INTELLECTUAL PROPERTY LAW
Comprises of the following Laws:-
Laws relating to Trade Marks / Brands (Trade Marks
Act, 1999), Property Marks
Laws relating to Copyright (Copyright Act, 1957)
Artistic Work, Literary Work, Audio Video Records and
Laws relating to Industrial Designs (Designs Act, 2000)
Laws relating to Patents (The Patent Act, 1970)
Laws relating to Geographical Indications. The
geographical Indications of (Registration and Protection)
Laws relating to Internet, Web and Information
Technology (Information Technology Act, 2000)
INFRINGEMENT OF IPR AND
INFRINGEMENT WHEN AN IPR IS
REGISTERED i.e.Trade Mark , Patent Industrial
Designs , Geographical
Passing off is a common law tort which can be used to
enforce unregistered trademark rights. Passing off
essentially occurs where the reputation of party A is
misappropriated by party B, such that party B
misrepresents this reputation and damages the goodwill of
The law of passing off prevents one person from
misrepresenting his or her goods or services as being the
goods and services of the plaintiff, and also prevents one
person from holding out his or her goods or services as
having some association or connection with the plaintiff
when this is not true.
LEGAL REMEDIES AGAINST
IS REGISTRATION OF IPR NECESSARY?
NO In case of
HOW COPYRIGHT COMES IN TO
Registration of Copyright w.r.t any logo / trade
mark is not necessary or compulsory under the
provisions of the Indian Copyright Act, 1957.
Automatic protection is available to an artistic
work, form the date when the artistic work / logo
Copyright Comes in to existence when the
concept in mind is put in to some tangible form
TRADE MARK ! WHO IS PROTECTED ?
A trade mark is granted protection on the basis of
First Invention / Adoption/ User is superior then
WHAT ARE THE RIGHTS CONFERRED
REGISTRATION OF IPR ?
Monopoly for the specified period is created in
favour of the Registrant
In case of litigation onus of proof shifts on the
Prima facie presumption is raised in favour of the
CAN THE REGISTRATION OF IPR BE
CANCELLED OR REVOKED ?
Yes, in case the registration has been obtained by
Against the rights of some other party / opponent
Registered by the Registrar erroneously
Registration prohibited under some law
Registration is against public policy or morals
WHEN REGISTRATION CAN BE OPPOSED
OR REVOKED/CANCELLED ?
During the Process of Registration – By
After Registration – By filing Rectification
WHAT IS THE TEST OF COMPARISON IN
CASE OF VIOLATION OF IPR ?
There are two ways to compare similarities
between two trade marks :-
Other tests for comparison are :-
OTHER TESTS OF COMPARISON
Likely hood of confusion and deception
From the angle of a prudent person of ordinary
No microscopic comparison
No actual confusion or deception is required
Actual loss or damage not necessary
Accounts and handing over of profits
Appointment of local commissioner by the
court for custody/sealing of infringing
PROCEDURE & PROCESS FOR
A CIVIL CASE
Filing of plaint with supporting evidence at the time of filing
of the suit
Filing of application under Order 39 Rule 1 & 2 read with sec.
151 of the Code of Civil Procedure, for grant of ex-parte ad-
Filing of application under Order 26 of the Code of Civil
Procedure for appointment of a local commissioner, to make
inventory and/or to take possession of the infringing material
form the premises of the defendants, their agents, retailers and
Hearing of arguments by court on application for grant of ex-
parte injunction and appointment of local commissioner;
The court may, if satisfied, grant ex-parte and interim
injunction and appoint a local commissioner.
Judgment by the court.
The court may give a short notice to the defendants for
giving them an opportunity of hearing before granting any
temporary injunction or appointing a local commissioners
Service of notice/summons of the court on the defendant
Filing of written statement / reply by the defendant;
Hearing on application for grant of interim injunction;
Further proceedings in the suit including filing of
replication/rejoinder, admission/denial of documents,
framing of issues;
Trade Marks Act, 1999
Copyright Act, 1957
Designs Act, 2000
Patents Act, 1970
Geographical Indications of Goods( Registration and
Protection) Act, 1999
Code of Civil Procedure, 1908
Specific Relief Act, 1963
Filing of criminal complaint before the chief judicial
magistrate/chief metropolitan magistrate of the concerned
Leading evidence w.r.t. the infringement of the trade mark
Filing of application under sec. 91/93 of the Code of Criminal
Procedure for issue of search and seizure warrants
Orders/directions by the Court to police for the search and seizure
of infringing material.
OR IN ALTERNATIVE
Direction by the court to police for investigation, lodging of an
FIR and search and seizure, under sec. 156 of the Code of
Criminal Procedure, 1973.
OR IN ALTERNATIVE
Filing a Complaint / FIR with Police
FOR CRIMINAL ACTION
Sec. 103/104 of the Trade Marks Act, 1999
Sec. 63 and 64 of the Copyright Act, 1957
Sec. 39 of the Geographical Indication of Goods Act,
Sec. 420 of the India Penal Code
Sec. 91/93 of the Code of Criminal Procedure
COMPETENT COURT FOR CIVIL ACTION
In India a suit may be instituted in any Court of original
jurisdiction, subject to its pecuniary & territorial
jurisdiction. The designation of the lowest court is
“District & Sessions Judge”. Such cases can also be
directly filed in the High Court, if such High Court is
vested with original jurisdiction, e.g. Delhi High Court.
The Jurisdiction of High Court could be invoked, subject
to the payment of Court fees. The structure of Court fees
vary from state to state.
CAN LEGAL ACTION UNDER THE TRADE
MARKS ACT, 1999 AND THE COPYRIGHT
ACT, 1957 , BE COMBINED ?
Yes, if the artwork, get up, design, color combination of
a trade mark/ label/ packing material is similar and / or
deceptively similar, the provisions of the Copyright Act,
1957, can also be invoked along with the Trade Marks
Act, 1959, and this course of action is always preferable,
as under the provisions of the Copyright Act, 1957, the
offence becomes COGINIZABLE, and police can, on its
own directly initiate Criminal proceedings after
registration of an FIR.
PROCEDURE FOR FILING A
Criminal Complaint in the Court of competent
Pre summoning Evidence, for satisfying the court on the
basis of the evidence placed on record, that the
allegations by complainant are prima facie maintainable;
Issue of General/ specific Search and Seizure Warrants,
along with directions to police;
Raid / Search & Seizure by Police
Investigation and arrest (if necessary) of accused
Summons / Warrants against accused persons;
Accused Appear and seek bail;
Framing of charges, after notice of allegations;
Onus of proof is on the complainant
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