YouTube is filled with videos of people (budding artists!) singing songs of their favourite artists in their own style and giving it their personal touch or artists who are remixing songs. In the first scenario, it would be a most likely be cover version of the original song since the singer is retaining the lyrics and the musical arrangement but singing it in his own style. However, in the case of remixes, the artist is changing the musical arrangement by adding beats, lyrics and a few notes, may be. Would this amount to copyright infringement if done without the consent of the original artist?
The most common question arising now in the minds of people, especially entrepreneurs, is if it is not possible to apply for registering a trademark by themselves, without getting any assistance from a trademark lawyer. The misconception is that trademark application is nothing but a mere filling out of forms. But the most important question to ask is : “does the process end there..or on the contrary, begin there?”
The issue dates back to 2nd February, 2012 and 8th June, 2012 when the Controller General of Patents, Designs and Trademarks (CG) issued an Office Order No: 1 of 2012 and Office Order No:16 of 2012 respectively, that placed restrictions on amendments that can be made to a trademark application, more importantly the restriction in respect of amending the date of usage of the trademark in India.
In my earlier post on this matter, I discussed the importance of filing the statement of working for a patent without delving into the aspect of confidentiality or lack thereof when such statements are made. Statutorily, the statement of working may be published by the Patent Office and so the Patent Office has made available online the statements of working filed for the year 2012.
Yoga is one of the oldest physical and spiritual exercises known to mankind. It is collective knowledge and has been believed to be in existence from around 2500 B.C. Come to think of it, there should be no intellectual property battle over it – it is India’s traditional knowledge and no single entity or company should be allowed to monopolise any yoga asana or posture in the form of a patent or copyright, as the case may be. However, practically and legally, it isn’t this straight forward and answers can only be sought by analysing, inter alia, copyright over yoga postures, impact of India’s Traditional Knowledge Digital Library (TKDL) and the current position of law in light of the latest Delhi High Court judgment.
The joint ownership of a trademark is possible within the Indian Legislative framework. However, it represents an unusual construct in that the very concept of a joint ownership is counter to the fundamental purpose of a trademark. A trademark usually serves as a designation of origin from a single entity or person. The usual policy is to have a jointly owned single entity owning the mark. When there is joint ownership of a trademark, however, joint owners of a trademark likely have to account to one another for profits related to the mark. To exclusively license a trademark requires the consent of all the owners of the trademark.
Before all else, I would like to clarify that this article does not deal with how to get a patent in India. This article merely describes the procedure for making a patent application in India. The decision to provide a person with a patent is purely an administrative matter of the Indian Patent Office. Therefore, it is not possible to provide a definitive answer to questions like “Will my product be patented?” or “How long will it take for me to get a patent?”
I was referred to this article by one of my colleagues who got it on his RSS Feed. The article itself points to a recent order of the IPAB which “yet again chastised the Indian Trademark Registry in its Order dated 12th July”. Naturally my curiosity was piqued and I went on to read said Order.
In Utopia, I believe competition among similar businesses would be healthy and fair. However, in the real world, the Darwinian principle of survival of the fittest applies. We find that some wonderful businesses, with unique and sometimes well-established brands, end up in shambles because their owners did not take the right steps at the right time to protect those brands. So, the proverbial cheats prospered, right? Not really. Everything boils down to what someone rightly said “If you don’t know your rights, you have no rights.”
While we are all excited about India becoming a part of the Madrid System on July 08, 2013 there are serious concerns on how the Indian trademark office already struggling with delays and quality of examination going to cope up with the new international applications. Among other issues such as Central Attack and whether an application can be filed in India by a foreign lawyer the following are some practical issues that the Government should have looked into before giving false hopes.
We are a boutique intellectual property law firm based out of India, assisting clients ranging from early-stage start-ups to Fortune 500 companies across several industries in protecting intellectual property across the globe.