Tdmk Flashcards by Sumedha V

Goal of IPR

Promote, encourage and reward

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WIPO IPR definition

A2(viii),
1. Literary, artistic and scientific works
2. Performances, phonograms
3. Inventions
4. Industrial designs
5. Trademarks, service marks
6. Protection against unfair competition

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RC Cooper v. UOI

Highest right of a person in relation to a tangible or intangible object

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Article 300A

Right to property includes right to intangible property

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Entertainment Network v. Super Cassette industries

Owner of copyright has right akin to owner of tangible property

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Theories for justification of IPR

Utilitarian, Labour, Personality, Social Planning

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Bayer Corporation v. UOI

Intellectual property described as “knowledge goods”

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WIPO Convention

1967
Established WIPO which has the status of a specialised agency of the UN, objective is to cooperate between states and between IPR unions established by WIPO administered treaties

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Functions of WIPO

Normative, program, classsification and standardisation, registration

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Organs of WIPO

GA, Conference, Coord Comm, Int Reg and Classification System, Arb and Med Centre

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Berne Convention

1886, first multilateral convention on copyright, protect literary and artistic works with a wide scope
National treatment and automatic protection (economic and moral rights too)

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Paris Convention for the protection of industrial property

1883, Includes, patents, trademarks, service marks, IDs, etc.
National Treatment and Right of priority (6 months for marks)

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Paris convention common rules

Registrations in different countries are independent even for lapses
Must be accepted in other countries if accepted in origin unless infringed third parties, not distinctive, would confuse, etc.

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Madrid agreement and the protocol

1891 and 1989, one application filed with International Bureau of WIPO

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TRIPS Agreement

1994, to promote effective trade
General provisions and basic principles
Standards of availability, scope and use
Enforcement of IPR
Acquisition and maintenance of IPR
Dispute prevention and settlement
Transitional arrangements
Institutional arrangements

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TRIPS on trademarks

What are eligible, minimum rights, well-known, licensing and assignment

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Trademark Law Treaty

Harmonisation of registration procedures
Application of registration
Changes after registration
Renewal

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Cadbury India Limited v. Neeraj Food Products

Protection trademark’s goodwill and consumer

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History of trademark law

Indian Merchandise Act, 1889
SRA 1977
Trademarks Act, 1940
Trade and Merchandise Marks Act, 1958

Trademark Act, 1999

Increasing globalisation, simplification and harmonisation, TRIPS agreement
Came into force on September 15, 2003

Essentials of trademark

Must be a mark
Capable of being represented graphically
Cable of distinguishing the goods and services of one from another

Brand

Symbols branded on goods

Devices

Pictorial representation

Label

Ringed on paper, pasted and attached to goods

Capable of being represented graphically

- paper form - no need of supporting samples to explain it - only graphical would also suffice to represent mark - reasonably discern the purpose of trademark

Non-traditional marks

Smell marks, Sound marks, Taste marks, Colour marks, Moving imaged/holograms, 3D

Certification trademark

In the course of trade which are certified by the proprietor

Collective Trademark

Members or association of persons

Carrefour v. Subburaman

(I) developed goodwill and reputation in several countries (II) secured registrations in many countries in many products (III) trademark registered in India since long time

Who can apply for registration

Any person owning a mark Single application for multiple classes

Place of filing

Local trademark registry, if more than one proprietor then place of operation or shares

Absolute grounds for registration

- not distinctive - used in trade for quality, source etc. - become customary usage - deceives public - hurts religious sentiments - scandalous or obscene - emblems and names

Distinctiveness

inherently capable of distinguishing or adapted to distinguish, without prompting should be able to identify, extent and period of use goodwill and association in the minds of.Consumers Investments on advertisements Recognition In trade circles

Classification of registerability

Generic p Descriptive Suggestive Arbitrary Fanciful

Relative grounds of refusal

- identity with earlier trademark and similarity of goods/services - similarity of goods/services - identity or similarity with well known trademarks

EBC v. DB Modak

Hard work that goes into derivative work must be acknowledged, copyright

Cadbury India Limited v. Neeraj Food Products

Similar colour scheme,name and packaging likely to cause confusion, deceptively similar, especially since main demographic is kids

Novartis AG v. Cipla Ltd.

Patent doesn’t have to be manufactured in India to be worked in India, can be imported

Microsoft Corp. v. Kurapati Venkatesh Jagadish Babu

Microsoft is a well known trademark

Lakshmi Kant Patel v. Chetanbhat Shah

Essentials of passing off are goodwill, misrepresentation, likelihood of damages

Rolex SA v. Alex Jewelry

For prior use there must be continuous use, Rolex is a well-known brand

Imperial Tobacco Co. v. The Registrar of Trademarks

“Simla” is a popular geographical location

Timken Company v. Timken Services

Mere concurrent use not enough, must be honest and unaware

Toyota Jodisha v. Deepak Mangal

Likelihood of confusion must be territorial as well

Neon Labs v. Medical Technology

Prior use

Nandhini Deluxe v. Karnataka Co-op Milk Producers

Both not in the same field of business and Nandini milk had no plan of expanding business into other classes

Gujarat Bottling Company v. Coca Cola

Prior franchising agreement not superseded by subsequent user registration agreement