Intellectual Property Rights

No, but registration helps considerably. An unregistered mark can be protected by a passing-off action, which requires proof of goodwill, a misrepresentation by the other party and resulting damage. The proprietor of a registered mark has a statutory right to its exclusive use for the goods or services covered, can generally sue for infringement without having to establish goodwill or reputation, and can rely on the registration as prima facie evidence of its validity. A registration lasts ten years and may be renewed for further periods of ten years without limit.

The Registry examines the application and may object on absolute grounds, such as the mark being descriptive, or on relative grounds, such as similarity to an earlier mark. A written reply and, if needed, a hearing follow. Once accepted, the mark is advertised in the Trade Marks Journal, and any person may oppose it within four months of advertisement. If there is no opposition, or the opposition fails, the mark is registered, with effect from the date of the application. The ® symbol may be used only once a mark is registered; falsely representing a mark as registered attracts a monetary penalty under the Act.

No. Copyright in an original work arises on its creation, without any formality. Registration with the Copyright Office is still useful, because entries in the Register of Copyrights are prima facie evidence of the particulars recorded, which can simplify proof in a dispute. Ownership deserves separate attention: work created by an employee in the course of employment generally belongs to the employer, but work commissioned from an outside designer or developer may not belong to the client unless there is a written assignment. For most literary, dramatic, musical and artistic works, copyright lasts for the author's lifetime plus sixty years.

The options include a cease-and-desist notice, a negotiated undertaking, a civil suit for injunction and damages and, in cases of counterfeiting, a criminal complaint. Courts can grant interim injunctions early in a suit, in urgent cases before the other side is heard, and can appoint local commissioners to inspect and seize infringing goods. A commercial suit that genuinely seeks urgent interim relief need not first go through pre-institution mediation. Delay weakens a claim for interim relief, so act once you become aware of the infringement and preserve evidence such as test purchases, screenshots and invoices.

At a minimum: a clear description of the rights and registrations covered, the territory, the duration, the consideration or royalty, quality-control terms for trade marks, and what happens on termination. Under the Copyright Act an assignment must be in writing; if it does not state its duration it is deemed to be for five years, and if it does not state its territory it is presumed to extend to India. An assignment of a registered trade mark should be recorded with the Registry so that the new owner's title appears on the register.

Suits for infringement of a registered trade mark or of copyright must be filed in a court not below a District Court. Besides the place where the defendant resides or the infringement occurs, these statutes also allow a suit where the plaintiff resides or carries on business, although the Supreme Court has limited that option so that it is not used to cause unfair inconvenience to defendants. Intellectual property disputes are commercial disputes, so where the value meets the statutory threshold they are heard by Commercial Courts or the commercial divisions of High Courts.