INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
4. Trade Mark Registrations and Applications 4.1 Trade Mark Registration
• title of the work; • language of the work; • copy of the work; • name of the creator/inventor/singer/composer of the work; • address of the creator/inventor/author of the work; • nationality of the creator/inventor/author of the work; • No Objection Certificate of the author/developer; • power of attorney (draft to be provided); • whether the work is published; • if the work is published – (a) year of first publication; (b) country of first publication; (c) name, address and nationality of the publisher; • if the work is published more than once, then – (a) years of subsequent publication; (b) countries of subsequent publication; (c) names, addresses and nationalities of the pub - lishers; and • an image of the signature of the authorised signa - tory. The government fee for filing a copyright action is as follows: • artistic work: approx. USD165; • software: approx. USD8; • literary work: approx. USD8; • cinematographic work: approx. USD61; and • sound recording: approx. USD25. 3.9 Refusal of Registration At the time of filing, barring a declaration, there is no other mechanism followed by the Copyright Office to assess originality and thereafter issue a refusal. The exception to this is an artistic work, as, prior to filing a copyright application for an artistic work, a clearance is taken from the TMO on similarity of the artwork with third-party trade marks. 3.10 Related Rights No response is available for this jurisdiction.
In India, ownership of a trade mark is determined based on the first-to-use principle, and passing-off of any mark can be asserted regardless of registration status. If a mark lacks distinctiveness, it can neverthe - less be registered under Section 9 of the Trade Marks Act 1999 if it has acquired distinctiveness and/or a secondary meaning through usage. 4.2 Trade Mark Register In India, the CGPDTM controls trade mark registra - tions and registered trade marks. On its website, the Trade Marks Registry offers a free online trade mark search. All trade mark applications submitted to the TMO in India, including all registered, applied, chal - lenged and expired trade marks, are included in the database. Although it is not required, conducting a trade mark search before applying to register a trade mark is advisable. Accessing the online trade marks data - base, as well as Registrar of Companies records, domain searches and a basic internet search, can be used to do trade mark searches in India for word marks and device marks. 4.3 Term of Registration The registration of a trade mark is valid for a period of ten years and renewable every ten years, in accord - ance with the provisions of the Trade Marks Act 1999 and Trade Marks Rules 2017. Renewal of Trade Marks After Lapse of Term Trade mark owners in India can renew their registra - tions after the term has lapsed. Trade marks are ini - tially registered for ten years, and renewal is required every ten years to maintain the registration. If the owner does not renew the trade mark before its expiration, the owner can still apply for renewal during a grace period of six months following the expiration date. After the grace period, the trade mark is removed from the Register of Trade Marks, but the owner may apply
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