Month: March 2021

By:- Rajat Nischal 

A trademark if perceived in a true layman’s sense would be referred to as a visual representation of a word, label, numeric characters, name, or device consumed by an entity in order to segregate/ distinguish its own identity/ services or goods from the previously present comparable services/goods stemming from a different entity/organization. A trademark operates its being in such a sedulous approach that it delivers an exclusive identity (i.e., an exclusive mark which a third party cannot optimize) of that specific service/good offered by that specific service provider/ entity. The moment an entity enrolls itself as a registered trademark, it transmogrifies its own self as an untouchable asset or intellectual property for an entity which is optimized in order to protect the reputation and status of that specific brand/entity.

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Considering the contemporary scenario in India, the trademarks are registered under the Trademark Act, 2016 by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Post the registration as a trademark, the trademark owner gains a right to take legal action for damages when trademarks infringements of occur. Subsequent to a successful registration, symbol ‘R’ can be used by the trademark owner making the validation of his rights for a fixed period of 10 years. Nevertheless, the trademarks forthcoming their expiration can easily be renewed by a simple submission of renewal application.

REGISTRATION CHECKLIST

The registration procedure encompasses the following;

• Filling up registration application form,
• Examination of the trademark
• Publication of the trademark
• Advertisement of the trademark
• Opposition (objections) if raised/ found
• Registration of the trademark and renewal of the trademark after every 10 years.

The checklist consists of a basic necessities

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1. SEARCHING A TRADEMARK

The applier is suggested to be cautious during the course of selection. This is because, tremendous variety of trademarks are predominantly registered and to make it indisputable, the mark should truly be unique. A thorough research on the trademarks database which is available with the trademarks registry has to be conducted before choosing a unique and exclusive trademark.  The database is a prominent option because the search discloses all the types of trademarks that are already available in the market, either registered or unregistered.

1. FILING APPLICATION

The concerned application may be filed either in a multi or a single class. The same totally hangs to the specific service/good that the entity holds. The application Form TM-A which can be filled in either ways, may it be online or offline. For offline the applier shall visit the official trademark office depending upon the jurisdiction and for online, the applier shall refer the official intellectual property India website. The trademark application encompasses numerous documents prescribing comprehensive and detailed specifications of the trademark.

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• EXAMINATION BY THE AUTHORITIES

After filing the application, asper the guidelines of the Trade Marks Act of 2016, an obligatory examination process of the trademark application is conducted by the government examiner.

The submissions of their examination might reveal certain objections which may be absolute or limited in nature; the aforesaid examination report by the concerned authorities is dispensed within a span of 30 days of having filed the application. In response of the same, in order to remove the objections, an obligatory rational response (including arguments and evidence) to the objections shall be submitted before the authorities.

1. AFTER THE EXAMINATION 

Upon filing a reply to the investigation report, the authority Examiner may hold legal proceeding if the Examiner is not completely satisfied with the reply filed or if the objections are not satisfied. After the hearing, the Inspector can approve the trade mark and either forward the request for publication to the journal or refuse the application if there is still an estoppel.

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1. MARKETING AND PUBLISHING

After the application for registration has been approved, the said trademark shall be marketed and published in the Trade Marks Journal for a term of 4 months.

The purpose of the publication and ads is to encourage the general public to file an opposition to the registration of the label. The Trade Marks Journal is accessible on the Official Registry website, which is published every Monday of the week.

1. DISAPPROVAL

After the publication of the trademark, any person who has been aggrieved can file a notice of opposition to the registration of the published trademark. The said notice shall be filed via form TM-O within a deadline of 4 months of the actual publication in the trademark journal. In the event of opposition, all the mechanism will function asper the prescribed procedures of law (the said includes; facts, counter-statement complaint, arguments etc.).

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• REGISTRATION

The final piece to this whole process is the successful registration of the trademark which comes after travelling journey full of estoppels.

Moreover, in the scenario where no opposition is raised towards the registration of the trademark during the 4 months publication period then, the same will get itself successfully registered within 7 working days.

CATEGORIES OF TRADEMARK UNITS IN INDIA

In India, trademarks can be registered in a multitude of forms. The same includes wordmark, label, logo, as well as device mark. As a condition, the choice to file a trademark as a word mark or logo is indeed a very challenging choice to accept.

1. GENERIC MARK

The Generic marks denotes a very generalised explanation of their product or seller. These comprise commonly known words like “food,” “shoes” or “watch.” However, the aforesaid words are a part and parcel of the daily routine of an individual’s life and giving exclusive usage rights for such words would truly amount gross injustice to other individuals of the society. For an illustration, trademark registration for the term “restaurant” is impossible as well as irrational in its very basis. And lawfully, such sort of a registration would exhaustively upshot an unfair monopoly over the entire food and beverage industry. Henceforth, if such terms are registered, unknowingly, countless businesses will have to shut themselves down unnervingly. So, an entity if perceives to uphold a registered mark in its name it shall add another modifier exclusive to its products.

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1. SUGGESTIVE MARK

Suggestive marks register terms that indicate the quality of a service without actually referring to it in a literal way. Imagination from the end of the user is a key factor in the identification of the mark. A good example would be Netflix, as it makes reference to its service line without explicitly mentioning that it is a video streaming network.

1. DESCRIPTIVE MARK

While the generic mark may reflect a commodity or its supplier, the Descriptive Mark refers to just the merchandise. That being said, as these words are considered part of the common language, they are nevertheless non-registerable. However, the inclusion of a ‘signifier’ to identify and define the substantial nature of the substance may qualify it for trademark protection.

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1. FANCIFUL MARK

This sort of trademark is the easiest one to file. It just includes a new term that does not actually have any meaning for the general public. While smoother to file.  In specific, the corporation should closely analyse how the brand will be perceived by the public. It is better to carry out careful study into whether it will be easy to recognize, read, or pronounce. Fanciful marks require informed forethought, too. Brands will most likely prefer their trade to achieve favourable characterizations, but businesses shall also acknowledge the cultural overtones of their fanciful trade mark.

1. LOGO

A logo in its true basic sense, enshrines the trademark holder with utmost rights over the amalgamation of words, design, and images together. For an illustration; Adidas, Puma, Nike, Reebok, etc. Above and beyond this, if the customer base of the company is truly based upon its logo, then obviously the entity would prefer to register a patent on that particular logo.

The covering given to the words in the logo mark is reduced as opposed to the regular word marks so the rights in the logo are only valid as a whole. Consequently, if an entity/individual pertains a wish to register a clearly styled appearance or a union of stylized words and design, the registration of a trademark as a logo will be essential.

1. WORD MARK

One of the most convenient and sober registration processes belongs to the word mark; a word mark is specifically designated for the name / title of the entity. For an illustration, Britannia and Jio solely possess the word of their entity as a registered mark and the said is called to be acknowledged as a word mark. Post the registration of a trademark as a word mark, the owner gains a blanket right over the usage and practice of the concerned word. The rights wholly support for the variations made in its font or writing style/size, until and unless the word is used asper and in line of the legal specifications enlisted, the word lies in the boundaries of the blanket of the rights owned by the applier.

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By: Rushika M 

“It is most useful that the true origins of memorable inventions be known, especially of those that were conceived not by accident but by an effort of meditation. The use of this is not merely that history may give everyone his due and others be spurred by the expectation of similar praise, but also that the art of discovery may be promoted and its method become known through brilliant examples.”[1]

-Gottfried Wilhelm Leibniz

One of the oldest and most controversial intellectual property disputes in the world is the peculiar case of Sir Isaac Newton and Gottfried Wilhelm Leibniz. As rightly described by Jason Socrates Bardi in the title of his book ‘Calculus Wars’, the dispute between Newton and Leibniz is the ‘greatest mathematical clash of all time’.[2]

The dispute between Newton and Leibniz was not an uncommon one, especially in the 17^th century which has been described by the American science historian D. Meli as the “golden age of the mud-slinging priority disputes.”[3] Both men being great mathematical minds and accomplished intellectuals, claimed priority over the invention of Calculus. For those unaware, Calculus is the branch of mathematics that deals with the finding and properties of derivatives and integrals of functions, by methods originally based on the summation of infinitesimal differences.[4] In short, it is the study of continuous change.[5] Presently, the use of calculus is indispensable in many fields of science and mathematics such as physics, computer science, engineering, statistics, economics, medicine, and demography to name a few. Both, Newton and Leibniz sought to establish the same as their own invention. However, the distinguishing quality of their case is not only the nature and subject-matter of dispute but also the manner in which each sought to establish their priority.

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A brief description of the dispute is as follows. Infinitesimal calculus may be expressed in one of the two forms: (i) as a notation of fluxions or (ii) as a notation of differentials. Newton employed fluxions in his research which can be dated back to as early as 1666. However, he did not publish his work until the year 1693. On the other hand, Leibniz employed the method of using differentials and formulated his own notation which can be dated back to as early as 1675.[6] He also referenced the same in his letter addressed to Newton in the year 1677 and included it in his memoir of 1684.[7] The dispute between the two men arose when Newton claimed that Leibniz was made aware of Newton’s research long before he arrived at his own notation and hence, Newton was the first inventor of calculus, while Leibniz had only formulated another notation based on the principles and work of Newton.[8] Since the prevalent method of establishing priority in the 17^th century was not in the form of first publication or registration as it is in the present era and the usual mechanisms were in the form of anagrams, sealed envelopes, correspondences or a private message exchanged between peers, etc., the dispute between Newton and Leibniz could not be effectively resolved on the basis of first publication.

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Primarily, evidence lies in favour of Leibniz’s claim of a notation independent of Newton’s for three reasons: (i) Leibniz, who is presumed to have acted in good faith, always alluded to his discovery being his original work and this claim was undisputed for a few years; (ii) his work was published long before Newton published his method of fluxions; and (iii) in his private papers, Leibniz demonstrated the originality of his derivations and their independence from Newton’s work. However, those contesting Leibniz’s claims questioned his good faith and believed that he had been acquainted with Newton’s work in or before 1675, the reason being that Leibniz frequently corresponded with a Mr. John Collins, who was not only well-acquainted with Newton’s work, but had also received copies of the same from Newtons mentor Isaac Barrow.[9] When, in 1849, C. I. Gerhardt found copies of Newton’s work in Leibniz’s manuscripts, the claims were further substantiated. However, since it is inconclusive as to when Leibniz obtained the copies, the same cannot be considered conclusive evidence in the matter. Doubts were also cast on Leibniz’s testimony when he anonymously published a slanderous review of Newton’s tract on quadrature implying that Newton had borrowed the idea of the fluxional calculus from Leibniz and when he deliberately altered or added to important documents before publishing them, and falsified a date on a manuscript.[10] In any event, the entire dispute was also tainted by a bias favouring Newton who, while serving as the President of the Royal Society, found favour in the committee report of the Society that presided over the dispute. Although the matter came to a temporary end with the death of Leibniz and the modern consensus is that both Newton and Leibniz developed their ideas independently, debates between the supporters of the two persist to this day.

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Upon a brief analysis of the above dispute, two things are evident: (i) that much of the dispute between Newton and Leibniz was caused by assumptions which were often unsubstantiated; and (ii) the evidence presented by the gentlemen was mostly testimonial or by way of hearsay. It was perhaps due to this reason that the dispute remains unresolved to this day. Or perhaps it was the nature of the dispute resolution mechanism at the time that is to blame. Irrespective of the same, what remains consistent to this day is the topical nature of priority disputes, may it be in the field of science and mathematics, or literature, or any other domain, thus resulting in the substantial growth and relevance of intellectual property laws and jurisprudence.

At present, in India, the Indian Patents Act, 1970 is the one comprehensive law that safeguards the interests of inventors or patent holders in India. The Patents Act, 1977 would be the legal authority in the European Union, including the United Kingdom of Great Britain and Northern Ireland. A priority dispute today would be resolved under the dispute resolution mechanisms of these laws and such being the case, the standard of evidence required to prove the claims of either party would be far greater than those evidenced by Newton and Leibniz during the 17^th century. It is likely that the dispute would not even have persisted for as long as it did at the time. Regardless, the case of Sir Isaac Newton and Gottfried Wilhelm Leibniz is a memorable one and one of immense significance not only to academicians and scientists, but also to legal practitioners in the field of intellectual property law.

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[1] G. W. Leibniz, The Early Mathematical Manuscripts of Leibniz; Translated and with an Introduction by J. M. Child, The Open Court Publishing Company, 1920. (Reprinted by Dover Publications, 2005.)

[2] BARDI, J. S. (2006). The calculus wars: Newton, Leibniz, and the greatest mathematical clash of all time. New York, Thunder’s Mouth Press.

[3] Hans Gaab and Pierre Leich Simon Marius and His Research, Springer, 2019.

[4] Oxford Languages, Calculus.

https://www.google.com/search?q=calculus+meaning&rlz=1C1CHBF_enIN859IN859&oq=calculus+&aqs=chrome.3.69i59l2j69i57j0i433j46j69i60j69i61j69i60.4602j0j7&sourceid=chrome&ie=UTF-8

[5] Cambridge English Dictionary, Calculus. https://dictionary.cambridge.org/dictionary/english/calculus

[6] Norma B. Goethe, Philip Beeley and David Rabouin, The Interrelations Between Mathematics and Philosophy in Leibniz’s Thought,  http://ndl.ethernet.edu.et/bitstream/123456789/57413/1/19.pdf.pdf#page=119

[7] Blank, B. E. 2009 Review of J. S. Bardi: The Calculus wars. Notices of the AMS 56:602–610.

[8] Sir Isaac Newton, The Correspondence of Isaac Newton, 7 v., edited by H. W. Turnbull, J. F. Scott, A. Rupert Hall, and Laura Tilling, Cambridge University Press, 1959–1977.

[9] Supra, 6.

[10] Ibid.