Intellectual Property Intellectual Property Rights (IPR) define variety of legal rights in protecting products of intellectual efforts of creativity

in the fields of applied art, knowledge and fine arts. Intellectual Property Rights mainly comprise trademarks, patents, copyrights, service marks, designs and confidential information (trade secrets), know-how etc. and the right to protection from passing off. Intellectual Property Rights are of great importance for modern industry and commerce and, in many cases, they have a very important effect on the economy and on the very existence of a business entity. These comprise the right to control the use of technology and creative material, including rights in artistic, musical and literary work, and the right to prevent others from misusing certain marks, symbols and drawings and in distinguishing one from the other. Intellectual Property Rights provide means by which an owner or an innovator can protect his innovation etc. from being imitated and safeguard the fruits of his valuable labour and investment. Basically, an Intellectual Property Right gives a remedy to its owner against those persons who want to reap the fruits of his ideas or work. The value of Intellectual Property cannot be defined in monetary terms; it is an intangible asset of any corporate entity. The concept of Intellectual Property in India and the world over is taken to be sacrosanct and an impregnable propriety, which has made Patents, Trade Marks, Copyright, Designs, Transfer of Technologies rather tangible in terms of propriety. New laws, for the registration and protection of these rights, have replaced the old and antiquated laws, not only in India but also all over the globe. IP rights are valuable assets, which need to be scrupulously guarded against from being infringed or misused. The value of Intellectual Property cannot be defined in monetary terms; it is an intangible asset of any corporate entity. Need for protection of IPR In todays highly competitive business world, brands play very crucial role and protection of IPR is vitally important for pharmaceuticals, biotechnology and other such industries that require risky investments in innovation and discovery. Whenever a new product, service or an idea is created, there is every possibility that some one else may imitate it. Whether or not it could be imitated, depends on the fact whether IPR exists. There is little point in holding IPR unless they can be enforced against people who infringe or intend to infringe the same. The projection of a product being based in its category now requires not just product positioning but also the positioning of the company manufacturing it. Corporate identity has, therefore, become very important. People buy products or services for what they mean more than what they can do. Similarly, ideas and innovations are required to be protected in order to avoid exploitation. IPR also enable one to keep ahead of competitors and in order to be used effectively, it is absolutely essential to understand the complex and legal principles of IPR and apply them in practice.

How to protect IPRS? It is always advisable that as and when business houses or industrialists adopt a mark/label/logo or create any copyright in a musical, literary, artistic work, or work of a new invention, or develop a three dimensional new design, they should immediately apply for registration of the same under the relevant Act. Needless to say that once registration is obtained, the owner is entitled to statutory protection and has a better title to support his claim in a court of law in case of any dispute. For example, in case of piracy of a brand, copyright, patent or a design, if the owner is having registration under the relevant Act, he can sue the infringers in an action for infringement, and if it is an action for infringement, in all likelihood, the courts are readily inclined to grant protection by way of an ex parte injunction. In case the owner under the relevant Act does not obtain the registration, one would have to take an action for passing off, which is a common law remedy. In an action of passing off, the courts are a bit hesitant in granting an injunction because they have to rely more on evidence and personal discretion before granting the relief. Therefore, it is advisable to obtain registration as early as possible. Apart form the above two remedies, criminal action can also be taken under the relevant Acts along with the Indian Penal Code and the Code of Criminal Procedure against infringers and those selling spurious goods in the market. Enforcement of intellectual property rights in India. From the day the Indian economy opened up and from 1999 onwards, there has been a lot of pressure on the Indian Government to make its IP laws more stringent and in conformity with the TRIPS Agreement. As a result, India has been compelled to enact in almost each subject of the IP laws a new Act and introduce major amendments. For example, a new Trade Marks act 1999 came into effect from 15th September 2003, a new Designs Act came into force in 2000, a new Copyrights Act came into effect on 1999, and a new Patent Act came into effect recently. In the above new Acts, many amendments have been made by which various important provisions have been added to cover technical, administrative and legal issues, whereby registration process has been made quicker and easier, penalties for offences have been increased, and penal actions have been made more stringent. Details of the amendments so made can be provided if asked for. Broadly, IP rights in India can be enforced by two ways Civil action and Criminal action. Civil action: As and when a party proposed to take a civil action against any infringer, it has to file a Suit for infringement or passing off in a High Court or a District Court (Both courts have jurisdiction). If the Plaintiff has a good prima facie case, Indian Courts are very prompt in granting ex parte Injunctions, restraining the Defendant, his agents, servants etc. from infringing a Trade Mark/Copyright/patent or a design of the Plaintiff. Once an ex parte injunction is granted, we, at Aggarwal Associates, can say, from our vast experience of the last about 40 years, that in all probability, the matter is settled between the parties and a Compromise Decree is passed by the Court in favour of the Plaintiff and against the Defendant. This entire process takes a period of approximately one month to four months. However, an ex parte injunction can

be obtained within about three days or so after receiving the documents and instructions from the client. In case the Defendant fights the case, in that case also, the trial of the entire Suit can be finished within a maximum period of two years, depending upon the caliber and efficiency of the Lawyer representing the Plaintiff in the Court. This has become possible because there have been changes in the Indian Civil Procedure Code, whereby now evidence is led by way of Affidavits instead of oral evidence as heretofore. Criminal action: In so for as criminal actions are concerned, in case the counterfeiting goods are available on a large scale in the market, and a Mark, or a copyright is infringed at different places, we generally advise our clients to file a Criminal Complaint before the Court of Metropolitan Magistrate and obtain Search & Seizure Orders against Unknown persons/firms etc. After receiving instructions from the Clients with complete address of the Accused along with necessary documents, we at Aggarwal Associates can assure our clients that we shall be in a position to obtain Search & Seizure Orders from the court within ten days or so after receipt of the instructions. Once Search & Seizure Orders are obtained from the Court, the raids can be got conducted with the help of the Police and fake/duplicate goods can be recovered and seized by the police and the same remain in Police custody. Criminal action leads to criminal prosecution. Once raids are conducted, goods are seized and Police files its report before the Metropolitan Magistrate, charges are framed against the accused and immediately thereafter from the same day, the criminal prosecution turns out to be a State case, meaning thereby that it becomes a case between the State and the accused, and the Counsel for the Complainant or the Complainant need not attend the matter. Aggarwal Associates, with their long and varied expertise, provide essential and much-needed services in this field of the law, which include

registration of copyrights, designs and patents, servicemarks and trademarks; maintenance of the rights worldwide; monitoring of misappropriation of clients proprietary rights; advice on acquisition, sale and licensing of such rights; drafting agreements and Deeds, and negotiating a wide range of contracts in relation to these rights, namely, Agreements relating to domestic and foreign product-distribution, assignment and licensing, purchasing, selling and perfecting interests in intellectual properties as a part of Corporate take-over or restructuring, advertising, telemarketing and promotional industry agreements, and those involving know-how and trade-secrets. Handling registrations, disputes and litigation of any nature, involving clients intellectual property rights before all forums in India. Writing of patent specification by scientific and technical experts and filing of patent Applications

The Firm handles all aspects of registrations and litigation relating to Patents, Designs, Copyright and trade secrets; and liaison with local lawyers, in relevant jurisdictions. The Group also specializes in the conduct of litigation in parallel jurisdictions.

The experienced and committed team of lawyers are eminently equipped and can be relied upon to tackle the present day intricate, knotty, complicated and varied issues related to IP matters, including brands, marketing and advertising, trademarks, designs, copyrights, patents, passing off, parallel imports, trade libel, unfair competition and regulatory concerns such as labeling. Aggarwal Associates have also a well-known and reputed International client portfolio and have been instrumental in fighting, with success, in securing their IPR in world famous brand names Besides, they have been diligently pursuing the prosecution of various world famous Patents, Trade Marks, Copyrights & Designs applications and are associated with many of leading law firms worldwide.

Intellectual Property Trademarks A trademark is any word, name, symbol, or device capable of distinguishing the goods or services of one person from those of others, and may include shape of goods, their packaging and combination of colours. Trade Mark includes a brand name, a house mark, and a service mark. A trademark may be an insignia, label, name, sign, logo, device, signature, numerals, packaging, shape of goods, colour combination etc. In other words, a trademark is a visual symbol used in relation to any goods or services to indicate some kind of trade connection between the goods and services and the person using the mark. It usually identifies the product and acknowledges its unchanged quality and helps to advertise the product. This gives the consumer satisfactory assurance of the quality of the article he is buying. Their duration is not limited and they may last forever, subject to renewals at proper intervals. Priority of right is determined by who first used the mark within the particular geographic area. In those countries, which recognize common law rights, use of a mark commercially must be demonstrated before grant of registration of the mark. If they are not properly used and protected, it becomes difficult to be enforced against misuse. Brands today are demonstrably the most powerful and sustainable wealth creators in the world. Therefore, a brands future needs to address how to be better, stronger, more distinctive and more valued. The definition of a brand is probably more complex today than it has ever been. People have more choice today than they ever had before. So, the brand must be, so to say, a bridge of trust to the consumer. Trust is undoubtedly the future of a brand. A brand has to be customer-friendly. There are many characteristics shared by the strongest brands today, the most critical of which are clarity, consistency and leadership. Around the world, millions of dollars are spent every year in building a strong brand. A brand is the identity of a product and assures of a pre-sold quality. Corporate image is now a days being treated as a brand. It is the net result of interaction of all experiences, interaction of belief and knowledge that people have about the company, and many products have names synonymous with the brand names. A brand thus generates the goodwill of the company also and, therefore, needs to be protected. Goodwill is generated as the business is carried on and is augmented with the passage of time, and it is the mechanical quality of a particular trade, which

attracts the customers. Goodwill has become a component of the total value of an undertaking that is attributable to earn profits. Therefore, brand protection becomes inevitable in the present day scenario PROTECTION OF TRADEMARKS IN INDIA Trademarks which are applied to goods and Service marks are applied to services are protectable in India apart from Certification marks, which indicate that particular products or services meet the standards set by the certifier. Well-known marks are also granted protected in India, though most countries protect only trademarks and service marks. India also recognizes, trademark rights under the Common law. Such rights are acquired, through use of a trademark in commerce and registration is not mandatory. Common law rights extend to a geographic area, in which the trademark owner carries on his business under his mark in relation to products or services to which the mark is applied. Priority of right is determined by who first used the mark within a particular geographic area. In countries, like India, which recognize common law rights, use of a mark in commerce has to be proved before registration of the mark can be granted. In those countries that do not recognize common law trademark rights, such rights can be acquired only through registration. Priority is determined by the filing date of the trademark application. Under the T. M. Act 1999, if a mark/brand is well-known or world famous, it is liable to be protected, irrespective of its use in India. Under the Indian law, initially, the registration of a trademark remains valid for ten years and thereafter the same can be renewed after every ten years. Unlike as in many countries, where only use-based applications are allowed to be filed, in India applications for registration can be filed either stating Proposed to be used or based on the actual date of use. For filing of an proposed-to-use application, as the term itself indicates, the mark need not have been used on the date of the application, but the and, therefore, must commence actual use of the mark in commerce before such an application matures for registration. Aggarwal Associates ,has a well-experienced and energetic team of lawyers who deal in the prosecution of Trademarks Applications as well as in litigation. Many world famous brands have been got registered and successfully protected by Aggarwal Associates. AGGARWAL ASSOCIATES PROVIDES FREE SEARCH REPORTS AND ADVICE ON REGISTERABILITY OF A TRADE MARK TO THEIR CLIENTS PROTECTION OF WELL KNOWN TRADEMARKS IN INDIA STATUTORY PROTECTION

The Trademarks Act was introduced in India in 1999 and came into effect on 15th September 2003. One of the changes that has been brought about by the Act is that it gives statutory protection to well-known Trademarks which were earlier protected under the Common law. Before having a look at how the Common law granted protection to well- known trademarks till now, let us first examine the statutory protection conferred by the Act. Section 11(6) and 11(7) deal with the facts that the Registrar will take into consideration, while determining that the mark is a well-known mark, 1. The knowledge or recognition of the alleged well known mark in the relevant section of the public including knowledge obtained as a result of promotion of the trademark 2. The duration, extent and geographical area of any use for that trademark. 3. The duration, extent and geographical area for any promotion of the trademark including advertising or publicity and presentation at fairs or exhibition of the goods or services in which the trademark appears. 4. The duration and geographical area of any registration of any publication for registration of that trademark under this Act to the extent that they reflect the use or recognition of that trademark. 5. The record of successful enforcements of the rights in that trademark, in particular the extent to which the trademark has been recognized as a well known trademark by any Court or Registrar under that record. 6. The number of actual or potential consumers of the goods or services 7. The number of persons involved in the channels of distribution of the goods or services. 8. The business circle dealing with the goods and devices to which the trademark applies Whereas a trademark has been determined to be well known in at least one relevant section of the public in India by any court or Registrar, the Registrar shall consider that trademark as a well-known trademark for registration under this Act. In addition to this there are several facts that are not to be taken in to consideration by the Registrar in determining the well-known trademark. These are as follows:1. 2. 3. 4. The Trademark has been used in India The Trademark has been registered The application for registration of the Trademark has been filed in India. The trademark is well known in or has been registered in, or in respect of which an application for registration has been filed in any jurisdiction other than India or 5. The trademark is well known to the public at large in India Section 11(10) deals with various aspects in relation to the Protection of well known trademarks. It states:While considering an application for registration of a trademark, and opposition filed in respect thereof, the Registrar shall

1. protect a well known trademark against the identical or similar trademark, and 2. take into consideration the bad faith involved either of the applicant or the opponent affecting the rights relating to the trade mark. However, it is also stated that if a trademark has been registered in good faith disclosing the material information to the Registrar of where right to a trademark has been acquired through use in good faith before the commencement of the Trade Marks Act, 1999, then the validity of the registration of the trademark or right to the use of that trademark will not be prejudiced on the ground that such mark is identical or similar to a well known trademark. Section 11 of the Trade Marks Act provides for facts to be considered while establishing a well known trademark, protection of a well known trademark and protection of marks registered in good faith viz. a viz. well known trademarks. PROTECTION OF WELL KNOWN MARKS UNDER COMMON LAW Several cases have been decided by various High Courts in India in which well known marks were protected. As at that time the Trade and Merchandise Marks Act 1958 did not provide for any provisions under which these marks could be protected, the protection was conferred in them under passing off. In Daimlor Benz Akietgesellschaft vs. HYBO HINDUSTAN (AIR 94 del 239) , injunction was sought by the manufacturers of the Mercedes Benz Car against the defendants who were using the three pointed star in the circle and the word Benz. Injunction was granted against the defendants who were using the mark Benz on underwear apparel. In the matter of Kamal trading Co. vs. Gillette UK Limited (1998 IPLR 135) injunction was sought against the defendants who were using the mark 7O Clock on their toothbrushes. This was further reaffirmed by the Bombay High Court, which held that the plaintiff had acquired an extensive reputation in all over the world including India by using the mark 7 O Clock on razors, shaving creams. The use of an identical mark by the defendant would lead to the customer being deceived. In Whirlpool Co. & Anr. Vs. NR Dongre1996 PTC 415 The plaintiffs mark was Whirlpool and they had registered the same in India in 1977. However the mark had not been renewed. The Plaintiffs mark had a world wide reputation and the defendant was using the mark on Washing Machines. The Plaintiffs had sold machines in a limited number to the US Embassy in India. However they had also advertised in a number of international magazines having circulation in India. The Court held that the mark Whirlpool had established a transborder reputation in India and hence the defendants were injuncted from using the mark Whirlpool for there goods. In Aktiebolaget Volvo Vs. Volvo Steels Limited 1998 PTC 47 it was held that the plaintiff had established a reputation in India in relation to its mark Volvo. It was advertised in various international magazines having circulation in India and the plaintiff had also registered the mark in India. The defendant had adopted the mark with fraudulent intentions to benefit from the reputation of the Plaintiff.

In Caterpillar Inc.Vs. Jorange and Another 1999 PTC 570 the defendant had started using the marks CAT and CATERPILLAR on their garments. The Plaintiffs trademark CATERPILLAR or CAT was registered in 175 Countries all over the world. It was also registered in India and the registrations were valid and subsisting. The Court while granting the injunction held that the plaintiffs have made out a prima facie having regard to the trans border reputation established by it undoubtedly with regard to heavy duty vehicles all over the world and in several countries even with regard to garments. Protection of Well known Trademarks by the New Act is in recognition of the more modern concepts of trademark protection. Though the Indian Courts were actively protecting Wellknown Trademarks, Statutory protection is a step in the right direction. GEOGRAPHICAL INTRODUCTION AND BRIEF HISTORICAL GLIMPSE INDICATIONS

In consonance with the TRIPS obligations the Geographical Indications Act 1999 came in to effect on 15th September 2003 in India. The Act has strengthened the protection of Geographical Indications in India and was eagerly awaited. Before the advent of the TRIPS Agreement there were no multinational or multilateral agreements, which dealt with the protection of Geographical Indications. There were, of course International Treaties, like Paris Convention, Lisbon Agreement, which aimed at protecting Geographical Indications. However, the protection under these Treaties was limited and there were a restricted number of signatory countries, it did not prevent worldwide infringement of various Geographical Indications. Though the inclusion of Geographical Indications in the TRIPS Agreement was marred by controversy, it heralded its entry in Intellectual Property Law. TRIPS-Distinction in protection conferred under Article 22 and Article 23 Art. 22.1 of the TRIPS agreement defines Geographical Indication as Indication which identify a good as originating in the territory of a member or a region or locality in that territory to where a given quality, reputation or other characteristic of the good is essentially attributable to the geographical origin. The difference between Geographical Indication and Trade Mark are that the former indicates the source of the product, meaning the geographical jurisdiction from which the product has originated from and the later is a sign which is used in the course of trade and it distinguishes goods or services of one enterprise from those of other enterprises. Article 23 provides for additional protection for geographical indication of wines and spirits. This has led to a divide between the countries who are the signatories of the TRIPS Agreement.

India and a host of developing countries argue that as their Geographical Indications are agricultural in nature the additional protection provided by Article 23 should be extended to these products as well. On the other side of the fence are countries, like Australia, US and many Latin American countries, which oppose the extension of the protection of GIs. India and other developing countries argue that the protection granted by Art. 22 is insufficient in protecting their geographical Indications as the test under this Article is of unfair Competition. Furthermore the burden of proof is on the plaintiff that their Geographical Indication has been infringed. Article 23 provides a blanket protection to wines and spirits and in cases of infringement there is no onus on the plaintiff to prove Unfair Competition or adduce evidence in relation to the same. The distinction between the protection offered by Article 22 and Article 23 can be illustrated with the help of an example. If a trader uses the words Darjeeling type tea, or kind, style and imitation on a pack of tea he cannot be held for violating the law as the true origin of the product has been stated on the box. This leads to a case scenario where Geographical Indications can be misappropriated without violating the law. However under the expansive protection afforded by Article 23 there is a blanket ban on using a false Geographical Indication on any wines or spirits even though the true geographical origin might be mentioned on the product. The disparity between the protections offered by the two Articles has led India and a host of other countries to doubt the efficacy of the protection afforded to geographical Indication in relation to non alcoholic products in the International Arena. Geographical Indications Act -1999 The new Act that has been passed will effectively protect various Industrial and Agricultural resources existing in India. Some of the examples involved are Basmati Rice, Alfanso mangoes, Nagpur oranges, Kanchipuram Saris, Darjeeling tea, Pashmina shawls, Agra ka Petha, Bikaneri Bhujia, Malabar Peppers, Khadi and many more. The Act is also significant because the TRIPS Agreement provides that if the Geographical Indication is not protected in its Country of Origin then it will not be protected in the International arena. The Registration of the Geographical Indication confers the right of exclusive use coupled with the right to obtain relief in respect to infringement. Any association of persons, producers, organization or authority established by or under the law can apply for the registration of the geographical Indications and if there application is successful there name is entered in the Register as registered Proprietors. For example the Tea Board of India can apply for registration of Darjeeling Tea.

A producer of goods can apply for registration as an authorized user. The registration of an authorized user is valid for a period of 10 years and thereafter it can be renewed for a further period of another ten years. If there is a lapse in renewing the registration it will be removed from the Register. The Registration of Geographical Indications is not compulsory but it affords better legal protection to facilitate an action for infringement. The Act prohibits licensing, transmission assignment or pledge in respect of any Geographical Indication. An action for infringement as well as passing off can be brought under the act. Infringement includes unfair competition. A varied number of reliefs such as Injunction, Discovery of documents delivery up are available. Conclusion The new Act will go a long way in imparting the necessary legal certainty in this area of Intellectual Property in India. However on account of the discriminatory protection conferred to non alcoholic Geographical Indications it is a certainty that the Indian Geographical Indications will continue to be exploited commercially in the International arena. Until there is an understanding between the various signatories and Article 23 type of protection is extended to other Geographical Indications it will be impossible for India to protect its Geographical Indications internationally.

Intellectual Property Copyrights As its name suggests, copyright protects works from being copied without permission. Copyright goes beyond mere copying, however, and extends to other activities such as making an adaptation of the work in question, performing or showing the work in public, broadcasting the work and dealing with infringing copies of the work. In India the term of copyright is 60 years. The object of Copyright law is to protect the original work from an unlawful reproduction or exploitation of the work. Copyrights provide protection to authors of original works that are produced in a tangible form of expression. The tangible form of expression need not be directly perceptible, so long as it may be communicated with the aid of a machine or device. It protects original artistic, literary (including computer programmes, compilations and databases) and musical and cinematographic works produced through ones own skill, labour, intellectual efforts and creativity. Copyright protection is available to both published and unpublished works. Copyright can be claimed in Literary Works; Computer Programs; Musical works (including any accompanying words), Dramatic works (including any accompanying music); Pantomimes and choreographic works; Pictorial, graphic, and sculptural works; Motion pictures and other audio visual works; Sound recordings; and Architectural works.

Copyright protection arises automatically on the work being created and does not depend on registration. But registration confers statutory rights and is prima-facie title of ownership. Copyright protection subsists from the time the work is created in a fixed form and immediately becomes the property of the author who created it. Works authored by employees, working within the scope of their employment, are generally considered works-made-for-hire, in which case the employer, rather than the employee, is treated as the author and owner of the copyright in the work. Certain works by non-employees may also be works-made-for-hire but only if the parties involved agree in writing that the work will be treated as such. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole. PROTECTION The Indian Copyright Act gives the owner of a copyright exclusive right to produce the copyrighted word, produce derivative works based upon the copyrighted work, distribute copies of the copyrighted work to the public, exhibit the copyrighted work publicly or by means of digital audio transmission, and display the copyrighted work or its portions publicly. Copyright protection subsists from the time the work is created in a fixed form and immediately becomes the property of the author who created it. In certain cases, works may be authored by employees. These are known as works-made-for-hire. In such a case the employer is treated as the author and owner of the copyright in the work and not the employee. Certain works by entities, other than employees, may also be works-made-for-hire but for that the parties involved have first to agree in writing that the work will be treated as for hire. Where a work is the result of efforts by more than one author, in such a joint work, the authors are co-owners of the copyright in the work, unless there is an agreement specifically giving the right to one of the authors. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole. While copyright protection attaches to a work of authorship as soon as the work is fixed in a tangible medium, Indian Copyright Act also provides for registration of copyright rights. Copyright registration has many advantages, e.g., it forms a public record of the copyright claim as is available and without copyright registration, one cannot file a suit for infringement in a court of law. Prima facie evidence of the validity of the copyright and of the facts stated in the Certificate of Registration (if registration is made within five years of publication). In a suit for copyright infringement, the copyright registration holder can even claim statutory damages and attorneys fees. Intellectual Property Patents Visualizing the vast potential of Patent related jobs pouring into India from all over the world, and to provide prompt, efficient and quality Patent Research Services to its valued clients and also make the firm a single window service IP law firm in India, Aggarwal Associates has hastened to strengthen its existing team of Patent Lawyers and Attorneys, by adding a new wing called K-Analysis, to cater exclusively for Patent related research jobs, so that, besides handling

litigation and prosecution matters, all patent related services are also provided by our firm. This new wing, comprises of highly qualified, experienced and devoted young IPR Analysts from premier institutions, each a specialist in his own subject, like biotechnology, biopharma, chemistry, physics, electronics etc. shall henceforth provide such IP research services. This will be in a way a new and separate wing under Aggarwal Associates umbrella, providing intellectual property research services, like

Patentability and validity studies, Technical literature research, IP assessment management services, Technology landscaping, Patent portfolio structuring, Patent drafting, Proof reading to ensure multi layer quality control for drafting, Patent licensing study, Patent mapping, IP due diligence, Patent valuation study, Competitive intelligence, involving looking at the clients competitors existing patent portfolio, its activities in patent acquisition, patent assignment and licensing, product segments and pipeline, R&D focus, finances etc.

Requisites for filing a Patent Application The Application form has to contain provisional or complete specification, drawing, abstract of invention, particulars of the inventor and invention, filing date and current status of foreign patent application (in case of conventional and PCT Applications), priority documents etc. declaration of inventor ship, Power of Attorney, and the requisite fee. Under complete specification the invention as claimed has to be completely stated, with the drawings, and the claim/s defining the scope of protection sought. It should also contain the title of the invention, field of invention, background and object of the invention, a summary of the invention, description of the accompanying drawing, detailed description of the invention with reference to drawings and the claims. Software per se is not patentable in India. However clubbed with the hardware enabling the machine to function effectively, software may be protected. Business methods are outside the purview of patent protection in India. In India the types of Applications for patent that can be filed are

Ordinary patent i.e. without claiming an priority, Patents of addition, adding to earlier applications Convention Applications PCT Applications.

The inventor himself or person the assigned by the inventor or any legal representative of any deceased inventor can file the request application for filing patent. In case of convention applications, the application is to be filed within 12 months of the priority date (i.e the date of filing in the parent country) .and incase of PCT applications the application has to be made within 36 months from the priority claimed. The Application will be published within 18 months of filing the same. For a PCT application the proof that an application has been filed, duly certified by the respective Patent office, is required to be filed within 21 months if India is elected as designated country and within 19 months if India is not designated.

Steps involved in the processing of application (prosecution) Filing of application with provisional / complete specification. Filing of request for examination (within 36 months) of the filing of the applications). Filing of issuance of Examination Report Filing of submission of amended documents, if any (12 months granted for meeting the requirements) Filing of examination of amended documents. Acceptance / refusal (appeal to high court) Publication will take place after 18 months of filing.

Total time taken for acceptance of patent, before advertisement in India is approximately 3-4 years and the duration of patent in India is 20 years from the date of filing of the application for patent. Requisites for filing of Patent Application in foreign Countries by Resident IndiansForeign Filing licenses (FFLs). As per the patent laws prevalent in many countries, the Indian Law also stipulates a requirement of seeking prior permission for getting domestic inventions patented in foreign countries. The relevant section was incorporated by the amendment to the Indian Patents Act 1970 effective from 1st January 2005. According to the Indian Patents Act, residents of India cannot apply for Patents outside India without prior written permission sought in the manner prescribed and granted by or on behalf of the Controller (unless an Application for a patent for the same invention has been made in India, not less than six weeks before the application outside India). AGGARWAL ASSOCIATES also assists Indian inventors to obtain such foreign filing licenses (FFLs).

Intellectual Property Designs The creations of the human mind, i.e. the human intellect, are the objects of Intellectual Property. With globalization and the world becoming a single market place, these intangible

property rights have become increasingly valuable. Any attempts to infringe or pass-off such rights are to be severely discouraged and the owner is to be given full legal protection. In todays world, when large investments are required to finance research and development in various fields, there would be little incentive to invest in development of new products, advertise or build a strong brand, or invent something new unless and until protection of intellectual property rights is available. Intellectual Property Rights are of great importance for modern industry and commerce and in many cases, they have a very important effect on the economy and on the very existence of the business entity. These comprise the right to control the use of technology and creative material, including rights in artistic, musical and literary work, and the right to prevent others from misusing certain marks, symbols and drawings and in distinguishing one from the other. IPR also provide means by which an owner or an innovator can protect his innovation etc. from being imitated and safeguard the fruits of his valuable labour and investment. Basically, an Intellectual Property Right gives a remedy to its owner against those persons who want to reap the fruits of his ideas or work. The value of Intellectual Property cannot be defined in monetary terms; it is an intangible asset of any corporate entity. Designs are also an important component of intellectual property rights, which are worthy of protection. Design indicates any aspect of the features of shape, configuration, pattern or ornament applied to any article by any industrial process, whether external or internal of the whole or part of an article. A new or novel design can be registered as per the provisions of the Designs Act and such registration gives the proprietor a copyright in the design for five years, which can be renewed for two further terms of five years each. Those who wish to purchase an article for use are influenced not only by the practical efficiency and utility of the article but also by its appearance. Many consumers look out for artistic merit and some are attracted to strange and bizarre eye-catching designs. Much thought, creativity, time and expense usually goes into devising new and innovative designs, which would increase the appeal of the product. Therefore, the object of the design registration is to see that others applying it to their goods do not deprive the originator of a profitable and innovative design of his reward. The purpose of the Designs Act is to protect novel designs to be applied to, or governing the shape and configuration of a particular article to be manufactured and marketed commercially. It is a right to prevent the manufacture and sale of articles of a design not substantially different from a registered design. The emphasis, therefore, is upon the visual image conveyed by the manufactured article. The purpose of the Act, therefore, is to preserve for the owner of the design the commercial value resulting from customers preferring the appearance of articles which have new and innovative designs reproduced upon articles on a mass scale, application being done by the industrial process or mechanical and chemical means.

The design rights may be infringed by unauthorized reproduction of the design for commercial purposes. A suitable action for infringement can be brought against the person infringing the particular design. Whether a passing off action would lie for an unregistered design is still a grey area. There are two kinds of designs, which are protected under the Designs Act. The first is in the shape of configuration or three-dimensional article. In the second, any feature of an article which appeals to the eye, like a design on a carpet, any painting or a paint on cloth. There is in fact considerable overlapping sometimes between the Copyright law and the Designs law. The duration of rights is different. So far as Copyright is concerned, the copyright is protected for a period of 60 years; designs are protected for a maximum period of 15 years.