2 MARKS QUESTION

Q1. What is an artistic work?

ANS. Artistic work” means,— a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an
engraving or a photograph, whether or not any such work possesses artistic quality; a [work of architecture];
and any other work of artistic craftsmanship; as provided under Section 2(c) of the Copyright Act.

Q2. Explain the term inventive step?

ANS. An invention, so far as claimed in a claim, involves an inventive step if it is not obvious to a person skilled
in the art, having regard to any matter which forms part of the prior art base.

Q3. Explain government work?

ANS. Intellectual property rights (IPR) are the rights given to persons over the creations of their minds:
inventions, literary and artistic works, and symbols, names and images used in commerce.

Q4. What is service under the trade mark act 1999?

ANS. The Trade and Merchandise Marks Act only allows for registration of trademarks used in connection with
goods. Service marks or trade marks used in relation to services alone, such as names of travel agencies,
finance companies, airlines etc. are not registerable under the Act and are not protected.

Q5. Define the term “Collective mark”?

ANS. Collective mark is a mark used only by the members of an association, cooperative or other collective
organization. A collective organization may include an association, union, cooperative, fraternal society or
other organized groups.

Q6. What is Patent?

ANS. A patent for an invention is granted by government to the inventor, giving the inventor the right to stop
others, for a limited period, from making, using or selling the invention without their permission.

Q7. What is Mark?

ANS. A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other
enterprises. Trademarks are protected by intellectual property rights.

Q8. What is Trademark?

ANS. A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other
enterprises. Trademarks are protected by intellectual property rights.

Q9. Who is a Patentee?

ANS. A patentee is a person who is entered in the register of patents as the grantee or proprietor of a patent
for the time being.

Q10. What is the term of Copy right of a musical work?

ANS. Copyright in literary and musical work will exist for sixty years from the date of its publication or for the
lifetime of the author and sixty years from the date of his death.

Q11. Who is the author in relation to sound recording?

ANS. Sound recordings are generally created by performers and/or producers.
Q12. What is Reprography?
ANS. The reproduction and duplication of documents, written materials, drawings, designs, etc., by any process
making use of light rays or photographic means, including offset printing, microfilming, photography, office
duplicating, and the like.

Q13. State the work in which Copy right’s subsists?

ANS. Copyright subsists throughout India in the following classes of works: Original literary, dramatic, musical
and artistic works; Cinematograph films; and. Sound recordings.

Q14. Who is a Performer?

ANS. Section 2(qq) of the copyright act defines that a performer may include an actor, dancer, musician,
acrobat, singer, snake charmer, conjurer juggler, a person delivering a lecture or any other person who puts up
a performance.

Q15. Explain the term package under the trade mark act, 1999?
ANS. The Act defines package to include any case, box, container, vessel, casket, bottle, wrapper, label, brand,
ticket, frame, capsule, cap, lid, stopper and cork.

Q16. What is Patent of addition?

ANS. Patent of Addition is an application made for a patent undergoing improvement or modification of the
invention described or disclosed in the main invention for which the patentee has already applied for or has
obtained a patent

Q17. Who is a Person interested?

ANS. According to it“person interested” in relation to any immovable property includes all persons claiming or
entitled to claim an interest in the compensation payable on account of acquisition of that property.

Q18. What is the term of copyright of a literary work?

ANS. “Copyright” literally means the right to copy. Copyright is a form of protection given to the authors of
“original works of authorship,” including literary, dramatic, musical, artistic, and certain other works. This
protection is available “automatically” to both published and unpublished works.

Q19. Explain the term engravings?

ANS. Engraving was a historically important method of producing images on paper in artistic printmaking, in
mapmaking, and also for commercial reproductions and illustrations for books and magazines.

Q20. Who is the registered proprietor?

ANS. According to chapter I, section 2(V)(v), a registered proprietor is the person for the time being entered in
the register as the trademarks' etiquette.

Q21. Explain the term transmission under the trade mark act, 1999?
ANS. According to the Act, transmission means the transfer of a trademark by operation of law or devolution
on the personal representative of a deceased person, which is not an assignment.

Q22. Define invention?

ANS. An invention is a new solution to a technical problem and can be protected through patents.
Q23. What is the meaning of patented article and patented process?
ANS. A patent is an exclusive right granted for an invention, which is a product or a process that provides, in
general, a new way of doing something, or offers a new technical solution to a problem.

Q24. Explain the term design?

ANS. Design right is a territorial statutory right (enforceable only upon registration of said design), which allows
the proprietor to prevent others from producing, importing, selling or distributing products having an identical
appearance or a fraudulent or obvious imitation.

Q25. Explain Indian work?

ANS. In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is 60
years in addition to the author's lifespan. Where there are multiple authors, the term is 60 years post the death
of the last author.

Q26. Explain the term goods in Trademarks marks act, 1999?

ANS. Strong trademarks are typically creative or unique, setting you apart from your competitors. These
trademarks include fanciful, arbitrary, or suggestive trademarks. Fanciful trademarks are invented words. They
only have meaning in relation to their goods or services.

Q27. Who is composer?

ANS. According to the section 2(d)(ii) the author in relation to the musical work is a “Composer”. Whereas
according to section 2 (ffa) “Composer”, in relation to a musical work, means the person who composes the
music regardless of whether he records it in any form of graphical notation.

Q28. Who can apply for registration of a design?

ANS. A person, who has applied for protection of a Design, in any of the convention country, may file an
application for registration of the same design in India, within six months from the date of priority. This period
of six months is not extendable.

Q29. Explain the term indication?

ANS. Geographical indications (GIs) are intellectual property (IP) rights that serve to identify a product that
originates from a specific geographical area and that has a quality, reputation, or other characteristics that are
essentially attributable to its geographical origin.

Q30. Explain the term article?

ANS. The Convention contains 30 Articles dealing with various aspects and types of industrial property including
patents, trademarks, service marks, utility models, industrial designs, geographical indications, and the
repression of unfair competition
 6 MARKS QUESTION

Q1. Venugopal is a Manufacturer of tennis racquets and wants to use the name “Rocket” as his trademark.
He applies for a trademark registration to the registrar of trademarks.
1. Will venugopal succeed to register the name “Rocket” as a trademark for his goods?
Ans. Mr. Venugopal will not succeed in registering the name "Rocket" as a trademark for his goods.
2. State and explain the provisions of the law involved.
ANS. Section 9 (3) lays down the grounds for refusal of registration of a trademarks. And the ground on which
the registration of the above name "Rocket" can be refused by the Registrar is a) Trademark consists exclusively
of shape of goods which results from the nature of the goods themselves, or b) the shape of goods which is
necessary to obtain a technical result: or c) the shape which gives substantial value to the goods.

Q2. A film producer makes a cinematographic adaptation of a book without consent of the author.
1. Is he permitted to do so under the copyright act. 1957?
Ans. No, a film producer without obtaining the consent of the author who is the first owner of copyright
(Section 17) cannot do so under the Copyright Act, 1957, Copyright subsists in a original literary work (1.e.
book) written by the author
2. What is copyright infringement?
ANS. In this case, the reproduction of a literary work in the form of a cinematographic adaptation (i.c.
conversion of literary work in a dramatic work) without the consent of the first owner of the copyright (ie.
author) amounts to copyright infringement.

Q3. Mr. X bequeaths to Mr. Y a manuscript of a literacy work by testamentary disposition

1. What are rights of “Y” if “X” dies before publishing the literacy work?
Ans. In such a case, Y has a copyright in manuscript by testamentary disposition, unless the contrary intention
is indicated in the testator's will..
2. Explain the provision of law involved in the above case?
ANS. Section 20 of the Copyright Act states that "Where under a bequest a person is entitled (i.e Y in this case)
to the manuscript of a literary work, etc., and the work was not published before the death of the testator (ie. X
in this case), the bequest shall, unless the contrary intention is indicated in the testator's will, it shall be
construed as the testator was the Owner of the copyright immediately before the death. And thus, he can
bequeath it to any person.

Q4. A teacher in the course of instruction reproduces the literacy works of an Indian author for the benefit of
student without the consent of the author
1. Has the teacher committed any offences under the copyrights act,1957 and state the penalty if any?
Ans. No, the teacher in this case, has not committed any infringement of a copyright. Under the Copyright Act,
1957.
2. State and explain the provision of law
ANS. Under Section 52 of the fair use of any literary work, etc. or fair dealing with literary work, etc. for
educational, teaching purpose including research and criticism shall not amount the infringement of the
copyright
Q5. Mr. X obtains an admixture of the properties of cement and sand discovers that the substance so
obtained is very effective for construction purposes. Mr X desires to apply for a patent for the same.
1. Will Mr X succeed to get a patent?
Ans. No Mr. X will not succeed in getting patent in this case.
2. State and explain the mandatory requirement to be considered for registration as patent.
ANS. The provision in the Patent Act. 1970 is provided under Section 3 (e) which states that a substance
obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or
a process for producing such substance. A mandatory condition for getting the patent registered is it must be
an invention of a "new". "useful" product. "Novelty is the test of invention"

Q6. A dancer enchants the audience with dance movements. Mr. X makes a visual recording of the dance
movements with the permission of the dancer and exhibits the same to his friends on payment of charges
1. State the technical terms which would define the dancer and the dance movements.
Ans. The technical terms which would define 'dance and the dance movements" is 'performer which includes
an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or
any other person who makes a performance-[Section 2 (qq)), and he is also an "author" in relation to an artistic
work other than a photograph, the artist-Section 2 (d) (iii) of the Copyright Act, 1957.
2. Has Mr. X Committed any offence under the copyright Act 1957, if yes, state the penalty
ANS. Yes, Mr. X has committed an offence of Infringement of Copyright. He shall be punished with
imprisonment for a term which shall not be less than 6 months, but which may extend to 3 years, and with fine
which shall not be less than Rs 50,000 but which may extend to Rs. 2 Lakhs.

Q7. Mr. Ram wants to use the mark "Bata" as his trade mark for his soaps and applies for registration of the
mark “Bata”, to the Registrar of Trade Marks.
1. Will Mr. Ram Succeed to get the mark registered?
Ans. No, Mr. Ram cannot get the Mark registered as "Bata". Because it is devoid of distinctive character (ie.
Bata is already a famous registered trade mark), and therefore, it is an absolute ground for refusal for
registration.

2. State and explain the Doctrine involved

ANS. Dotrine of Absolute Prohibition.

Q8. On a visit to the African Tropical Forests Mr. Z discovered that the Negeri Tribe hunts with very effective
Spears, Mr.Z imitates the spear & applies for patent.
1. Will Mr. Z, Succeed to get a patent?
Ans. No, Mr z cannot get patent for the spear.

2. State and explain the provision of law involved

ANS. Under Section 2 (1) (1) of the Patents Act, 1970, a patent may be granted to an invention of product or
process which is "new" and "useful". "Novelty" is the test of "invention" under this Section. The imitation of the
spear is neither novelty not invention. According to Section 3 (b) of the Act, it is not an invention.
 5 MARKS QUESTION
Q1. Rights and Liabilities of copyright securities
ANS. "Copyright Society" means, a society registered under Sub-Section 3 of Section 33 (Explanation) i.e.
registration of Copyright Society and Section 34: Administration of rights of owner by Copyrights Society
Copyright is legal protection for authors, playwrights, musicians, and artists. They gain exclusive rights
to reproduce, duplicate, and delegate work. These can also delegate authority to another entity. Copyright
registration is vital since it establishes you as the legitimate owner of the production’s right. You then have
complete influence over public communication, reproduction rights, and any modifications or interpretations
of the materials.

Q2. Mareva Injunction

ANS. It is an order by which the Court has power to freeze defendants assets, when there is possibility of the
assets beings dissipated or cancelled, so as to make a judgement against him worthless and unenforceable.
Mareva injunction is to protect the interests of the plaintiff during the pendency of the suit and is
granted to restrain the defendant from disposing of their assets within the jurisdiction until the trial ends or
judgment in the action for infringement is passed.

Q3. Complete Specification

ANS.
Complete Specification of Patent is a techno-legal document which particularly and fully describes the
invention and also discloses or reveals the best technique of performing the invention. In the Patent
proceedings, a Complete Specification is an important document; it is advised to the applicant that Complete
Specification is required to be drafted with the highest care and should be without any ambiguity.
It is compulsory on the part of the applicant to disclose particularly and fully numerous features
establishing the invention. The disclosures of an invention in a Complete Specification should be such that a
person of average knowledge and skill in India should be able to perform the invention of the applicant based
on the descriptions and other required details that are disclosed in the Complete Specification of a Patent by
the applicant.

Q4. Priority date

ANS. Every patent shall be dated as of the date on which the complete specification was filed. The date of
every Patent shall be entered in the register No suit or other proceeding shall be commenced or prosecuted in
respect of an infringement committed before the date of advertisement of the acceptance of the complete
specification (Section 45)
Priority Date There shall be a priority date for each claim of a complete specification where a
complete specification is filed in pursuance of a single application accompanied by al provisional specification
or b) a specification which is treated by virtue of a direction under Section 9 (3) as a provisional specification,
and the claim is fairly based on the matter disclosed in the specification referred to and the claim is fairly based
on the matter disclosed in the specification referred to in clause a) or clause b) the priority date of that claim
shall be the date of filing of the relevant specification.
Q5. Qualities of a Good Trademark
ANS.
 A Trademark should be a mark that entails a device, label, signature, name, brand, letter, word, a
combination of color, or integration of the above attributes.
 It should be easy to recognize, spell, and speak so that the masses can acknowledge it in a quick flash.
 It should not be too lengthy & perplexing to be forgotten easily. If the trademark is complicated to
acknowledge, the masses will not take effort to memorize it & eventually, it will be forgotten.
 Trademark must adhere to distinctiveness. Keep in mind that uniqueness is one of the key attributes of
a good trademark.
 The best trademarks are generally referred to invented or coined words or distinctive geometrical
designs.
 It should not reflect the product’s description; instead, it should be suggestive of the quality. It is one of
the key attributes of a good trademark.
 A good trademark should be excluded from the list of the prohibited class mentioned under the
Trademark Act.

Q6. Function of Trademark

ANS.
Indication as to the manufacture or quality of goods-
-The function of the trade mark, is to give an indication to the purchaser or possible purchaser, as to the
manufacture or quality of goods.
Trade Sources or Trade Hands-
- To give an indication to his eye of the trade source from which the goods come or the Trade- Hands, when
they pass on their way to the market.
Tells the buyer -something known to him-
It tells the buyer, what he has been presented, is something known to him under similar name or coming from
a source which he is acquainted with.
Assurance of the make and quality
-It gives the purchaser, a satisfactory assurance of the make and quality of the article he is buying.
Main Functions-
Under modern business conditions, trade mark functions are:-
i) It identifies the Product and its Origin
ii) It guarantees its unchanged Quality.
iii) It Advertises the product.
iv) It creates an Image for the product.

Q10. Collective mark

ANS. A collective trademark, collective trade mark, or collective mark is a trademark owned by an
organization (such as an association), used by its members to identify themselves with a level of quality or
accuracy, geographical origin, or other characteristics set by the organization.
Section 2 (g) "Collective mark means, a trade mark distinguishing the goods or services of members
of an association of persons which is the proprietor of the mark from those of others. The association of
persons, however, includes partnership within the meaning of Indian Partnership Act, 1932
Q7. Compulsory Licensing in Patents
ANS. These provisions are to be complied by a particular Authority.
 Powers have been given to the particular Authority - i.e. the Controller of Patents under the Patent Act
 Under what circumstances, compulsory licence has to be granted?
If the Patent is not worked, so as to satisfy the reasonable requirements of the public at a reasonable price, the
Controller may grant compulsory licence to any other person to work the patent
 In this case, the Controller can give licence, here the licensee can part with the patent (licence of right),
but with the endorsement (permission) by the Controller of patents.
This is called the 'Licence of Right'.
 The Controller will, accordingly, specify the terms and conditions as to what royalty has to be paid to
the patentee, etc., according to compulsory licence

Q8. Certification Trademark

ANS. Certification marks are essentially trademarks that are used to certify that the goods or services on which
they are affixed comply with certain quality standards prescribed by a certifying entity. Such certifying entities,
upon the fulfilment of these quality standards, license the certification mark to be used. By indicating that
certain standards are met (eg, in respect of origin, material, mode of manufacture of goods or performance of
services, quality or accuracy) a certification mark plays the crucial role of instilling legal assurance and acts as
evidence that such goods or services are up to certain standards and quality. Due to its characteristic of
essentially instilling confidence among consumers, a certification mark is often referred to as a "mark of
validity" or a "mark of assurance".

Q9. Right and Obligation of a patentee

ANS. Subject to other provisions contained in the Patents Act, 1970, and the conditions specified in Section
47, a potent granted under this Act shall confer upon the patentee –
a) where the subject matter of the patent is a product, the exclusive right to prevent third parties, who
do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes
that product in India;
b) where the subject matter of patent is a process, the exclusive right to prevent third parties who do not
have his consent, from the act of using that process, and from the act of using, offering for sale, selling or
importing for those purposes the product obtained directly by that process in India.

Q13. Patent of Addition

ANS. Patent of Addition is an application made for a patent undergoing improvement or modification of the
invention described or disclosed in the main invention for which the patentee has already applied for or has
obtained a patent. The applicant or patentee must be the same for the main invention and the improvement/
modification and according to the provision it says that if the improvement/ modification involve an additional
applicant, a patent of addition may not be pursued.
Patent of Addition enables the applicants and patentees to apply for an improvement or modifications
made on the invention disclosed in the complete specification. The improvement must be more than a mere
workshop improvement. The Patent of Addition protects the novel, industrial applicability and non-inventive
improvements or modifications to an already filed or granted patent application.
Q11. Anticipation
ANS. (1) An invention claimed in a complete specification shall not be deemed to have been anticipated by
reason only that the invention was published in a specification filed in pursuance of an application for a patent
made in India and dated before the 1st day of January, 1912.
(2) Subject as hereinafter provided, an invention claimed in a complete specification shall not be
deemed to have been anticipated by reason only that the invention was published before the priority date of
the relevant claim of the specification, if the patentee or the applicant for the patent proves—
(a) that the matter published was obtained from him, or (where he is not himself the true and
first inventor) from any person from whom he derives title, and was published without his consent or the
consent of any such person; and
(b) where the patentee or the applicant for the patent or any person from whom he derives title
learned of the publication before the date of the application for the patent, or, in the case of a convention
application, before the date of the application for protection in a convention country, that the application or
the application in the convention country, as the case may be, was made as soon as reasonably practicable
thereafter:
Provided that this sub-section shall not apply if the invention was before the priority date of the
claim commercially worked in India, otherwise than for the purpose of reasonable trial, either by the patentee
or the applicant for the patent or any person from whom he derives title or by any other person with the
consent of the patentee or the applicant for the patent or any person from whom he derives title.
(3) Where a complete specification is filed in pursuance of an application for a patent made by a
person being the true and first inventor or deriving title from him, an invention claimed in that specification
shall not be deemed to have been anticipated by reason only of any other application for a patent in respect of
the same invention made in contravention of the rights of that person, or by reason only that after the date of
filing of that other application the invention was used or published, without the consent of that person, by the
applicant in respect of that other application, or by any other person in consequence of any disclosure of any
invention by that applicant.

Q12. World Trade Organization

ANS. The Uruguay Round achieved that. The WTO’s TRIPS Agreement is an attempt to narrow the gaps in the
way these rights are protected and enforced around the world, and to bring them under common international
rules. It establishes minimum standards of protection and enforcement that each government has to give to
the intellectual property held by nationals of fellow WTO members.
Under the TRIPS Agreement, WTO members have considerable scope to tailor their approaches to IP
protection and enforcement in order to suit their needs and achieve public policy goals. The Agreement
provides ample room for members to strike a balance between the long term benefits of incentivising
innovation and the possible short term costs of limiting access to creations of the mind. Members can reduce
short term costs through various mechanisms allowed under TRIPS provisions, such as exclusions or exceptions
to intellectual property rights. And, when there are trade disputes over the application of the TRIPS Agreement,
the WTO’s dispute settlement system is available.
 12 MARKS QUESTION
Q1. Define the term Broadcast and performer discusses the right of the Broadcasting Organization &
performer?
ANS.
Define performer
“The term “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a
person delivering a lecture or any other person who makes a performance.”

Define broadcast
As per Section 2(dd) of the Copyright Act 1957, "broadcast" is defined as communication to the public by any
means of wireless diffusion (whether in any one or more of the forms of signs, sounds or visual images; or by
wire, and includes a re-broadcast.

Right to Broadcast the Performance –

Performer has been given the sole right to decide if he wants to communicate his performance to the general
public.9
Performer can also choose to stop the broadcasting of his work, if the work been broadcasted is different from
the work for which his consent has been taken to broadcast. Moreover, if the broadcast is without the consent
of the performer, the broadcast will be considered illegal under the act.
However, the work that is being broadcast or communicated to the public must not include entire or any part
of the performance which has already been broadcasted by the performer or the broadcasting organization.

Right to The Broadcasting for A Term –

Just like performer’s right has been granted for an entire term, similarly, broadcaster’s rights have also
been provided for an entire term. The broadcast reproduction right shall subsist until ‘twenty-five years’ from
the beginning of the calendar year next following the year in which the broadcast is made.15
The Amendment Act of 2012 might have introduced the affirmative rights for the performer by
omitting the provisions in which negative rights were given but the same is not the case with the rights of the
broadcasting organisation. Rights protecting the broadcaster are given in the form of the infringements that
would be considered during the continuance of the broadcast reproduction right, with regards to the
broadcast.
Any person who has not obtained the licence from the owner of the work and does any of the following
acts, in regards to the broadcast or any substantial part of it will deemed to have infringed broadcast
reproduction right of the broadcaster : 16
(a) re-broadcast the broadcast
(b) causes the broadcast to be heard or seen by the public on payment of any charges
(c) makes any sound recording or visual recording of the broadcast.
(d) makes any reproduction of such sound recording or visual recording where such initial recording was done
without licence or, where it was licensed, for any purpose not envisaged by such licence
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual
recording referred to in clause (c) or clause (d), subject to the provision of Section 39.
Q2. Discuss the role of IPR in economic development?
ANS.
The subject of how Intellectual Property Rights influence the procedures of monetary improvement and
its development is mind-blowing and dependent on different factors. In principle, more grounded frameworks
for the insurance of licensed innovation could either improve or constrain monetary development. Eventually,
the proof is rising that more grounded and increasingly certain licensed innovation law could well build the
monetary development and cultivate advantageous change, along these lines improving formative possibilities,
on the off chance that they are organized in a way that advances compelling and dynamic challenges.
As the worldwide assurance system reinforces because of Trade-Related Aspects of Intellectual
Property Rights, various inquiries emerge about the effect on possibilities of financial development. For a ton of
reasons, it is unimaginable to unhesitatingly say that the new system will raise monetary development and
improve the advancement process. There are two significant reasons. First to start with, numerous factors
influence the development of manners that can command the effect of TRIPS. Second, the monetary
hypothesis brings up that licensed innovation rights could have a lot of consequences for development, some
positive and some negative.
For any business to cut a specialty for itself, development has become the spine, particularly in the
serious condition today. Development clears the way for the making of licensed innovation and utilizing this
protected innovation gives your business a serious edge while additionally contributing enormously to its
prosperity. Protected innovation is an important asset for every single business, particularly those contributing
huge totals of cash towards innovative work so as to make one of a kind items and administrations.
To receive the financial rewards of IPR, organizations ought to proactively execute licensed innovation
arrangements. This permits them to distinguish novel, one of a kind manifestations and furthermore increment
their income. It is likewise essential to characterize the licensed innovation objectives plainly as it can assist
organizations with accomplishing their business goals.
As business livelihoods develop, IP engineers can make techniques to ensure the special parts of their
manifestations. Advancements can be additionally cultivated by investigating more up to date geologies. To
accomplish this, organizations can go into authorizing bargains or potentially joint dares to produce novel
arrangements that can fulfill the necessities of their objective clients.
Q3. Distinguish between passing off and infringement under the trade mark law?
ANS.
Difference Between Infringement and Passing Off:

1. Remedy:
 An action for infringement is a statutory remedy
 An action of passing off is a common law remedy
2. Applicable to:
 An action for infringement is applicable to Registered Trade Mark
 An action of passing off is applicable to Unregistered Trade Mark.
3. Goods:
 The defendant must use the infringing mark on the same goods on which the plaintiff's mark is
registered.
 The defendant's goods need not be the same, they could allied or different
4. Use of Identical or Similar Mark:
 In infringement, the Marks are identical or deceptively similar, it constitutes infringement nothing
further needs to be proved.
 In Passing off, the marks used may be identical or similar, but still further proof is required to show
that, the use of the mark is likely to deceive or cause confusion.
5. Terms:
 Infringement action applies only to goods.
 Passing off action applies to any business, or profession, or services.
6. Based on:
 Infringement action is based on property acquired by registration of Trade Mark and the use is not
relevant. Passing off action is based on property acquired by good-will by use of the Trade Mark
7. How it takes place :
 An infringement takes place, by use of the registered Trade mark or a deceptively similar mark by
unauthorised person
 A passing off takes place, when the defendant uses get up colour scheme, shape of goods, so as to pass
off his goods as that of another.
8. Additional Matter:
 In infringement, if the defendant shows that, he used additional matter to the registered Trademark, so
as to indicate a different trade source, it is irrelevant, and he will yet be held liable.
 But in passing off, the defendant may set off the plaintiff's objection by showing that, he used
additional matter to clearly distinguish the goods from that of the mplaintiff's
9. Need not Lead to:
 Infringement need not, necessarily lead to passing off
 Passing off by use of mark need not necessarily lead to infringement
10. Injury:
 In Infringement - the use of the registered Trademark by the defendant, need not cause any injury or
damage to the plaintiff. In passing off, the use of the mark by the defendant, should be likely to cause
injury or damage to the plaintiff's good-will
Q4. All invention is not eligible for grant of patents explain?
ANS. Inventions not Patentable or what are not inventions
Section 3- -Following are the 12 cases of Invention to which Patent right will not be granted
1) Frivolous or Obvious or Contrary to Natural Law:
An Invention which is frivolous or which is obvious or which claims anything obvious or contrary to well
established natural law
2) Contrary to Morality (Public Health/Law):
An invention, the primary or intended use of which would be contrary to law or morality or injurious to public
health
3) Discovery of a Scientific / Abstract Theory:
The mere discovery of a scientific principle or the formulation of an abstract theory.
4) Method of Agriculture or Horticulture.
5) Invention Relating to Atomic Energy.
6) Mere Discovery of New Property or New use:
A mere discovery of a new property or a new use of a known substance, or of the mere new use of known
process, machine or apparatus, unless such known process results in a new product or employs at least one
new reactant
7) Mere Admixture:
A substance obtained by mere admixture resulting only in the aggregation of the properties of the components
thereof, or a process for producing such substance
8) Mere Arrangement or Rearrangement:
A mere arrangement or rearrangement or duplication of known devices, each functioning independently of one
another in a known way.
9) Method or process of Testing:
A Method or process of testing applicable during the process of manufacture for rendering the machine,
apparatus or other equipment more efficient, or for the improvement of restoration of the existing machine,
apparatus or other equipment, or for the improvement of control of manufacture
10) Medical Treatment of Humans / Animals/Plants
A process of the Medical. Surgical, Curative, Prophylactic treatment (treatment serving to protect from disease,
eg vaccine) or other treatment of human beings, or any process for a similar treatment of animals or plants to
render them free of disease or to increase their economic value or that of their products:
Q5. Explain the limitations on the rights of a patentee?
ANS.
Meaning of Patent: Patent is a monopoly right granted to a person who has i) invented a
ii) Induce an inventor to disclose his discoveries. iii) Reward for the expenses of developing inventions.
iv) Inducement to invest capital.
v) Period of the patent.
vi) What is sealing and what is granting ?

Rights of a Patentee:
1) Right to exploit the Patent.
2) Right to assign and licence.
3) Right to surrender the Patent.
4) Right before sealing.
5) Right to apply for Patent of Addition
6) Right in case of infringement, etc.
Obligations of a Patentee:
i) It is the duty of the Patentee to work the Patent
ii) Patentee should submit periodical statement to the Controller as to the work of invention on commercial
basis in India, etc

Q6. Discuss Marks which cannot be registered?

ANS. The marks that are not distinctive enough from other marks and which cannot be registered as a
trademark are called Non-Registrable marks. This means that the mark has failed to differentiate itself from
other goods and services. Hence, trademark registration cannot be obtained for non-registrable marks.

Examples of Non-Registrable Marks

 Marks that cannot be accepted according to the law of Trademark Act.
 Marks that mislead or tends to cause confusion to the public.
 Marks consist of subject matter that hurt the religious senses of any class or sections of the Indian
citizens.
 Marks that contain improper or vulgar subject matter.
 Marks that are banned under the Emblems and Names of Prevention of Improper Use Act, 1950.
 Marks of the goods whose shapes are directly obtained from the nature of the goods.
 Marks of the goods whose shapes are important to acquire a technical result.
 Marks that are similar in identity to another good or product.
Q7. Copyrights are a bundle of right explains?
ANS. Over the years, Copyright law has evolved as the guardian of artistic rights of authors who put their
blood, sweat and tears into creating original works. The Copyright Act, 1957, under Section 14, enlists certain
rights that can be enjoyed by the copyright holder and grants moral rights under Section 57. They can be
classified into economic rights and moral rights. These rights are distributed evenly in all fields where copyright
may be granted, with minor exceptions. Here, we discuss the right of reproduction, performance, publication,
audio-visual expression, translation and adaptation which are economic rights; the right to paternity and
integrity which are moral rights.
Economic Rights:
1. The Right of Reproduction: The right of reproduction commonly means that no person shall make one
or more copies of a work or of a substantial part of it in any material form including sound and film
recording without the permission of the copyright owner. The most common kind of reproduction is
printing an edition of a work. Reproduction occurs in storing work in the computer memory.
2. The Right of Publication or Communication to Public: Communication to the public means making any
work available for being seen or heard or otherwise enjoyed by the public directly or by any means of
display or diffusion. It is not necessary that any member of the public actually sees, hears or otherwise
enjoys the work so made available. For example, a cable operator may transmit a cinematograph film,
which no member of the public may see. Still, it is a communication to the public. The fact that the
work in question is accessible to the public is enough to say that the work is communicated to the
public.
3. The Right of Performance: the authors have the right to generate revenues through performances.
Concerts and world tours by singers is an example. These performances can be executed in public and
private forms.
4. The Right of Audio-Visual Expression: This right confers the author to represent his/her work in audio-
visual format, commonly referred to as the cinematographic expression. The author holding rights in
the literary, dramatic and musical works including sound recording also has the right to make the
cinematographic film by using those works.
5. The Right of Translation and Adaptation: Adaptation involves the preparation of new work in the same
or different form based upon an already existing work. The Copyright Act defines the following acts as
adaptations:
 Conversion of a dramatic work into a non-dramatic work
 Conversion of a literary or artistic work into a dramatic work
 Re-arrangement of a literary or dramatic work
 Depiction in a comic form or through pictures of a literary or dramatic work.
 Transcription of a musical work or any act involving re-arrangement or alteration of existing work.
Moral Rights:
Moral rights generally include the right to paternity and the right to integrity.
1. Right to Paternity: As the “creator” of a work, the author can claim ownership over their work and prevent
others from claiming ownership have the work attributed to them.
2. Right to Integrity: this right allows the author to claim damages in the case when someone tries to damage
the reputation of the work, mutilate, modify or alter his work inappropriately which may cause harm to the
work and the author.
Q8. Discuss the law of passing off with case law?
ANS. Passing off action, is a common law remedy, available to the proprietor of an unregistered Trade mark

Passing Off
Means, a person tries to pass off his goods or business, as that of the goods or business of another person, by
whatever means, so that, the result may be achieved. "No man is entitled to represent that, his goods are the
goods of another man, and no person is permitted to use a mark, whereby without making a direct false
representation to the purchaser, he thereby, lies to the customer".

Case Law:
Singer vs. Loog-
 The basis of passing off action is false representation.
 The object of passing off action, is to restrain a trader from passing off his goods, as and for, the goods
of another trader.
 The basis of such an action, is the deception and false representation by the defendant, in regard to the
trade origin of the goods.

How Passing - Off may be done?

Passing off may be done by.-
1) Direct false representation.
2) Adaptation of a trademark which is the same. - or colourable imitation of the trade mark of the rival traders.
3) Adaptation of an essential part of the rival traders name
4) Copying the colour scheme of the label. 5) Imitating the design or shape of goods.

Purpose of test of passing off:

The purpose of test of passing off, is to protect commercial goodwill, - to ensure that people's business
reputation is not exploited.

Essential characteristics which must be present:

In order to create a valid cause of action of passing off. Justice, Loog Diplock, in Advocates Case, has spelt out
the essential characteristics in the following Case

Case Law:
Warnik v/s. Towned-
1. Misrepresentation:
2. Made by a person in the course of trade;
3. To prospective customers of his, or ultimate consumers of the goods supplied by him:
4. Which is calculated to injure the business or good will of one trader; or services
5. Which causes actual damage to the business or good will of one trader by whom the action is brought
Q9. Which are the acts which do not amount to infringement of copyrights?
ANS.
he protection of copyright given to the owner or the licensee is not absolute. It is subject to certain exceptions
and restrictions. Section 52 of the Copyrights Act gives an elaborate list of certain acts not constituting
infringement of copyright, viz.
i) Fair dealing
ii) Making of copies/adaptation of computer programmes for specific purposes.
iii) Reporting of current events.
iv) Reproduction in connection with judicial proceedings.
v) Reproduction for legislative purposes,
vi) Reproduction to make certified copies.
vii) Publication for use of educational institution.
viii) Performance of literary works
ix) Publication of public lecture.
x) Production or publication of translation of Acts of legislature or Rules, etc
Q10. Explain the effects of registration of Geographical Indication?
ANS.
 The exclusive right to use the GI
The exclusive right to use the GI shall only be granted to the authorized users of the GI. The list of authorized
users is provided on the official website. For example, there are two authorized users of the Nagpur orange.
Thus, the authentic Nagpur orange can be produced only by those users who are listed on the official website.
Any person other than the authorized user claiming to produce the orange within the described geographical
location shall infringe the right of the authorized users. However, this exclusive right is subject to any
conditions and limitations.
 Passing off Geographical Indication
A suit for infringement of GI can be initiated only by the registered proprietor or authorized user of the
registered GI. In the case of an unregistered GI, the action of passing off can be initiated by the user whose
rights have been violated. This remedy is available for unregistered users and shall protect the goodwill, and
reputation of the users against any unfair trade practices.
 Infringement of Geographical Indication
It is the right of the registered proprietor and authorized users of the GI to receive relief if their registered GI
has been infringed. A GI tag is infringed by an unauthorized user in the following circumstances:
The GI has been used to represent particular goods such that the goods are produced somewhere other than
their original place.
The GI is used by any unauthorized user such that the act constitutes unfair competition. An act of unfair
competition is when the act is contrary to the honest practices set in the industry. These acts may include
causing confusion or falsely accusing in the course of trade regarding the goods or establishment or commercial
practices of a competitor, or misleading the public about the characteristics, manufacturing process, quantity,
quality, etc. of GIs.
In special circumstances, the Central Government may also grant additional protection. The circumstances
under which the protection is granted shall include:
 a false representation of GI tag on goods that do not belong to that particular geographical area,
 where the GI tag is used to mislead the consumers regarding the origin of such goods,
 when the GI tag is accompanied by expressions like ‘kind’, ‘style’, or like expression by an unauthorized
user.
These circumstances are considered an infringement of GI. The request for additional protection shall be made
by submitting Form GI-9(A).
 Prima Facie Evidence
The certificate of registration of GI shall act as prima facie evidence validating the GI for all the purposes before
the appropriate court. Thus, the GI does not need additional evidence to prove its authenticity. However, the
rights conferred upon an unregistered GI shall not be affected by the non-availability of a certificate of
registration.
 Protection of GI from third-party agreement
Another effect is that the registered GI cannot be a part of any third-party agreement like assignment,
transmission, licensing, pledge, mortgage, etc. The only option available by the authorized user to involve any
third party is on the occasion of the death of the authorized user. In such cases, the rights are passed on to the
successors of the deceased authorized users.
Q11. Explain revocation of a Patents?
ANS.
There are various modes of revocation of a Patent, namely:

1. Revocation of Patent in public interest, by the Central Government.

2. Revocation of Patent relating to atomic energy, by the Controller.
3. Revocation for non-working.
4. Revocation by the High Court, on petition for failure to comply with the requirements of the Central
Government to use the invention.
5. Revocation by the High Court, on petition by a person interested on various specified grounds. The
most common form of revocation is the last one.

Revocation by an Interested Person:

Only a "person interested" can make an application for revocation.

This includes a person-
 Who has manufacturing or trading interest in the patented article; or
 Who has financial interest in concerns manufacturing such articles; or Who possesses patents relating
to the same subject; or
 Who is engaged in research in the same field as the invention relates
 Also a defendant in a suit for infringement, can counter claim for revocation.

Grounds for Revocation :

There are three classes of grounds for the revocation of a patent.

They are as under
I. Grounds relating to right of the patentee and his conduct
II. Grounds relating to the invention and its quality
III. Grounds relating to the description of the invention

(i) Grounds relating to the right of the Patentee and his conduct:
These are the following –

 Patentee is not entitled to the Patent.

 Patent wrongfully obtained as against the person entitled.
 iii) Patent obtained by false suggestion or representation
 Failure to disclose information regarding foreign applications.
 Non compliance with direction for secrecy.
 vi) Amendment of specifications obtained by fraud.
 (ii) Grounds relating to the invention and its quality :
The following grounds come under this category
 Subject of claim, not an invention.
 Subject claim, not a patentable invention.
 Invention claimed was secretly used before the priority date.
 Invention claimed already the subject of a prior grant.
 Invention claimed lacks novelty, having regard to prior knowledge or prior use.
 Invention is obvious and does not involve inventive step having regard to prior knowledge or prior use.
 Invention not useful.

(iii) Grounds relating to the description of invention-

a) Invention not sufficiently described - and the best method of performing it, not disclosed.
b) Claims not clearly defined or not fairly based

 Invention not sufficiently described:

 Non-Disclosure of the best method known:
 Claim not clearly defined or not fairly based
 Claim not fairly based
Q12. Explains the nature and scope of IPR?
ANS.
Nature of intellectual Property
Intangible Rights over Tangible Property: The main Property that distinguishes IP from other forms
of Property is its intangibility. While there are many important differences between different forms of IP, one
factor they share is that they establish property protection over intangible things such as ideas, inventions,
signs and information whereas intangible assets and close relationships are a tangible object. In which they are
embedded. It allows creators or owners to benefit from their works when they are used commercially.
Right to sue: In the language of the law, IP is an asset that can be owned and dealt with. Most forms
of IP are contested in rights of action that are enforced only by legal action and by those who have rights. IP is a
property right and can, therefore, be inherited, bought, gifted, sold, licensed, entrusted or pledged. The holder
of an IPR owner has a type of Property that he can use the way he likes subject to certain conditions and takes
legal action against the person who without his consent used his invention and can receive compensation
against real Property.
Rights and Duties: IP gives rise not only to property rights but also duties. The owner of the IP has
the right to perform certain functions in relation to his work/product. He has the exclusive right to produce the
work, make copies of the work, market work, etc. There is also a negative right to prevent third parties from
exercising their statutory rights.
Coexistence of different rights: Different types of IPRs can co-exist in relation to a particular
function. For example, an invention may be patented, and the invention photograph may be copyrighted. A
design can be protected under the Design Act, and the design can also be incorporated into a trademark. There
are many similarities and differences between the various rights that can exist together in IP. For example,
there are common grounds between patent and industrial design; Copyright and neighbouring rights,
trademarks and geographical indications, and so on. Some intellectual property rights are positive rights; the
rest of them are negative rights.
Exhaustion of rights: Intellectual property rights are generally subject to the doctrine of exhaustion.
Exhaustion basically means that after the first sale by the right holder or by its exhaustion authority, his right
ceases and he is not entitled to stop further movement of the goods. Thus, once an IP rights holder has sold a
physical product to which IPRs are attached, it cannot prevent subsequent resale of that product. The right
terminates with the first consent. This principle is based on the concept of free movement of goods which is in
force by consent or right of the rights holder. The exclusive right to sell goods cannot be exercised twice in
relation to the same goods. The right to restrict further movements has expired as the right holder has already
earned his share by the act of placing goods for the first sale in the market.
Dynamism: IPR is in the process of continuous development. As technology is rapidly evolving in all
areas of human activities, the field of IP is also growing. As per the requirement of scientific and technological
progress, new items are being added to the scope of IPR, and the scope of its preservation is being expanded.
Bio Patents, Software Copyrights, Plant Diversity Protection, these are few names which reflect contemporary
developments in the field of IPR. The importance of intellectual property and its mobility is well established and
reflected at all levels, including statutory, administrative and judicial.
Scope of intellectual Property
The scope of IP rights is broad; two classification modes are used to determine whether IP is copyright
or Industrial Property. Industrial properties include patents or inventions, trademarks, trade names,
biodiversity, plant breeding rights and other commercial interests. A patent gives its holder the exclusive right
to use the Intellectual Property for the purposes of making money from the invention.

An invention is itself a new creation, process, machine or manufacture. Having copyright does not
give you the exclusive right to an idea, but it protects the expression of ideas that are different from a patent.
Copyright covers many fields, from art and literature to scientific works and software.

Even music and audio-visual works are covered by copyright laws. The duration of copyright protection
exists 60 years after the death of the creator. In other words, an author’s book is copyrighted for his entire life
and then 60 years after his death. Unlike patent laws, there is no requirement of the administrative process in
copyright laws.
Q13. Discuss the ground of refusal of registration of trademark under the trade mark acts 1999?
ANS.
[A] Basic Qualification for Registerability of Trade Mark -
1. Capable of being represented Graphically,
2. Capable of distinguishing the goods or services of one person, from those of others.

[B] Marks not Registerable -

There are five categories of such marks, which are not registerable. They are as under
1) Will deceive the public or cause confusion :
2) Mark likely to hurt religious feelings :
3) Obscene/Scandalous Marks:
4) Prohibited under Emblems Acts:
5) Shape of goods purely functional or which results from the nature of goods themselves:

[C] Registration can be refused on certain grounds:

There are two categories of grounds on which, registration can be refused. They are
 Absolute grounds of Refusal
 Relative grounds of Refusal.

Absolute grounds of Refusal :

The following three circumstances, are considered to be absolute grounds for refusal of registration. They are-
 A trade mark which is not capable of distinguishing goods or services of one person, from those of
others.
 A Trade mark which indicates quality or other descriptive character of goods or services.
 A Trade mark which has become customary invention current language or invention the bona fide or
established practice of trade -This may relate to generic names or marks, common to the trade.

Relative Grounds:
 A mark, which is identical or similar to an earlier Trade mark, and the respective goods or services are
identical or similar.
 A mark, which is identical or similar to an earlier Trade mark, and the respective goods or services are
not identical or similar.