INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
Act: Provided that any person facilitat - ing circumvention by another person of a technological measure for such a purpose shall maintain a complete record 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 encryption research using a lawfully ob - tained encrypted copy; or (c) conducting any lawful investigation; or (d) doing anything necessary for the pur - pose 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 technological measures intended for iden - tification or surveillance of a user; or (g) taking measures necessary in the interest of national security.” “65B. Protection of Rights Management Infor - mation – Any person, who knowingly – (i) removes or alters any rights manage - ment information 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 informa - tion has been removed or altered with- out authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to a fine: Provided that if the rights management infor - mation has been tampered with in any work, the owner of copyright in such work may also
avail of civil remedies 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 registration 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 necessarily 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 letters 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 artis -
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