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Intellectual Property News and Analysis – Intellepedia

Emancipation of Sherlock Holmes & Dr. Watson

The image is from the BBC television show depicting Sherlock Holmes and John Watson. The post is about the expiry of copyright over Sherlock Holmes which is now in Public Domain. Click on the image to read post.

One might ask, how do 127-year-old immortal characters of Sherlock Holmes & Dr. Watson achieve emancipation? The answer is simple: Sherlock’s free for all now, as a direct result of Leslie Klinger v. Conan Doyle Estate Ltd[i]. The 7th Circuit Court of Appeals, US, vide Order dated June 16, 2014, clarified that the characters of the Sherlockean World, creations of Sir Arthur Conan Doyle, are in the public domain now, as their copyright expired as early as 1997. With the exception of 10 Sherlock stories written between 1923 and 1927, the copyright has expired on all other 46 stories and...

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Intellectual Property and Licensing – Presentation by Dr. Kalyan at IIM, Bangalore

This image reads Intellectual Property and licensing. THis image is relevant because this post talks about a presentation given by Dr. Kalyan C. Kankanala at IIM Bangalore on the said topic. Click on the image to view full post.

This presentation, delivered by Dr. Kalyan Kankanala at IIM, Bangalore, gives an overview of intellectual property and licensing. Starting with an introduction to Intellectual Property and its species, Dr. Kalyan introduces some licensing concepts. Through recent cases and examples, Dr. Kalyan provides a basic understanding of the nature of licensing transactions and types of licenses.

Intro to Patent Law and Patentability Requirements – Presentations by Dr. Kalyan Kankanala at NLSIU

This image depicts the Title Intro to patent Law and Patentability Requirement, a PPT Presentation given by Dr. Kalyan Kankanala. Click on the image to view full post

The presentations embedded in this post have been delivered by Dr. Kalyan Kankanala in his Patent Law course at National Law School of India University, Bangalore. The presentation on Intro to Patent Law gives an overview of patent philosophy. It covers social, economic and utilitarian rationales and gives an introduction to the tragedy of commons dimension. It also covers the patent life cycle, and public interest aspects of patent law. This presentation is an updated version of the 2013 presentation.

Featherbed Frame: The Frame That is Revolutionizing Motorcycle Construction

This image shows a Featherband Frame beside a Motorcycle. This image is relevant as the post is about the revolutionizing changes the new Featherbed Frame is giving to the Motorcycle. Click on the image for more information

This post was first published on 16th October, 2014.   The chassis or the frame is part of a vehicle that is of paramount importance. It is like a skeleton that defines the shape of the vehicle and holds all the associated components of the vehicle together. There are different types of motorcycle frames such as single cradle, half duplex cradle, full duplex cradle, perimeter, beam, trellis etc., Though single cradle or single down-tube cradle frame is the simple and most commonly found frame on motorcycles, it is quite inferior to its counterpart in terms of handling. The Featherbed Frame is a type...

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Understanding the Doctrine of Foreign Equivalents – Part 1

The image reads Trademark. The post is about the Trademark Agent Exam which will be conducted soo. Click on the image to read the full post.

This post was first published on 10th October, 2014.   The Doctrine of Foreign Equivalents is a rule used in the Trademark Law which states that a foreign word and its equivalent English translation may be deemed confusingly similar. Under this doctrine, marks consisting of or including foreign words or terms from common, modern languages are translated into English to determine the extent to which it is generic, descriptive, the likelihood of confusion it may cause among other similar issues. The Trademark Manual of Examining Procedure of the USPTO provides the following tests for determining the applicability of the doctrine of foreign equivalents: Whether, to...

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Elucidating the Patent Process – Part 1

BIP Counsels - Online Patent filing India

This post was first published on 16th July, 2014.   To comprehend the Patent Process in its entirety, it is very essential to understand clearly the different types of patent applications. This post lucidly explains the different types of applications which can be filed before the Indian Patent Office. Provisional Application Non Provisional Application/Complete Application Conventional Application PCT - International Application PCT - National Application Application for Patent of Addition Divisional Application Provisional Application is a non final, preliminary application which is filed before the patent office to claim priority. This application is usually filed when an invention requires some more time to be...

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Grounds for Refusal of Trademark Registration – Part II

This image depicts the 'Trademark' and 'Registered' symbols. This post is a part of a series on what marks are permissible as trademarks. Click on the image to read the full post.

In the previous blog post, we discussed Section 9(1) which laid down a few absolute grounds for refusal of registration of trademarks.

Today, we’ll explain in detail, Section 9(2) which states:

“A mark shall not be registered as a trademark if:

  1. It is of such nature as to deceive the public or cause confusion;
  2. It contains or comprises any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
  3. It comprises or contains scandalous or obscene matter;
  4. Its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950

Marks that have the potential to deceive the public or cause confusion shall not be registered as trademarks under the Trade Marks Act, 1999. Deception or confusion may arise due to similarities between the proposed mark and existing marks or might flow from something contained in the mark propounded for registration or might result from the nature of the use of the mark. This provision is primarily concerned with the deceptive nature of a mark due to something inherent in the mark or its use, such as nature, quality or geographical origin of the goods or services or any other matter constituting the mark. Hence, it is important to note that Section 9(2)(a) is only concerned with cases where deception or confusion arises from the nature of the mark itself and not based on similarity between marks. The primary object behind this provision is to safeguard the interest of the public. As a result, if a particular mark is misleading or false, it will be refused registration notwithstanding the fact that the applicant had acted in good faith [Boots Pure Drug Co.’s Ltd. Trademark, [1937] 54 RPC 327], or that there has been no opposition [Diamond T Motor Car Co.’s Application [1921] 38 RPC 373], or that there is consent [Dewhurst’s Appl. (1896) 13 RPC 288].

Well Knownness of a Trademark – Part II – Popularity among Substantial Segment of Public

This image depicts several well known brand logos such as McDonald's and Coca-Cola. This post is about the transborder reputation of well known marks. Click on the image to read the full post.

As discussed in our previous post, for determining the well knownness of a trademark, the claimant of the well knownness is required to prove beyond reasonable doubt that the mark enjoys high reputation among a substantial segment of consumers, with respect to the goods and/or services to which said mark is applied. In order to conceptualize the principle behind the well knownness of a trademark, it is important to understand the legal interpretations of the terms ‘substantial segment of consumers’ and ‘relevant consumers’.

Although there is no hard and fast rule regarding what constitutes substantial segment of consumers, analysis of case laws of various jurisdictions indicates that, in order to consider a trademark as well known, the mark should be known among 75 to 90% of relevant public.

The Chancery Division in the judgment reported as “British Sons Vs James Robert – 1996 (RPC) 281 (page 305-306), while examining the issue of acquired distinctiveness of a descriptive trademark “TREAT” has held that mere extensive use is not enough. It must be shown that the mark has really become accepted by a substantial majority of persons as a trademark and has become a household word. Even if 60% of the purchasing public recognize the word as a trade ark, that is not sufficient. Such recognition must be amongst at least 90% of the purchasing segment of public. The Applicant has miserably failed to produce on record any such evidence.

How to Determine Well Knownness of a Trademark – Part 1 -Trade Marks Act, 1999

The image depicts a lock with the letters TM by its side. The post talks about protecting trademarks. Click on the image to read the full post.

In continuation to our previous post on Well Known marks, in this post we will be discussing the factors that should be taken into consideration while determining the well knownness of a mark.

Section 11(6) and Section 11(7) of the Trade Marks Act, 1999 discusses the factors that the Registrar of Trademarks shall take into account while determining the well knownness of a trademark. Section 11(6) provides specific factors for assessing well knownness of a trademark, and Section 11(7) provides specific criteria for the said factors.

Section 11(6) states that – The Registrar shall, while determining whether a trade mark is a well-known trade mark, take into account any fact which he considers relevant for determining a trade mark as a well-known trade mark including

(i) the knowledge or recognition of that trademark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark;

Reversion of Assignments & Licenses – Part III: Notes on Copyright Amendment, 2012

The image has a sheet of paper with text stating "Copyright License Agreement". The post contains notes relevant to Copyright Amendment Act 2012. Click on image to view post.

The Copyright Amendment brought in a few important changes with respect to mode of assignment of works. Not exercising due care with these provisions might result in reversion of rights. Thankfully, some of these changes were all encompassing and not limited only to authors or owners of works for films.

Relevant provisions of Section 19 read as follows:

“19. Mode of assignment. …

(4) Where the assignee does not exercise the rights assigned to him under any of the other sub-sections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

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