Intellectual Property is that property that is developed by the human mind and
by human intellect. Now intellectual property and rights attached to intellectual
property are becoming very precious and valuable. In India, there are well-
established administrative, statutory, and Judicial frameworks for protecting
IPR. India has to comply with the Agreement on Trade-Related Intellectual
Property Rights (“TRIPS”) by enacting the necessary statutes. Intellectual
Property rights deal with Trademark, Copyrights, Patents, and Geographical
Indications of goods. The law protecting some special species of Intellectual
property rights in India are:

• The Geographical Indications of Goods (Registration and Protection) Act,

1999;
• Trade Marks Act, 1999;
• The Semiconductor Integrated Circuits Layout Design Act, 2000;
• The Protection of Plants & Varieties and Farmers Rights Act, 2001;
• The Biological Diversity Act, 2002;
• The Copyright Act, 1957; and
• The Patent Act, 1970

Intellectual property rights have great importance in the growth of a country.

Intellectual property law is different in all countries. In many developed
countries, the strict enforcement of the IPR role has a huge contribution to
economic growth. IPR promotes innovation which leads to economic growth.
Nowadays every business in the world is the creation of Innovation. The current
era has realized the importance of IPR laws. It is not only innovation but also the
name which matters in today’s world. The name carries huge value in the form
of goodwill. Some companies just sell their name in exchange for a huge amount
of money. Intellectual Property rights have a great influence on the financial
improvement of a nation. The IPR can play both negative and positive growth in
economic development. This article analyses the role of Intellectual Property
rights in economic growth. This paper study the relationship between IPR and
the economy. The impact of IPR is positive as well as a negative impact on the
economy. It is very important to protect the interest and rights of people to
evolve in innovation and creation which is directly linked to the development
and growth of the country.
The Connection between Intellectual Property and Economy

The role of Intellectual property in the economy are:

• To provide exclusive rights to the and to protect the interest of the

creator and encourage investment in research and information creation;
• Forbid the competitors or anybody from exploiting or misuse the
property without the permission of the creator; and
• To create a market for that invention so that it could be given to g

18)Discuss the economic and labour justification of protection of intellectual

property rights

Tips for Protecting Intellectual Property

Protecting your intellectual property is a means to secure an economic

advantage for your business and make sure you can defend your unique ideas,
products, and services. The best way to protect IP is to register it with the
government and enforce your ownership rights.

Beyond registration and enforcement, you can protect certain types of

intellectual property by:

• Documenting your discoveries

• Using digital rights management
• Opting for strong nondisclosure agreements
• Creating strong access credentials
Read on for more on these tips to proactively protect intellectual property
before it's stolen or repurposed.

1. Document Your Discoveries

In the Information Age, leaks are frequent. While you can't always guard
against them, you can record your discoveries and innovations as they occur.

If another company obtains illicit information in a leak and attempts to

repurpose or recreate your ideas, your records can put a date to your
operations and prove your legitimacy (and your ownership rights) over your
intellectual property.

2. Use Digital Rights Management (DRM) Systems

If your work is published online and accessible to users, some of those users
may attempt to copy your property. Digital rights management (DRM)
protects your online assets with coding that does any, or multiple, of the
following:

• Limits the number of times or the window of time a user can access your
work
• Restricts the number of devices your work can be accessed with
• Prevents users from editing, saving, or copying your work
• Prohibits sharing, printing, or taking a screenshot of your work
• Watermarks your work to establish ownership

DRM is a type of encryption that limits what a user can do with your protected
work. This option is a common choice for gated online content like:

• Data studies and surveys

• Market reports
• E-books
• Software

With DRM, unauthorized use or reproduction of your online IP is much more

difficult, if not impossible.

3. Opt for Strong Nondisclosure Agreements

A nondisclosure agreement (NDA) restricts any involved party from sharing

information defined by the terms of the agreement.
Draft an NDA to strengthen your defenses against IPR violations like trade
secret misappropriation, where an employee could share sensitive IP-related
information with outsiders.

4. Create Strong Access Credentials

Guarding a secret requires proactive action, unless you're the only person who
knows the secret. Without adequate security around a trade secret, courts
won't be convinced that the secret was important enough to guard. Use strong
credentials to restrict access to any valuable information, especially relating to
intellectual property.

19)What are the patentable inventions? State those categories of inventions

which are not patentable?

Introduction:

According to Section 2(j) of the Indian Patents Act, 1970 an invention means "a
new product or process involving an inventive step and capable of industrial
application.", such invention protected under the patent law refers to patented

Innovation is an important criterion in determining the patent potential of an

invention. Under Section 2(l) of the Patent Act, a novelty or new Invention is
defined as “no invention or technology published in any document before the
date of filing of a patent application, anywhere in the country or the world”. The
complete specification, that is, the subject matter has not fallen into the public
domain or is not part of state of the art”.

(Section 3 of the (Indian) Patents Act, 1970

The following are not patentable in India:-

1. An invention, that is frivolous or that claims anything obviously contrary

to well established natural laws;
2. An invention, the primary or intended use of which would be contrary to
law or morality or injurious to public health;
3. The mere discovery of a scientific principle or the formulation of an
abstract theory;
4. The mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or apparatus
unless such known process results in a new product or employs at least
one new reactant;
 5. A substance obtained by a mere admixture resulting only in the
aggregation of the properties of the components thereof or a process
for producing such substance;
6. The mere arrangement or rearrangement or duplication of known
devices, each functioning independently of one another in a known way;
7. A method of agriculture or horticulture;
8. Inventions relating to atomic energy.
9. Any process for the medicinal, surgical, curative, prophylactic or other
treatment of human beings or animals.
10.Plants and animals in whole or any part thereof other than
microorganisms.
11.Mathematical or business method or a computer program per se or
algorithms.
12.literary, dramatic, musical or artistic works, cinematographic works,
television productions and any other aesthetic creations.
13.Mere scheme or rule or method of performing mental act or playing
game.
14.Presentation of information.
15.Topography of integrated circuits.
16.An invention which in effect, is traditional knowledge or is based on the
properties of traditional knowledge.

20)Define patent? Explain the procedure for applying and granting of

patents?

Introduction:
A patent for an invention is granted by government to the inventor, giving the
inventor the right to stop others, for a limited period, from making, using or
selling the invention without their permission.

A patent is an exclusive right granted for an invention, which is a product or a

process that provides, in general, a new way of doing something, or offers a
new technical solution to a problem. To get a patent, technical information
about the invention must be disclosed to the public in a patent application.

A Patent is a right granted to an inventor by the government which gives him

sole control over his invention and enables him to stop others from making,
using, selling, offering to sell, or importing his invention”. In return of such
exclusive right over the invention, the government asks the individual to disclose
its elementary technical idea behind the same.
In exchange of such disclosure, the inventor gets a Patent Registration and
enjoys Monopoly over the invention (in form of aforementioned exclusive
rights) for a limited period (generally 20 years). After the passage of such time,
the invention goes into public domain and becomes free for anyone to use.

21)Discuss the salient Features of Madrid convention

• The mark first should be registered at the national level in the
national or home country which is the country of origin. The first
registration is known as the ‘Basic registration’
• The International filing should be only through the office of origin to
the International bureau
• The country of origin should be a member state
• Central scrutiny feature of the Agreement.
• Complementary fees must be paid.
As every coin has two sides and the Madrid Agreement, despite having so many
advantages, has some defects in its structure. These defects are such as:

• One should register the mark in the home country before the
protection is awarded to the mark internationally
• There is a risk of “Central attack” [2] to the mark
• There is a very short examination period
• There is also a limitation on assignability

23)Which act constitute infringement Patent? Explain the remedies available

for infringement?
Introduction:
The Patents Act, 1970 empowers the patentee to file a suit in case there is an
infringement of his exclusive patent rights. In order to file a suit, the limitation
period as specified under the Limitation Act is 3 years within the infringement
of the patent rights. The burden of proof usually lies on the plaintiff to prove
that there was patent infringement by the defendant but in certain cases, it is at
the discretion of the court to decide the burden of proof. In India, both districts
and the high courts have the power to hear cases related to patent infringement.
However, in case there is a counterclaim for revocation of the patent filed by
the defendant, then only the High Court has the right to hear the case. The
patentee can file the case in the place of his residence or the place where he
carries out his business or where the cause of action arises. Section 48 of the
Indian Patents Act contains the rights of the patentees. It list down the following
activities as the infringement of the patentee’s rights:

1. Using
2. Making
3. Importing
4. Offering for sale
5. Selling the patented process
If the defendant is involved in any of the above-mentioned acts, then he will be
considered liable for infringement of the rights of the patentee. Section 108(1)
of the patents act, 1970 provides for relief to the plaintiff in case his patent rights
have been violated. The remedies available to the patentee are:

Temporary/Interlocutory Injunction

A temporary injunction is invoked by the court at the initial stages of the suit
filed by the plaintiff. This is passed in order to prevent the defendant from
getting further gains by using other patented products. In order to invoke a
temporary injunction, it is important for the patentee to prove that the patent
is valid and has been infringed by the defendant. Also, the subsequent
infringement in his patent rights has caused irreparable loss to him.

Permanent injunction

A permanent injunction is invoked when the case is finally decided by the court.
The interim injunction is transferred to a permanent injunction if the defendant
is found guilty of patent infringement rights. But if the defendant is absolved
from the liability, then the interim injunction stands dissolved and is not
converted into a permanent injunction.

Damages

In case the defendant is proven guilty, the plaintiff is either awarded damages
or an account of profits by the defendant. Damages may not be provided to the
plaintiff in case the defendant pleads ignorance and proves that he had no
reasonable grounds to believe that the said patent existed at the time of
infringement.

24)What is cybercrime? Explain the different categories of cyber crime?

A Cybercrime is a crime involving computers and networks.

The computer may have been used in the execution of a crime or it may be the
target.

Definition of Cyber Crime

Cybercrime may be defined as “Any unlawful act where computer or
communication device or computer network is used to commit or facilitate the
commission of a crime”.

Two Main Types of Cybercrimes

Most cybercrime falls under two main categories:

• Criminal activity that targets computers.

• Criminal activity that uses computers.

1.Child Pornography OR Child sexually abusive material (CSAM)

Child sexually abusive material (CSAM) refers to a material containing sexual
images in any form, of a child who is abused or sexually exploited. Section 67
(B) of the IT Act states that “it is punishable for publishing or transmitting of
material depicting children in the sexually explicit act, etc. in electronic form.

2. Cyber Bullying
A form of harassment or bullying inflicted through the use of electronic or
communication devices such as computers, mobile phones, laptops, etc.

3. Cyber Stalking
Cyberstalking is the use of electronic communication by a person to follow a
person, or attempts to contact a person to foster personal interaction
repeatedly despite a clear indication of disinterest by such person; or monitors
the internet, email or any other form of electronic communication commits
the offence of stalking.

4. Cyber Grooming
Cyber Grooming is when a person builds an online relationship with a young
person and tricks or pressures him/ her into doing a sexual act.

5. Online Job Fraud

Online Job Fraud is an attempt to defraud people who are in need of
employment by giving them false hope/ promise of better employment with
higher wages.

6. Online Sextortion
Online Sextortion occurs when someone threatens to distribute private and
sensitive material using an electronic medium if he/ she doesn’t provide
images of a sexual nature, sexual favours, or money.

7. Phishing
Phishing is a type of fraud that involves stealing personal information such as
Customer ID, IPIN, Credit/Debit Card number, Card expiry date, CVV number,
etc. through emails that appear to be from a legitimate source.

8. Vishing
Vishing is an attempt where fraudsters try to seek personal information like
Customer ID, Net Banking password, ATM PIN, OTP, Card expiry date, CVV etc.
through a phone call.

9. Smishing
Smishing is a type of fraud that uses mobile phone text messages to lure
victims into calling back on a fraudulent phone number, visiting fraudulent
websites or downloading malicious content via phone or web.
10. Sexting
Sexting is an act of sending sexually explicit digital images, videos, text
messages, or emails, usually by cell phone.

11. SIM Swap Scam

SIM Swap Scam occurs when fraudsters manage to get a new SIM card issued
against a registered mobile number fraudulently through the mobile service
provider. With the help of this new SIM card, they get One Time Password
(OTP) and alerts, required for making financial transactions through the
victim’s bank account. Getting a new SIM card against a registered mobile
number fraudulently is known as SIM Swap.

12. Credit Card Fraud or Debit Card Fraud

Credit card (or debit card) fraud involves the unauthorized use of another’s
credit or debit card information for the purpose of purchases or withdrawing
funds from it.

13. Impersonation and identity theft

Impersonation and identity theft is an act of fraudulently or dishonestly
making use of the electronic signature, password or any other unique
identification feature of any other person.

14. Spamming
Spamming occurs when someone receives an unsolicited commercial message
sent via email, SMS, MMS and any other similar electronic messaging media.
They may try to persuade the recipient to buy a product or service, or visit a
website where he can make purchases, or they may attempt to trick him/ her
into divulging bank account or credit card details.

15. Ransomware
Ransomware is a type of computer malware that encrypts the files, storage
media on communication devices like desktops, Laptops, Mobile phones etc.,
holding data/information as a hostage. The victim is asked to pay the
demanded ransom to get his device decrypts
16. Viruses, Worms, and Trojans
A computer virus is a program written to enter your computer and
damage/alter your files/data and replicate itself.

Worms are malicious programs that make copies of themselves again and
again on the local drive, network shares, etc.

A Trojan horse is not a virus. It is a destructive program that looks like a

genuine application. Unlike viruses, Trojan horses do not replicate themselves
but they can be just as destructive. Trojans open a backdoor entry to your
computer which gives malicious users/programs access to your system,
allowing confidential and personal information to be theft.

17. Data Breach

A data breach is an incident in which information is accessed without
authorization.

18. Denial of Services (DoS) attack

A denial of Services (DoS) attack is an attack intended for denying access to
computer resources without the permission of the owner or any other person
who is in charge of a computer, computer system or computer network.

A Distributed Denial of Service (DDoS) attack is an attempt to make an online

service unavailable by overwhelming it with traffic from multiple sources.

19. Website Defacement

Website Defacement is an attack intended to change the visual appearance of
a website and/ or make it dysfunctional. The attacker may post indecent,
hostile and obscene images, messages, videos, etc.

20. Cyber-Squatting
Cyber-Squatting is an act of registering, trafficking in or using a domain name
with an intent to profit from the goodwill of a trademark belonging to someone
else.
25)Intellectual property is a valuable asset which may be exploited in a
number of ways Explain?
Introduction
There is increasing awareness of intellectual property rights, both
commercially (e.g. through the recognition that innovation and design can
create specific demand, influence consumer preference and generate ongoing
product/brand loyalty) and legally (including the ability to secure monopoly
use rights for inventions or unique works, and through registration and
enforcement of statutory rights).

Identify and secure the intellectual property

The first step - and it is a critical one - is to identify the IP that will (or might)
arise in the course of the venture, and to assess how that IP is to be defined
and protected, used for commercial gain, and then (in most cases) transferred
- whether by sale or license - for gain on exit.

Ownership structure
It is similarly important to get ownership and trading structures ‘right' from
day one. For example, the costs incurred in seeking to recover/preserve key IP
when post-trading disputes arise with business partners (including
opportunistic profiteering) will greatly exceed the set-up costs foregone.
Indeed, proper structures can prevent the motivation for such disputes arising
at all.

Commercial Strategy
The strategy for making commercial gain from IP will vary depending on the
specific circumstances, including:

• The product/industry type;

• Market dynamics and entry/exit barriers;
• Capital requirements and sources;
• Risk appetite;
• Immediate/long term objectives, notably exit strategy;
• Revenue streams and costs;
• Tax implications (including transfer pricing for cross-border
ventures);
In most commercial IP structures, key issues between business partners (apart
from monetary commitments) will include:

(a) Exclusivity;
(b) Territory;
(c) Marketing (eg the duty to generate demand/turnover in the territory);
(d) Financial reporting and data availability (including audit rights);
(e) Duration and termination;
(f) IP registration/filing/protection obligations and costs;
(g) Performance obligations;
(h) IP warranties and indemnities (if any);
(i) Quality standards;
(j) Representations to consumers;
(k) Relative contributions to the business model;

Branding
Much has been written about the success of design-led businesses, particularly
in New Zealand where our geographic isolation and exclusion from dominant
global trade blocs increase the importance of product differentiation and
reputation.

International Considerations
There are important differences in the way various countries treat IP, from
recognition of differing rights, to varying registration regimes/requirements.
Various other strategic and cross border issues (commercial and legal) will be
relevant also.

Market Intelligence
A key part of a successful strategy to exploit IP is analysing the intended
market(s), and adopting appropriate structures, product offerings and partner
relationships to succeed.

26)What are the rights and obligations of Patentee?

The elaborated Rights of Patentee in India are as follows:

Right to exploit the Patent
When the new invention is a product, the Patentee has the exclusive rights to
use, make, import, or sell for these purposes related to an invention in India. On
the other hand, when the invention of the inventor is a procedure or process of
manufacturing of any article or substance, the right to exploit means the
exclusive right exercise or use the procedure or method in the territory of India.

Right to Grant License

The Patentee of a Patent is given the right to grant license or transfer rights or
enter into some arrangement for some consideration. The assignment or license
to be valid and legitimate it is required to be in writing and should be registered
with the Controller of Patent. Unless a document of assignment of a Patent is
not registered, it is not admitted as evidence of title of the Patent, and such a
rule is applicable to the assignee, not the assignor. (As per Section 69(5) of the
Patent Act, 1970)

Right to Surrender
By giving notice in the prescribed manner, the Patentee of a Patent has the right
to surrender a Patent at any time and at his/her own discretion. The
advertisement for such an offer of surrender is required to be done in the
Journal. The publication is done to give an opportunity to the people to oppose
the offer of surrender of the Patentee. This is done when the Patentee
apprehends his/her non-performance of the Patent in the future and upon
which he/she decides to surrender the Patent.
Right to sue for Infringement
The Patentee has the right to sue for Infringement of Patent in District Court has
the jurisdiction to try the suit.

Right to Use and Enjoy Patent

The Patentee of the Patent has the exclusive right to exercise, make, utilize,
convey or offer or the patented substance or article in India or to practice or
utilize or the process or techniques associated with the invention. Such rights
can be exercised either by the Patentee himself/herself or by his/her licensees
or agents.

Obligations:

Once a Patent is granted to a Patentee, there are certain Rights and Obligations
of Patentee. The Obligations of Patentee are as follows:

Duty to Disclose
Sec 8 of the Patent Act, 1970[1], accomplishes the obligation to disclose of the
Patentee. Section 8(1) of the Patent Act, 1970, tells that the Patentee has an
obligation to disclose all required data related to the remote uses of
comparative or same invention documented by him/her or through him/her or
through someone by him/her at the time of applying or within 6 months of
applying.
The Patentee of a Patent is required to record an announcement of all the listed
particulars viewing the applications and, in addition to the above, an endeavor
to disclose all the points of interest of any subsequent applications that might
be documented at the future stages.

Section 8(2) of the Patent Act, 1970, puts an obligation on the Patentee to
provide all the data required by the Controller of Patent with regards to the
relating of any remote applications at whatever point demand is made by the
Controller of Patents within a time period of 6 months of such a demand by the
Controller of Patent. The first part of the obligation of Patentee begins when a
man records an application of Patent. On the other hand, the second part begins
after a demand is made by the Controller of Patents under the Patents Act,
1970.

Duty to Request for Examination

Not like other Intellectual Property Rights, the Registration process of
Registration of Patent does not accommodate any kind of programmed
examination of the grant of Patent application. In the procedure above
mentioned, as indicated by Section 11(B) of the Patents Act, 1970, the obligation
is thrown on the Patentee himself/herself to ask for the Controller of Patents to
look at the growth or development connected for Patent.

Duty to Respond to Objections

The Controller of Patent before accepting the examination request passes it to
the analyst who looks at the growth and gives a report to the Controller of
Patent known as the First Examination Report (FER). On certain cases there may
be some protests which will be brought up in the First Examination Report, it is
the right of Patentee to reply to such opposition complaints and consent to the
corresponding within a time period of a year of the issuance of the First
Examination Report (FER) falling which the application of the Patentee will be
considered to be surrendered by the Controller of Patent.

Duty to clear all Objections

It is the obligation of the owner of the Patent to respond to the raised objections
as well as to clear and remove each one of the raised objections and, in addition,
certain oppositions raised against his/her invention. In the event that the
Controller of Patent has not fulfilled he/she, it may also require a meeting also.
Furthermore, it is the obligation of the owner of Patent to go for a consultation
and clear all the objections and, in addition, oppositions, if are raised any,
against the invention of the inventor.
Duty to Pay Statutory Fees
The Patentee has an obligation to pay all the statutory expenses required to get
a grant of a Patent in the process of Registration without failure generally,
his/her application for the grant of Patent won’t be managed. Sec 142 of the
Patent Act, 1970, accomplishes the provisions recognized with payment of
charges and, in addition, the consequences for non-payment of such prescribed
fees.

After this process is imitated to and the Patentee of Patent clears every one of
the restrictions and protests raised against his/her invention, if the Controller of
Patent is fulfilled, he/she will grant a Patent to the invention and publishes it in
the Journal, or generally, the Controller rejects such a Patent.

27)What are the powers and functions of the controller under information
technology act 2000?

Section 18 of IT act 2000The Controller may additionally carry out all or any of
the following functions:

1) Supervises the activities of Certifying Authorities.

2) Certifies public keys of the Certifying Authorities.

3) Drafts the requirements to be maintained by way of Certifying Authorities.

4) Specifies the qualifications and revel in of employees of the Certifying

Authorities.

5) Specifies the situations below which the Certifying Authority shall conduct
their business;

6) Specifies the contents of written, revealed or visual materials and

commercials that may be distributed or utilized in a Digital Signature Certificate
and the general public key;

7) Specifies the format and content of a Digital Signature Certificate and the
important thing;

8) Specifies the layout wherein Certifying Authorities shall keep the bills.
9) Specifies the terms and situations for the appointment of the auditors and
their remuneration.

10) Helps the Certifying Authorities in organizing any digital machine and law of
such gadget.

11) Specifies the way wherein the Certifying Authorities shall address the
subscribers.

12) Resolves any warfare that arises between the Certifying Authorities and the
subscribers;

13) Lays down the duties of the Certifying Authorities;

14) Maintains a database containing the disclosure record of ever Certifying

Authority.

15) Maintains the database of public keys in a way that it is available to the
general public.

16) Issues the license to issue the Digital Signature Certificate.

17) Can suspend the license if he isn’t pleased with the validity of the applicant.

28.What are the factors responsible for the growth of patent law explain?
Factors responsible for the growth of patent law
The world patent has been coined from a Latin word patent- meaning open. A
patent is a document issued by government to the inventor granting permission
to exclusively make, use and sell on disclosure of the invention for a definite
period of time. Unlike patents, monopoly existed where inventions were not
disclosed and exclusively sold.

In the Indian context, in 1856, the Act VI on protection of inventions based on

the British Patent Law of 1852 was established. During this period certain
privileges were granted to inventors of new manufacturers for a period of 14
year. In 1859, the act was modified as Act XV in which making, selling, using of
inventions in India and authorizing others to do so for 14 year from the date of
filing the specification. In 1872, the act was re-named as The Patents and
Design Protection Act, in 1883 as The Protection of Inventions Act, in 1888
consolidated as The Inventions and Designs Act and in 1911 as The Indian
Patents and Designs Act.

It was under GATT, the biggest advancement in international trade liberalization

have come in to existence through multilateral trade negotiations. The role4 of
GATT is to provide a stable and predictable international trade system. Secondly,
it acts as a mediator in settling the disputes between countries regarding trade.
Thirdly, it holds frequent negotiations, encourages reductions in tariffs so that
expansion in world trade becomes possible. The objective of India signing the
GATT agreement is to export indigenous products and in turn purchase oil,
industrial raw materials, machines, new technology and other things that are
domestically needed. During 1950s and 1960s, continuous reductions of tariffs
led to high rate of world trade growth. Thus in the GATT era, trade liberalization
helped in trade growth consistently instead production growth.

Medicines required for human cure were not easily obtained to the public in
India. The major source of these medicines was from foreign countries. The lack
of indigenous medicines and their huge demand led to very high prices. It was
the external law that influenced the local law. Drug prices in India were amongst
the highest in the world. In 1957, the Indian Government appointed Justice
Rajagopala Ayyangar committee to revise the patent law to comply with the
then, industrial needs. The report suggested for a process patenting so that the
medicines reach even the poor sections of the society. The government vested
the Patents Act in 1970. This revolutionized the economic system in India by
providing the medicine at a low price.

One should review the Patents Act, 1970 and understand how different aspects
of intellectual property were considered at that moment. Section 3, 5 of the
Patents Act, 1970 mentions inventions that are frivolous, obvious, exploiting
commercially to public, immoral, prejudice to human, animal, plant life or health
or to the environment, scientific principles, abstract theories, identified to
possess new use for a known substance, known process, known machine or
known apparatus, aggregation of the properties by admixture and process for
production of such substances, arrangement or re-arrangement or duplication
of known devices, methods of agriculture, horticulture, processes for the
medicinal, surgical, curative, prophylactic or other treatment of human beings,
animals to render them free of disease or to increase their economic value or
that of their products, a mathematical or business method or a computer
programme per se or algorithms, literary, dramatic, musical, artistic work,
cinematographic works, television productions, rule or method of performing
mental act, method of playing game, presentation of information, topography
of integrated circuits, aggregation or duplication of known properties of a
traditional knowledge, atomic energy, claiming substance intended for use, or
capable of being used, as food or as medicine or drug, or substances prepared
or produced by chemical processes are not patentable.

29.Briefly discuss the salient features of geographical indications of goods

(Registration and protection act) 1999.
Introduction
Geographical indications (GIs) are marks, signs or symbols which indicate that
the associated goods:

• originate from a specific geographical area or country;

• are produced using traditional knowledge or processes stemming from a
specific geographical area of a country; and
• bear distinctive characteristics, qualities and reputations that are
attributable to a specific geographical area or country.

Many countries have adopted GI laws to protect indigenous products,

including handicrafts and agricultural, natural, horticultural and industrial
products originating from a specific region.
On 27 March 2020, after revisions and much deliberation, Parliament finally
passed the Geographical Indications (Registration and Protection) Act 2020 in
order to establish a system for the recognition, registration and protection of
GI rights in Pakistan.
Geographical Indications (Registration and Protection) Act 2020
The act's salient features are as follows:

• Its main purpose is to provide:

o statutory protection to GIs in consideration of the public interest,
economic reforms and Pakistan's least developed areas; and
o legal means for interested parties to prevent third party use of a
designation or presentation of goods that indicates or suggests
that the goods in question originate from a geographical area or
constitute an act of unfair competition under the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS
Agreement).
• Under the act, GIs can be registered by a natural or legal person,
government organisation or statutory body, association or group of
producers or producer organisation or operator with an interest in the
registration.
• The definition of 'geographical indication' covers agricultural goods,
natural goods or manufactured or produced goods of a particular
territory, region or locality of certain quality, reputation or other
characteristic of the goods or ingredients or components essentially
attributable to its geographical origin. Further, GIs for manufactured
goods cover activities relating to the production, processing or
preparation of the goods in a specific territory.
• The act establishes the Geographical Indications Registry, which will be
managed and controlled by the Intellectual Property Organisation of
Pakistan (IPO). The IPO Trademarks Registry and its branches established
under the Trademarks Ordinance 2001 will carry out functions of the
Geographical Indications Registry and its branches until a separate GI
registry is established.
• GI registration for any or all goods in a definite geographical territory
covers classes of goods listed under the international classification of
goods for the purposes of GI registration.
• GI registration is prohibited where a mark:
o would contravene the definition of 'geographical indication' under
the act;
o would likely cause deception or confusion;
o cannot be protected or protection has ceased or it is no longer
used in the country of origin;
o is considered a generic name or an indication; or
o is unregistrable on moral or public policy grounds.
• The act also considers homonymous GIs, which are spelled or
pronounced similarly but which identify products originating from
different places, usually in different countries. In principle, these
indications should coexist, but such coexistence may be subject to
certain conditions.
• A homonymous GI can be registered provided that:
o the registrar is satisfied that it is different from other
homonymous GIs;
 o producers of the associated goods will be treated equally; and
o consumers will not be confused or misled.
• A foreign GI registered in the country of origin can be registered in
Pakistan if it has not ceased to be protected in its country of origin.
• The Federal Government will be the exclusive owner of all GIs in
Pakistan and may allow other responsible statutory bodies, public
bodies, local or provincial administrations, government enterprises or
any governmental organisations to register a GI in their name. Further,
registrants may allow producers and operators to use and apply to the
registry for obtaining registration as authorised users.
• GI registration applications must include:
o the GI mark;
o the class of goods and area to which the GI applies;
o the country of origin;
o producer or operator statements; and
o details of the quality, specifications and characteristics of the
associated goods.
• GI registration is granted subject to confirmation of products seeking GI
registration by the designated certification body and the registrar's
examination and acceptance thereof.
• A party may, with the registrant's consent, apply for registration as an
authorised user of a GI. Subject to examination and public notification
for opposition purposes and fulfilling certain conditions, an authorised
user registration may be granted by the registrar.
• A division for regulatory mechanism will monitor and inspect GI products
to ensure compliance with the book of specifications (ie, a document
completed by the applicant which specifies the GI goods' geographical
area, production standards or product specifications and qualification
process).
• GI registrations which are ongoing and authorised generally last for 10
years and can be renewed.
• Authorised users have the exclusive right to use a GI and prevent others
from using it.
• Use of a registered GI is subject to compliance with product
specifications and includes applying the GI to products, packaging,
advertising materials and any other document relating thereto.
• The registry's GI certification comprises the National Geographical
Indication logo along with the registered name of the GI product.
• Registered GI infringement includes:
o use of an identical or deceptively and confusingly similar mark;
o falsely indicating a country of origin; or
o non-compliance with the book of specification, as recorded in the
registration.
• Registered GI infringement does not include:
o use in good faith or to indicate the intended purpose of goods;
o use of a person's name or the name of a place of business or its
predecessors that is unlikely to confuse or otherwise interfere
with an existing GI; and
o use in comparative advertising.
• In an infringement action, all such relief by way of damages, injunctions,
accounts or otherwise will be available to the holder or registrant and
the authorised user of the GI as is available in respect of the
infringement of any other property right. Further, the rights of action
against any party for passing off goods as the goods of another party or
the remedies in respect thereof remain unaffected.
• Suit for infringement of a GI or any other GI right can be instituted only
in the IP Tribunal.
• Any interested party or group of producers or consumers that seeks to
prevent infringement of a registered GI may institute proceedings before
the IP Tribunal; however, no proceedings can be instituted for an
unregistered mark to recover damages by any other party.
• Use of a GI by a party either without the consent of the GIs registrant or
an authorised user thereof or which falsely represents an unregistered
GI as registered is punishable with imprisonment and a fine.
• An authorised user's GI rights cannot be subject to assignment,
transmission, licensing, pledge, mortgage, licensing or any similar
agreement of the registered GI. However, if an authorised user dies,
their GI right will devolve to their successor in title.
 • An application to rectify a GI registration may be filed by any party
having interest in an error or omission in the register. The registrant may
file an application to amend, correct or cancel the registration of an
authorised user for failing to observe the applicable conditions and
restrictions.
• An appeal against any decision of the registrar will lie before the
relevant high court with jurisdiction.

30.Explain Internet policy of Government of India.

Introduction:
Currently, India's most comprehensive legal provisions that speak to privacy on
the internet can be found in the Information Technology Act (ITA) 2000. The ITA
contains a number of provisions that can, in some cases, safeguard online
privacy, or in other cases, dilute online privacy. Provisions that clearly protect
user privacy include: penalizing child pornography, penalizing, hacking and
fraud and defining data protection standards for body corporate.
Provisions that serve to dilute user privacy speak to access by law enforcement
to user's personal information stored by body corporate collection and
monitoring of internet traffic data and real time monitoring, interception, and
decryption of online communications. Additionally, legislative gaps in the ITA
serve to weaken the privacy of online users. For example, the ITA does not
address questions and circumstances like the evidentiary status of social media
content in India, merging and sharing of data across databases, whether
individuals can transmit images of their own “private areas” across the internet,
if users have the right to be notified of the presence of cookies and do-not track
options, the use of electronic personal identifiers across data bases, and if
individuals have the right to request service providers to take down and delete
their personal content.

Online Data Protection

Since 2010, there has been an increasing recognition by both the government
and the public that India needs privacy legislation, specifically one that
addresses the collection, processing, and use of personal data. The push for
adequate data protection standards in India has come both from industry and
industrial bodies like DSCI – who regard strong data protection standards as an
integral part of business, and from the public, who has voiced increasing
concerns that governmental projects, such as the UID, involved with collecting,
processing, and using personal data are presently not adequately regulated and
are collecting and processing data in such a way that abuses individual
privacy. As mentioned above, India's most comprehensive data protection
standards are found in the ITA and are known as the Information Technology
“Reasonable security practices and procedures and sensitive personal data or
information” Rules 2011.
The Rules seek to provide rights to the individual with regards to their
information and obligate body corporate to take steps towards protecting the
privacy of consumer's information. Among other things, the Rules define
“sensitive personal information' and require that any corporate body must
publish an online privacy policy, provide individuals with the right to access and
correct their information, obtain consent before disclosing sensitive personal
information ' except in the case of law enforcement, provide individuals the
ability to withdraw consent, establish a grievance officer, require companies to
ensure equivalent levels of protection when transferring information, and put in
place reasonable security practices. Though the Rules are the strongest form of
data protection in India, they have not been recognized by the European Union
as meeting the EU standards of “data secure” and many gaps still exist. For
example, the Rules apply only to:

• Body corporate and not to the government

• Electronically generated and transmitted information
• A limited scope of sensitive personal information.
• A body corporate when a contractual agreement is not already in
place.

These gaps leave a number of bodies unregulated and types of information

unprotected, and limits the scope of the Rules. It is also unclear to what extent
companies are adhering to these Rules, and if they are applying the Rules only
to the use of their website or if they are also applying the Rules to their core
business practices.
31.Write a note on Copyright in micro software.
Introduction:
In the 1970s and 1980s, there were extensive discussions on whether the
patent system, the copyright system, or a sui generis system, should provide
protection for computer software.
These discussions resulted in the generally accepted principle that computer
programs should be protected by copyright, whereas apparatus using
computer software or software-related inventions should be protected by
patent.
Copyright law and patent law provide different types of protection. Copyright
protection extends only to expressions, and not to ideas, procedures, methods
of operation or mathematical concepts as such, whereas a patent is an
exclusive right granted for an invention, which is a product or a process that
provides a new way of doing something, or offers a new technical solution to a
problem.

Copyright protection is formality-free in countries party to the Berne

Convention for the Protection of Literary and Artistic Works (the Berne
Convention), which means that protection does not depend on compliance
with any formalities such as registration or deposit of copies.
A patent is generally granted after completing an examination procedure by a
government agency. Copyright protection of computer software is established
in most countries and harmonized by international treaties to that effect.

The law relating to the patentability of software is still not harmonized

internationally, but some countries have embraced the patentability of
computer software and others have adopted approaches that recognize
inventions assisted by computer software.

32.Briefly discuss the salient features of information technology act 2000.

Features of the Information Technology Act, 2000

a. All electronic contracts made through secure electronic channels are

legally valid.
b. Legal recognition for digital signatures.
c. Security measures for electronic records and also digital signatures
are in place
d. A procedure for the appointment of adjudicating officers for holding
inquiries under the Act is finalized
e. Provision for establishing a Cyber Regulatory Appellant Tribunal
under the Act. Further, this tribunal will handle all appeals made
against the order of the Controller or Adjudicating Officer.
f. An appeal against the order of the Cyber Appellant Tribunal is
possible only in the High Court
g. Digital Signatures will use an asymmetric cryptosystem and also a
hash function
 h. Provision for the appointment of the Controller of Certifying
Authorities (CCA) to license and regulate the working of Certifying
Authorities. The Controller to act as a repository of all digital
signatures.
i. The Act applies to offences or contraventions committed outside
India
j. Senior police officers and other officers can enter any public place
and search and arrest without warrant
k. Provisions for the constitution of a Cyber Regulations Advisory
Committee to advise the Central Government and Controller.
Applicability and Non-Applicability of the Act
Applicability

According to Section 1 (2), the Act extends to the entire country, which also
includes Jammu and Kashmir. In order to include Jammu and Kashmir, the Act
uses Article 253 of the constitution. Further, it does not take citizenship into
account and provides extra-territorial jurisdiction.

Section 1 (2) along with Section 75, specifies that the Act is applicable to any
offence or contravention committed outside India as well. If the conduct of
person constituting the offence involves a computer or a computerized system
or network located in India, then irrespective of his/her nationality, the person is
punishable under the Act.

Lack of international cooperation is the only limitation of this provision.

Non-Applicability

According to Section 1 (4) of the Information Technology Act, 2000, the Act is not
applicable to the following documents:

1. Execution of Negotiable Instrument under Negotiable Instruments

Act, 1881, except cheques.
2. Execution of a Power of Attorney under the Powers of Attorney Act,
1882.
 3. Creation of Trust under the Indian Trust Act, 1882.
4. Execution of a Will under the Indian Succession Act, 1925 including
any other testamentary disposition
by whatever name called.
5. Entering into a contract for the sale of conveyance of immovable
property or any interest in such property.
6. Any such class of documents or transactions as may be notified by
the Central Government in the Gazette.

33.Examine in detail the procedure for the registration of a geographical

indications of goods (Registration and protection) Act, 1999.
Refer Q.No.08
34.Explain the grounds for revocation of patent.
Introduction:
The term “Revocation” means Cancellation of the patent rights acquired to
patentee. The revocation of patent can be applied by making a petition by any
person interested or it can be also applied by the Central Government. In most
of the cases revocation are filed on a counter claim against patent
infringement suits in High Court or in IPAB (the Intellectual Property Appellate
Board). The provision for Revocation of patents is mentioned under section
104.

Section 104 of the Patents Act, 1970 states that only IPAB or the High Court
can be approached for revocation as no suit of infringement can be brought
before a court inferior to the District Court having jurisdiction.

Section 64: Grounds for Revocation

Principally, Section 64 contains in-exhaustive grounds that dictate the

conditions that warrant the revocation of patents. These grounds are
following:

1. Invention is obvious, lacks an inventive step or utility

2. Invention isn’t new and, has been publicly used or published in India
before the priority date or it is foreseen in light of the knowledge
available within any local or native community in India or elsewhere.
 3. Either the party wasn’t entitled to the patent, or the subject isn’t
patentable or doesn’t amount to invention
4. The scope of patent specifications is incomplete or the specifications
have either been already claimed in a patent that is granted
5. The patent was wrongfully obtained in violation of another party’s
rights, such as through incorrect or false representation, or leave to
modify specifications was obtained through fraudulent means
6. The information that has been disclosed under Section 8 is known to be
false by the Applicant or he has been unable to furnish the required
details
7. Complete specification omits or erroneously attributes geographical
origin or biological matter used in the invention
8. The invention was either secretly used before the date or claim or the
Applicant contravened secrecy instructions under Section 35
9. The complete specification neither describes the invention and method
sufficiently nor does it disclose the best method of performing it which
was known and entitled protection.

Other provisions for revocation of patents

A revocation petition can be filed undersection 65 if the patent granted relates

to atomic energy.

If the Central Government find the facts that a granted patent has been
exercising by wrong means and it is mischievous to the State or prejudicial to
the public, the central government has rights in the case to revoke the
concerned patent and such decision is also published in official journal of
patents.

Moreover, to prevent the wastage of judicial machinery, it was laid down by

the Supreme Court in the Enercon (India) Ltd and Ors. v. Enercon Gmbh, that
post grant opposition proceedings and petitions or counter-claims of
revocation against the same patent, cannot be simultaneously instituted.
Frivolous litigation shouldn’t be encouraged as it is viewed as a tool for cash-
rich litigants with dishonest interests.

Revocation of patent under Section 85 of the Patents Act

An application for revocation of patent can be filed after 2 years of grant of

compulsory license. The grounds for revocation of a patent are same which
are covered under Section 85 which mainly deal with following:-
 • reasonable price,
• availability in the territory of India, and
• requirements of the public not met.

Section 85 reveals provision in the benefit of public. In these cases where the
patentee does not take necessary actions that may help in better distribution
of the product to the public and more profound availability at reasonable
prices. Such revocations of patent are really useful to public.

35.Write a note on Transfer of patent rights.

Introduction
Once a patent for an invention is granted, it is important to consider (1) if the
patentee/proprietor of the patent is going to manufacture, market, sell and/or
distribute the invention, (2) whether the patentee/proprietor of the patent is
going to sell all rights in his/her invention to someone else for a sum of money,
or (3) if the patentee/proprietor of the patent will license someone else to
produce and bring the patented product to market under specified terms by
the Patentee that must be met for the licensee. This article discusses how one
may effect, use or monetize the patented invention.

Forms/Nature of Transfer of Patent Rights:

Grant of a Patent confers to a patentee the right to prevent others from
making, using, exercising or selling the invention without his permission. The
following are the ways in which a patentee can deal with the patent:

1. Assignment
2. Licenses
3. Transmission of patent by operation of law

1. Assignment
The term 'assignment' is not defined in the Indian Patents Act. Assignment is
an act by which the patentee assigns whole or part of his patent rights to the
assignee who acquires the right to prevent others from making, using,
exercising or vending the invention. There are three kinds of assignments

• Legal Assignment
• Equitable Assignment
• Mortgage

Legal Assignment: An assignment (or an agreement to assign) of an existing

patent is a legal assignment, where the assignee may enter his name as the
patent owner. A patent which is created by deed can only be assigned by a
deed. A legal assignee entitled as the proprietor of the patent acquires all
rights thereof.

Equitable Assignments: Any agreement including a letter in which the

patentee agrees to give a certain defined share of the patent to another
person is an equitable assignment of the patent. However, an assignee in such
a case cannot have his name entered in the register as the proprietor of
patent. But the assignee may have notice of his interest in the patent entered
in the register.

Mortgages: A mortgage is an agreement in which the patent rights are wholly

or partly transferred to assignee in return for a sum of money. Once the
assignor repays the sum to the assignee, the patent rights are restored to
assignor/patentee. The person in whose favour a mortgage is made is not
entitled to have his name entered in the register as the proprietor, but he can
get his name entered in the register as mortgagee.

2. Licenses:

The Patents Act allows a patentee to grant a License by the way of agreement
under section 70 of the Act. A patentee by the way of granting a license may
permit a licensee to make, use, or exercise the invention. A license granted is
not valid unless it is in writing. The license is contract signed by the licensor
and the licensee in writing and the terms agreed upon by them including the
payment of royalties at a rate mentioned for all articles made under the
patent. Licenses are of the following types,

• Voluntary License
• Statutory License(such as compulsory License)
• Exclusive/Limited License
• Express/Implied License

Voluntary licenses:
It is the license given to any other person to make, use and sell the patented
article as agreed upon the terms of license in writing. Since it is a voluntary
license, the Controller and the Central government do not have any role to
play. The terms and conditions of such agreement are mutually agreed upon
by the licensor and licensee. In case of any disagreement, the licensor can
cancel the licensing agreement.
Statutory licenses:
Statutory licenses are granted by central government by empowering a third
party to make/use the patented article without the consent of the patent
holder in view of public interest. Classic example of such statutory licenses is
compulsory licenses. Compulsory licenses are generally defined
as "authorizations permitting a third party to make, use, or sell a patented
invention without the patent owner's consent3.

36.Explain the grounds for refusal of registration of a trade mark.

Absolute Grounds for Refusal of Registration
Section 9 of the Trade Marks Act, 1999 lays down the absolute grounds for
refusal of registration. The absolute grounds for refusal of registration of a
trademark is related to public policy. The legislative intent behind this provision
is to protect the legitimate interest of the traders as well as the public who are
genuine and bona fide users of various marks in the form of signs, symbols,
logos, words, etc. which have been acquired by them in relation to their
goods/services.

A trademark shall not be registered on the following grounds2:

• the mark lacks any distinctive character;
• the mark designates the kind, quality, intended purpose, values,
geographical origin or the time of production of the goods or
services rendered;
• the mark has become customary in the current language or in the
bonafide and established practices of the trade;
• the mark deceives the public or causes confusion;
• the mark is likely to hurt the religious sensitivities of any class or
section;
• it comprises scandalous or obscene matter;
• The Emblems and Names (Prevention of Improper Use) Act, 1950
prohibits its use;
• if the mark exclusively consists of the shape of goods which results
from the nature of the goods themselves;
• it exclusively consists of the shape of goods which is necessary to
obtain a technical result;
• the shape gives substantial value to the goods.
However, a trademark has acquired a “distinctive character” as a consequence
of its use or is a “well-known trademark”, prior to the date of application for
registration, the trademark shall not be refused for registration. The distinctive
character which allows one to distinguish the goods/services of one person from
others may be inherent or acquired. Therefore, it is crucial to have regard to the
inherent features of the trademark which makes it possible to distinguish the
goods/services of one from another.

In Hindustan Development Corp. v Deputy Registrar of Trade Marks3, the issue

involved was centred around the word “Rasoi” and whether it could be
registered as a trademark for hydrogenated groundnut oil or not. It was held
that the grammatical significance of a mark does not refer to the quality of
goods, instead, it must be construed from the point of view of the public at large.
Thus, to the general public, the word “rasoi” means cooking. The use of
groundnut oil that is hydrogenated is for the purpose of cooking, which in turn
forms a part of its character. Therefore, the word “rasoi” has a direct reference
to the “character” of goods.
Furthermore, even if the word “rasoi” did not directly impute the good’s
character or quality, the word must be “distinctive” for it to be registrable. This
distinctiveness must indicate that the goods for which the mark is used are the
goods of the proprietor and is capable of distinguishing the goods of the
proprietor from those of others. Moreover, even if the word “rasoi” is distinctive
it cannot be registered because it is a common word and no one can exclusively
use such words and deprive others of using the common words of a language
which are public property. Therefore, in the instant case, the word “rasoi” could
not be registered as it lacked distinctiveness associated with the applicant’s
goods.

Similarly in Geep Flashlight Industries v Registrar of Trade Marks4, the word

“Janta ” used for electric torches was sought for registration. The Registrar
refused registration on the ground that it was neither distinctive nor had the
capability to distinguish the product of the applicant from those of others. The
word “Janta” is a common word and indicative of the fact that the goods are not
expensive and meant for the common man thereby referring to the quality or
character of the goods. In J R Kapoor v Micronix India5 the Supreme Court held
that the word “micro” used for the production of electronic goods was
descriptive of microtechnology and thus no one could claim exclusive use of it.
Relative Grounds for Refusal of Registration
Section 11 of the Trade Marks Act, 1999 lays down the relative grounds for
refusal of registration. The legislative intent of this provision is to protect the
interest of the owners of registered trademarks.

• Section 11(1) provides that where the public is likely to get confused
on account of a mark being identical or similar to an earlier
trademark and a subsequent mark for certain goods/services is
 identical or similar to the goods/services represented by an earlier
mark, such a mark shall not be registered. Therefore, if the
subsequent mark is associated with the public to an earlier mark it is
likely that such similarity between the marks is sufficient to cause
confusion and thus bring it within the scope of Section 11(1).
However, where the goods/services are identical there is no need to
prove confusion. But the similarity between an earlier and a
subsequent trademark and where the goods/services are similar or
identical the likelihood of confusion must be proved.
In Toshiba Appliances Co. v Kabushiki Kaisha Toshiba6 the applicant’s mark
‘TOSIBA’ which was applied for registration had a close resemblance to the
opponent’s trademark ‘TOSHIBA’ which was used in respect of electronic goods.
This resemblance in the two marks was likely to confuse or deceive the users.
The court in the instant case held that the applicant’s mark ‘TOSHIBA’ was
deceptively similar to the opponent’s mark ‘TOSHIBA’. There was a phonetic
similarity between the two marks.
There are certain essential principles which must be kept in mind while
comparing trademarks that are likely to confuse or deceive the users viz.:

• The actual probability of deception which can lead to passing off

need not be proved. The likelihood of the mark to confuse or
deceive the purchaser is sufficient to bring the mark within the
scope of Section 11(1).
• The confusion or deception caused by two marks has to be judged
from the vantage point of a person with an imperfect recollection,
who only knows one word and is not familiar with both the words.
Therefore, a meticulous comparison of two similar words will be of
little help.
• When two words are being compared, they must be compared as a
whole. It would be inappropriate to compare two different parts of
two words which are being compared.
In Amritdhara Pharmacy v Satya Deo1 the similarity of the words ‘Amritdhara’
and ‘Lakshmandhara’ was under consideration used in relation to medicinal
preparations. Both these words when read or spoken together had a similarity
which could lead to confusion. The Supreme Court held that an ordinary
purchaser who is of “average intelligence” and “imperfect recollection” cannot
be expected to bifurcate the words into its component parts and compare the
etymological meaning or consider the meaning of the component words as
‘current of nectar’ (Amritdhara) or ‘current of Lakshman’ (Lakshmandhata).
An ordinary person is more likely to consider the overall structure and phonetic
similarity of the words as a whole and associate it with the nature of medicine
previously purchased by him. Therefore, the “true test” is whether the proposed
trademark, in this case, the words, when considered in totality is likely to cause
confusion in the minds of those who are already familiar with a prevailing
trademark or not.

37.Write a note on well-known trade mark.

Introduction:
As per Section 2(zg) of the Act, a well-known trademark is defined as “in
relation to any goods or services, means an 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.”

A well-known trademark is one that's considered reputable and that the

general public (consumers, manufacturers, and all those involved in the sale
and production of trademarked goods) commonly knows about.
Well-known trademarks are easy to recognize and are very protectable,
regardless of whether they're registered, because of this notoriety. This
notoriety protects well-known trademarks against infringing similar products
that:

• Are a reproduction of the trademarked goods

• Imitate or copy the protected mark
• Cause confusion as to whether the goods and services are imitators or
legitimate products of the well-known trademark

Though these regulations typically apply to infringing products in the same

industry as the well-known mark, some countries account for infringing
products that aren't similar to the protected goods and services. The extensive
protections granted to well-known or famous trademarks is important because
these marks are widely acknowledged and held in high regard. These laws also
help the owner of the mark protect their intellectual property, even if the
infringer operates in a country where the mark isn't registered. This protects
the mark owner as well as consumers, who can rest easy knowing that the
products they're purchasing are legitimate.
Even though trademark law doesn't officially make exceptions for famous,
well-known marks, it's easier for the owners of these marks to protect their
rights. Legislators are also usually proactive about resolving any infringement
that may affect the reputation of a famous company. The only issue that may
arise is if a trademark is well-known in one country but not in the country
where it's copied.
These laws are also important given the nature of our global economy. It's easy
for infringers in virtually any nation to advertise products and services by
infringing a well-known mark online. The extra but unofficial protections
extended to famous marks helps resolve these issues quickly, without appeal,
and no matter what the infringer's country of origin is.
38.Write a note on software privacy.
Introduction:
Software piracy is defined as a crime relating to illegal copying/duplicating,
selling or installing of the copyrighted software. However many jurisprudence
also includes copying of programs and codes of copyrighted software to
develop new software also as piracy. The copyrighted software is generally a
license which the licensor sale to the licensee for a certain amount which can
only be used by the single authorized user who has purchased the license. This
software can be used in two or more devices as long as the licensee is only the
user. The license terms and agreement which is digitally signed by the licensee
as “I agree” is a trust that the licensee will not make multiple copies of the
software and sale it or give it to other users who has not been authorized by
the licensor. If the licensee does the above-mentioned act this will amount to a
violation of license terms and agreement and these defeat of trust will amount
to software piracy.

Conflicts on availability of Computer Software’s

Due to advancement of technology, digitalisation widespread use of internet the

manual works has been completely transformed into technological work. The
world has become significantly small in a single click of the computer. All the
information is available on the internet. The world has seen major development
due to these inventions and advancement of technologies. This technology has
brought significant change in everyone’s life around the world as business and
commerce to which the economy of a country is depended is now itself
depended upon a software. This advancement has though enabled everything
but has brought many problems with it. The usage of internet has been
successfully helping in all kinds of research but has brought complex problems
especially in the field of cyber laws and infringement laws with it. Infringement
of copyrighted software also known as piracy is the most common but complex
problem which had been generated by such development of the technology. The
copyright laws aim to protect original/literary works created by its
creator/owner these works include cinematographic tapes, sound recordings,
musical and dramatic works, films and literary works. The computer software
programs are also included in the original works of the creator/owner and are
one of the fast-growing segments in the economy of the country and thus
protected under the Indian Copyright Act and Information Technology Act.
There is also patent protection given by certain countries such as the USA and
Japan for the protection of copyrighted softwares

Conclusion
The advancement of technologies and the growth of Internet can be argued as
the reason for the growth of software piracy in the world. The protection against
such act of offence for owner and for the users has become important objective
of every government around the world. The director of World Intellectual
Property Organisation stated that in order to meet the needs of the society with
the encouragement of creativity the country while implementing law has to
draw balance between availability of work for society and dignified economic
benefits for the creator/owner of the software to encourage the creativity
thereby encouraging the technological advancement and digitalisation and
economic benefits attributed to such advancements.

39.Explain the salient features of trade marks act 1999.

The salient features of the New Act are the following:
Expanded definition for Trademark
The definition of Trademark has been expanded to encompass any mark
capable of distinguishing the goods and services of one, from the goods and
services of another and may include any mark capable of graphical
representation including aspects of shape of goods, their packaging, and
combination of colours. As a result, even well known designs can now avail
protection under trademark law.
Service marks
One of the most significant additions in the New Act is the provision for Service
mark registrations. It is a direct effect of the amplification of the definition of
trademark to include services. It is now possible for business houses and
individuals offering any kind of service to register their mark. The definition of
services under the New Act is an inclusive one; therefore entities providing
services of any description in connection with business, industrial or
commercial matters can get their Service marks registered.

Collective Marks
Collective mark, a new concept brought into the Act makes it possible for any
“Association” to get registration for its mark. Collective Mark is a trademark
or service mark used, or intended to be used by the members of an
association, indicating their membership in such Association. The Association
is the owner of the mark and the members are the authorized users. For
example, the Advertising Club of India can register its name and logo as
collective marks and prohibit non- members from using or associating with the
mark.

Well known trademarks

The concept of well-known trademark is a milestone of the new Act. This
provision is adopted to accommodate the requirement of Art 16 of the TRIPS
agreement. The Registrar as per the provisions of the New Act is enjoined not
to register a mark that is confusing similar with a well-known trademark. The
well-known trademark is a mark used over particular goods or services that
has obtained sufficient recognition among the consumers using such goods or
services. The conditions laid down for the determination of a well-known
trademark are (1) Knowledge of recognitions, (2) Promotion of trademark, (3)
Duration, extent and geographical area, (4) Registration and use. It should be
noted that a trademark may be considered as a well known trademark even if
it is not, registered in India or used in India, or if such an application is pending
in India or the trademark is not well known in India to public at large. The
Indian Trademark law has made a remarkable provision, setting out a detailed
criteria for the identification of a well-known trademark in an area where
international consensus in lacking.

Single Register
The system of maintaining registration of trademarks in part A and part B is
omitted. Only a single register will be maintained hereafter, thereby giving no
room for discrimination between applicants, as was done formerly. All
applicants are now given equal rights and opportunities.

Single application for registration under many class of goods

As one of the means to simplify and streamline the procedure of registration,
it is now made possible to file one single application for registration of a mark
in different classes of goods or services, instead of filing separate applications.
This is expected to shorten the process of search of similar marks during
registration.

Enhanced term of protection and renewal

One of the significant changes of the Act relates to the term of protection of
trademarks. It is enhanced from the previous 7 years to 10 years. Renewal is
possible before completion of 10 years in perpetuity.

Intellectual Property Appellate Board

An Appellate Board has been established having its national headquarters in
Chennai. It is “roving in nature”, would have sittings in Kolkata, Mumbai, Delhi,
Ahmedabad periodically depending upon the work demand. It will hear
appeals from the decisions of the Registrar and decide on rectification
applications. This facilitates speedy disposal of matters in addition to reducing
the existing burden on the High Court, before which appeals used to lie under
the old Act. It is interesting to note that the Board shall not be bound by the
Civil Procedure Code; nevertheless it shall be guided by the principles of
natural justice.

Associated goods and services

The New Act provides the registered proprietor who has a trademark over
goods, a pre-emptive right over associated services and vice versa. Thus it
prohibits any other trader from using the mark even over “similar” goods or
services. It therefore differs from the old Act, which only provided protection
from imitation of the “same” goods, thereby effectively enhancing the
protection given to a mark.

Prohibition of use of trademark as a corporate name

The protection of trademark is extended to prevent any “corporate” or
“business concern” from using some one else”s mark as its trade name or
name of its “business concern”, dealing in goods and services in respect of
which the mark is registered.
Providing enhanced punishment for offences
To prevent the sale of spurious goods and falsification of trademarks,
enhanced punishment is incorporated. Punishment will be a minimum of 6
months and can extend to 3 years and a fine of rupees 50,000 to 3 lakhs. It is
a hope that this will act as a deterrent to the infringers. Further the New Act
has made these offences cognizable in nature, meaning; the law enforcement
agencies like the police can arrest the violators with out a warrant as they
come to know of such activities as these are considered serious offences.

Jurisdiction of courts enlarged

The jurisdiction of courts has been enlarged empowering them to grant ex
parte injunction or other interlocutory orders relating to (i) discovery of
documents, (ii) preserving the infringing goods or other evidence, (iii)
restraining the offender from disposing off or dealing with the assets in a
manner which may adversely affect the plaintiff”s ability to recover damages,
costs or other pecuniary remedies, thereby securing the trademark owner”s
right immediately and effectively.

Assignment of unregistered trademarks

The impeding provision imposed on the unregistered trademark owners to
assign their trademark with the goodwill of the business has now been
removed. The present Act permits the unregistered trademarks owners to
assign and transmit their marks even with out the goodwill of the business.

Defensive registration omitted.

The previous Act enabled a trademark owner to register a mark in other
classes as a defensive mechanism; the same is omitted. With the advent of the
complimentary concept of Well-known trademark and the inherent right to
secure registration in associated goods or services being recognized in the
New Act, the need for this type of registration is no longer felt.

Widened definition of Infringement

The scope of bringing an infringement suit is widened. Representation of any
mark in an advertisement by an unauthorized user constitutes infringement,
provided such advertising takes unfair advantage or is contrary to honest
practice of industrial or commercial matters; or it is detrimental to its
distinctive character; or is against the reputation of the trademark. Any oral
use of a word mark also constitutes infringement.
Miscellaneous provisions
The definition of “permitted user” in enlarged to include unregistered
licensees also, and the procedure for registration of “registered user” is
simplified. The final authority in matters relating to registration of
Certification marks is shifted to the Registrar from the Central Government.
The Act also extends the applicability of convention countries to include
members of Group or Union of countries and Inter-governmental
organizations such as members of the WTO.

Conclusion
On the whole the Trademarks Act, 1999 has removed the inconvenient
provisions of the old Act and has fostered the rights of the traders and other
service providers significantly. It also sends a warning to infringers. Surely, the
New Act caters to the developments in trading and commercial practices,
increasing globalization of trade and industry, the need to encourage
investment flows and transfers of technology, need for simplification and
harmonization of trademark management systems and gives effect to
important judicial decisions. This legislation has been much awaited by the
legal as well as the business community. At last the long lingering desire has
been satiated.

40.Paris convention guarantees the protection of intellectual property

discuss.
The Paris Convention applies to industrial property in the widest sense,
including patents, trademarks, industrial designs, utility models (a kind of
"small-scale patent" provided for by the laws of some countries), service
marks, trade names (designations under which an industrial or commercial
activity is carried out), geographical indications (indications of source and
appellations of origin) and the repression of unfair competition.

The substantive provisions of the Convention fall into three main categories:
national treatment, right of priority, common rules.

(1) Under the provisions on national treatment, the Convention provides that,
as regards the protection of industrial property, each Contracting State must
grant the same protection to nationals of other Contracting States that it
grants to its own nationals. Nationals of non-Contracting States are also
entitled to national treatment under the Convention if they are domiciled or
have a real and effective industrial or commercial establishment in a
Contracting State.
(2) The Convention provides for the right of priority in the case of patents (and
utility models where they exist), marks and industrial designs. This right means
that, on the basis of a regular first application filed in one of the Contracting
States, the applicant may, within a certain period of time (12 months for
patents and utility models; 6 months for industrial designs and marks), apply
for protection in any of the other Contracting States. These subsequent
applications will be regarded as if they had been filed on the same day as the
first application. In other words, they will have priority (hence the expression
"right of priority") over applications filed by others during the said period of
time for the same invention, utility model, mark or industrial design.
Moreover, these subsequent applications, being based on the first application,
will not be affected by any event that takes place in the interval, such as the
publication of an invention or the sale of articles bearing a mark or
incorporating an industrial design. One of the great practical advantages of this
provision is that applicants seeking protection in several countries are not
required to present all of their applications at the same time but have 6 or 12
months to decide in which countries they wish to seek protection, and to
organize with due care the steps necessary for securing protection.
(3) The Convention lays down a few common rules that all Contracting States
must follow. The most important are:
(a) Patents. Patents granted in different Contracting States for the same
invention are independent of each other: the granting of a patent in one
Contracting State does not oblige other Contracting States to grant a patent; a
patent cannot be refused, annulled or terminated in any Contracting State on
the ground that it has been refused or annulled or has terminated in any other
Contracting State.
The inventor has the right to be named as such in the patent.
The grant of a patent may not be refused, and a patent may not be invalidated,
on the ground that the sale of the patented product, or of a product obtained
by means of the patented process, is subject to restrictions or limitations
resulting from the domestic law.

Each Contracting State that takes legislative measures providing for the grant
of compulsory licenses to prevent the abuses which might result from the
exclusive rights conferred by a patent may do so only under certain conditions.
A compulsory license (a license not granted by the owner of the patent but by
a public authority of the State concerned), based on failure to work or
insufficient working of the patented invention, may only be granted pursuant
to a request filed after three years from the grant of the patent or four years
from the filing date of the patent application, and it must be refused if the
patentee gives legitimate reasons to justify this inaction. Furthermore,
forfeiture of a patent may not be provided for, except in cases where the grant
of a compulsory license would not have been sufficient to prevent the abuse.
In the latter case, proceedings for forfeiture of a patent may be instituted, but
only after the expiration of two years from the grant of the first compulsory
license.
(b) Marks. The Paris Convention does not regulate the conditions for the filing
and registration of marks which are determined in each Contracting State by
domestic law. Consequently, no application for the registration of a mark filed
by a national of a Contracting State may be refused, nor may a registration be
invalidated, on the ground that filing, registration or renewal has not been
effected in the country of origin. The registration of a mark obtained in one
Contracting State is independent of its possible registration in any other
country, including the country of origin; consequently, the lapse or annulment
of the registration of a mark in one Contracting State will not affect the validity
of the registration in other Contracting States.
Where a mark has been duly registered in the country of origin, it must, on
request, be accepted for filing and protected in its original form in the other
Contracting States. Nevertheless, registration may be refused in well-defined
cases, such as where the mark would infringe the acquired rights of third
parties; where it is devoid of distinctive character; where it is contrary to
morality or public order; or where it is of such a nature as to be liable to
deceive the public.
If, in any Contracting State, the use of a registered mark is compulsory, the
registration cannot be canceled for non-use until after a reasonable period,
and then only if the owner cannot justify this inaction.

Each Contracting State must refuse registration and prohibit the use of marks
that constitute a reproduction, imitation or translation, liable to create
confusion, of a mark used for identical and similar goods and considered by the
competent authority of that State to be well known in that State and to
already belong to a person entitled to the benefits of the Convention.
Each Contracting State must likewise refuse registration and prohibit the use of
marks that consist of or contain, without authorization, armorial
bearings, State emblems and official signs and hallmarks of Contracting States,
provided they have been communicated through the International Bureau of
WIPO. The same provisions apply to armorial bearings, flags, other emblems,
abbreviations and names of certain intergovernmental organizations.
Collective marks must be granted protection.
(c) Industrial Designs. Industrial designs must be protected in each Contracting
State, and protection may not be forfeited on the ground that articles
incorporating the design are not manufactured in that State.
(d) Trade Names. Protection must be granted to trade names in each
Contracting State without there being an obligation to file or register the
names.
(e) Indications of Source. Measures must be taken by each Contracting State
against direct or indirect use of a false indication of the source of goods or the
identity of their producer, manufacturer or trader.
(f) Unfair competition. Each Contracting State must provide for effective
protection against unfair competition.
The Paris Union, established by the Convention, has an Assembly and an
Executive Committee. Every State that is a member of the Union and has
adhered to at least the administrative and final provisions of the Stockholm Act
(1967) is a member of the Assembly. The members of the Executive Committee
are elected from among the members of the Union, except for Switzerland,
which is a member ex officio. The establishment of the biennial program and
budget of the WIPO Secretariat – as far as the Paris Union is concerned – is the
task of its Assembly.
The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at
Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in
1958 and at Stockholm in 1967, and was amended in 1979.

The Convention is open to all States. Instruments of ratification or accession

must be deposited with the Director General of WIPO.

41.Elucidate the grounds available for refusal of registration of trade mark.

Refer Q.No:30.

BY
ANIL KUMAR K T LLB COACH