INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
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. 4. Trade Mark Registrations and Applications 4.1 Trade Mark Registration 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 distinctive - ness, it can nevertheless 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 regis - trations and registered trade marks. On its web - site, the Trade Marks Registry offers a free online trade mark search. All trade mark applications submitted to the TMO in India, including all reg - istered, applied, challenged 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 database, as well as Registrar of Com - panies 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 peri - od of ten years and renewable every ten years, in accordance 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 reg - istrations after the term has lapsed. Trade marks are initially registered for ten years, and renewal is required every ten years to maintain the reg - istration. • 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 for its restoration within one year from the expiration date. 4.4 Application Requirements Any natural person, legal person or other organi - sation that claims to be the owner of a trade mark can apply for trade mark registration. The following information and documentation must be submitted in a trade mark registration application: • applicant’s name and address; • state or country of incorporation; • a description of the trade mark; • a representation of the trade mark; • a list of the relevant goods or services; • the power of attorney;
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