INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
1. Trade Mark and Copyright Law 1.1 Governing Law In India, trade marks are primarily governed by the Trade Marks Act 1999 and the Trade Marks Rules 2017, forming a comprehensive regulatory regime coupled with common law provisions. In addition to the statute, official guidelines issued by the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), such as the Trade Marks Manual, court precedents and decisions of the Trade Marks Office (TMO), govern several aspects of trade mark law in the country. Further, the decisions of High Courts are binding on lower courts in their respective jurisdictions and form an important source of trade mark law. There are also ancillary laws which impact trade marks, for example, the Copyright Act 1957, the Companies Act 2013 and, in limited cases, the Designs Act 2000. Copyright is governed by the Copyright Act 1957 and the associated rules. As a common law country, common law rights are recognised in India. Lastly, there are certain government guidelines or acts – such as the Ministry of Ayurveda, Yoga, Naturopa - thy, Unani, Siddha, Sowa-Rigpa and Homoeopathy (AYUSH), and the Emblems and Names (Prevention of Improper Use) Act 1950 – which impact trade mark law in the country. 1.2 Conventions and Treaties/Rights of Foreign IP Holders India is a signatory to the Paris Convention on Indus - trial Property, the WIPO Madrid Agreement Concern - ing the International Registration of Marks 1891 (the “Madrid Agreement”), the WIPO Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989 (the “Madrid Protocol”) and the Nairobi Treaty. India further abides by the Nice Agreement on the International Classification of Goods and Services,
and the Vienna Classification, established by the Vienna Agreement. For copyright, predominantly, India is a member of the Berne Convention of 1886, the Universal Copy - right Convention of 1952 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. 2. Trade Mark Ownership, Protection and Rights 2.1 Types of Trade Marks A “trade mark”, as defined by the Trade Marks Act 1999, is a mark capable of being graphically depicted and capable of differentiating one person’s goods or services from those of others, and may include the shape of goods or their packaging, as well as colour combinations. This definition of “trade mark” is inclu - sive and evolving. The following are examples of trade marks that can be registered in India: • any name (including the applicant’s or predeces - sor in business’s personal name or surname, or the person’s signature), which is not unusual for trade to use as a mark; • letters or numerals, or any combination thereof; • an invented word or any arbitrary dictionary word(s), which are not directly descriptive of the character or quality of the goods or services; • devices, including fancy devices or symbols; • slogans, domain names and monograms; • combinations of colours or even a single colour in combination with a word or device; • the shape of goods or their packaging; • marks constituting a three-dimensional sign; • sound marks when represented in conventional notation or described in words by being graphically represented; • certification and collective trade marks; service marks or trade dress; • smell marks; and • motion marks.
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