This blog will help you understand the process of registration of your IP, and the effects of its non-registration. If you are here because you are aggrieved by the infringement of your IP, scroll down to know your rights, and understand the steps to be taken in case of such infringement.
First things first, you need to know the nature of your IP to get it registered. After determining which category they fall into, you can follow the steps provided below to get your IP registered with the relevant authorities.
As per Section 2(1)(m) of the Trademarks Act, 1999, a mark includes “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colors or any combination thereof”. So if any of your IP falls under any of the above-mentioned categories, you can get it registered as a trademark with the Trademark Registry India. A trademark is valid for 10 years from the date of the Certificate of Registration. However, it is renewable upon application.
Steps to get it registered:
- Public Search: Conduct a public search of your trademark to check if it is already registered by some other company/brand. If the trademark is registered, you cannot get a similar mark registered for yourself. Consider trying other alternatives that suit your requirement.
- Filing: After confirming the uniqueness of your mark, you can proceed to file your trademark with the Registry. There are five regional offices located in Ahmedabad, Chennai Delhi, Kolkata, and Mumbai. However, the application can be filed online as well. The application shall require you to give details about the mark, your product/service, and its type. The documents that you will require for such filing shall include your identity proof, PAN card, Aadhar card, Passport, applicable logos files, or Certificate of Incorporation if you are registering on behalf of a company. After completion of the filing, you will receive an acknowledgment receipt of the same.
- Verification: The verification of your application, and documents can take anywhere between 3-18 months. This verification is conducted by an Examiner that conducts the process of inspection of these documents. This verification is aimed at verifying your credentials, the genuineness of your application, the uniqueness of your mark, and the originality of your documents.
- Grant: There are three possible results of the inspection process. First, your application gets accepted. Second, your application is conditionally accepted. Third, it is rejected. If your application is accepted, then it gets published in the Trademark Journal of the Registry. You will then receive a certificate of registration from the Registrar. If your application is conditionally accepted, then you will be required to address the objections of the Examiner and only upon the satisfaction of these conditions laid forth by the Examiner, your application will be accepted. If your application is rejected, then you may request a hearing wherein you can represent your case and defend your application.
Effect of Non-Registration and Infringement
As per Section 27 of the Trademarks Act, no infringement can be claimed in case a mark is not registered. This implies that no proceedings can arise in a case where no trademark is registered in the first place. Damages can only be claimed against infringement of a registered trademark. If your trademark is registered, and you find out that someone has been using that mark, or a deceptively similar mark, then you can institute proceedings of infringement against the person for such use before a competent court.
A copyright can be granted over various materials such as artistic works, literary works, musical works, etc. Copyright ensures that a creator’s interests are protected and they have control over the production, reproduction, or adaptation of their work. However, copyright cannot be granted over an idea; rather, it is granted over its expression in some tangible form. The author, or the original owner, or the authorised agent of either of the two can apply for the registration of the copyright.
Steps to get it registered:
- Filing: If you wish to register your work, you will be required to file your application by filling out an application form. This can be done either by visiting a copyright office or through the official website. In the application, you shall be required to submit the details of your work along with documents such as address proof, copies of the original work, the language of the work, date of publication, disclosure of interest, etc. The type of documents required shall be subject to the kind of work that you are seeking a copyright for. For cinematographic, musical, artistic, etc., other documents relevant to the nature of the work may also be required to be submitted.
- Verification: After the application is submitted, the contents of the same, along with the documents submitted shall be examined and verified. This process takes a minimum of one month.
- Grant: Upon examination and verification, if no objections are raised, the certificate f registration shall be issued by the Registrar upon its satisfaction. If objections are raised by any party, then a hearing shall be called upon, based on which it is decided if a registration certificate shall be granted or not.
Effect of Non-Registration
Primarily, an infringement suit can only be bought upon if the copyright is registered. This is due to Section 48 of the Copyrights Act, which states that the Register of Copyrights acts as prima facie evidence of the particulars entered therein. In case you have a registered copyright, and it is being infringed upon, you can resort to the remedies under Chapter XII of the Copyrights Act. It provides for civil remedies of injunction and damages, protection of separate rights, and the author’s special rights. One can file a suit and initiate proceedings under the district court having jurisdiction over the matter.
A patent, as defined under the Patents Act, 1970 means “a patent for any invention granted under this Act.” An invention means “a new product or process involving an inventive step and capable of industrial application”. To apply for a patent, you need to be either the inventor, the assignee, or the legal representative of the inventor.
Steps to get it registered:
- Ensuring Uniqueness and Novelty: The first step in the registration of a patent is to ensure that the product/step is new, unique, and qualifies to be an invention. Moreover, it should not fall under the categories specified under Section 3 of the Patents Act. You can ensure the same by conducting a patentability search.
- Filing: The patent application is required to be filed with the Patent office. The application must contain the title, preamble, loopholes in the prior art, solutions, and summary of the inventions and their particulars, claims, and examples. A provisional as well as a full application is required to be submitted. The patent application needs to be submitted in several forms which contain details of the inventor, specifications of the invention, technical information, declaration of inventorship, statement, undertaking, and other compliance documents.
- Application Publication: Upon the filing of the application, the Indian Patent Office, after 18 months (earlier, if requested), publishes the application in the patent journal.
- Verification: In this step, the application is examined and documents are verified. If there is any objection by the examiner, the applicant must respond to those objections within 6 months from the issuance of the report of the objections by the examiner. An additional period of 3 months may be allotted for submitting the responses to such objections.
- Grant: If all compliances are met and objections are resolved, the patent office grants the patent registration to the applicant.
- Publication: Upon the grant of patent registration, it is published in the patent gazette by the Indian Patent Office.
Effects of Non-registration
There can be no claim against any party for any infringement if an invention is not registered as a patent with the Indian Patent Office. In case you have a patent registered, and you find that someone is infringing upon the same, you can initiate proceedings under the District Court having jurisdiction against the said infringement.
The best way to protect your intellectual property is to get it registered with the relevant authorities. It is wise as one cannot make a claim of infringement over an IP that is not registered. Moreover, due to the digitalization and e-filing facilities, one can file an application for registration of IP online on official websites by themselves or through their authorized representatives.
This blog is written and published for informational and awareness purposes only. If you are a victim of IP infringement or want to get specific advice about the registration of your IP, connect with a lawyer or legal expert to address your concerns. This blog must not be treated as legal advice in any scenario.