Intellectual Property: Registration and Effects
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 downto 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.
After confirming the uniqueness of your mark, you can proceed to file your
trademark with the Registry. There are five regional officeslocated in
Ahmedabad, Chennai, Delhi, Kolkata, and Mumbai. However, the application
canbe 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
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.
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. Thisimplies 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:
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
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.
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
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.
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
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.
If all compliances are met and objections are resolved, the patent office
grants the patent registration to the applicant.
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
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: MR45036971228-31-0323
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