INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
(1) Any person who circumvents an effective techno - logical measure applied for the purpose of protect - ing any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) shall prevent any person from – (a) doing anything referred to therein for a purpose not expressly prohibited by this Act: Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete re - cord of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or (b) doing anything necessary to conduct encryp - tion research using a lawfully obtained encrypt - ed copy; or (c) conducting any lawful investigation; or (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or (e) operator; or (f) doing anything necessary to circumvent tech - nological measures intended for identification or surveillance of a user; or (g) taking measures necessary in the interest of national security. 65B. Protection of Rights Management Information Any person, who knowingly – (i) removes or alters any rights management informa - tion without authority, or (ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine:
Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil rem - edies provided under Chapter XII against the persons
indulging in such acts.” 2.4 Use in Commerce
A trade mark can be registered on a “proposed to be used” basis. There is no requirement for the mark to have been used in India to make it eligible for registra - tion in India. If, however, use of the trade mark is not commenced for a period of five years, this can be a ground for removal of the trade mark from the Register of Trade Marks. Having said that, the Honourable Supreme Court of India, in a judgment, stated that “use of a mark in regard to the goods is to be considered as a reference to the usage of the mark upon, or in any physical, or in any other relation whatsoever, and is not necessar - ily limited to physical use on goods or to the sale of goods bearing the trade mark”. 2.5 Notices and Symbols Predominantly there are three kinds of trade mark symbols: • the unregistered trade mark, represented by the letters TM; • the service trade mark, represented by the let - ters SM, which is typically used by service sector brands; and • the registered trade mark, represented by the symbol ®. The TM and SM symbols can be used with a mark by anyone who is claiming rights to that mark, regardless of having an actual trade mark registration in place. 2.6 Related Rights A trade mark can also be protected by copyright or related rights. In India, the TMO is contacted prior to the registration of a copyrightable artistic work that can also be used as a trade mark for certification that there are no trade marks on record that are similar to the copyrightable artistic work.
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