Analyzing the role of copyrights and trademarks in business transactions
Authored by Neha Bisht
Keywords: Intellectual Property, Copyright, Trademark, Registration, Business, Originality.
Copyrights and Trademarks can be said to be the backbone of the business transactions. As they instill a sense of security in the minds of the consumer as well as the owner of the work. This paper will talk about copyrights and trademarks in relation to the market. It will further enlighten you about the registration process of both as mentioned under their respective acts.
Intellectual property includes inventions, literary pieces, music works, symbols, and names. To save the legal rights of the real owners of intellectual property, Intellectual Property rights were introduced. Trademark and Copyright come under Intellectual Property. Both of these are proof of the originality of the work or company. The Trademarks Act, 1999, and the Copyright Act, 1957 regulate the trademarks and copyright issues respectively. Their main motive is to maintain originality in the market which will eventually make room for new job opportunities and fresh ideas. The fresh ideas will help in flourishing the economy. If the original owners will not get their credit then they will not be paid accordingly.
If there is a trademark that is already being used by the company in that case nobody else can use the same trademark given that consumers will not be able to differentiate between the two companies. Some companies do this intentionally to trick the buyers which leads to the low confidence of buyers while purchasing anything from the market. This is why we need to have Trademark infringement laws.
Copyright Act safeguards the right of the owners of the literary, artistic, dramatic, musical, and other intellectual creations. It can be both published and unpublished. Section 17 of the Copyright Act,1957, says that the author of the work shall be the first owner of the work. They are given the exclusive right to use the work or sanction any other person to use it. However, it is completely up to the owner of the work if he wants to put any restrictions regarding the same.
It is almost like a person who stole your physical possession except it is still with you. The Copyright Act, 1957 is in alignment with the Berne Convention for Protection of Literary and Artistic Works,1886. India is also a part of conventions like the Geneva Convention for the Protection of Rights of Producers of Phonograms, and a member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO).
Under section 32 of the Copyright Act, 1957 if the author of an unpublished Indian work is no longer alive, not known or nowhere to be found then any person can apply for a license to publish or translate it. [i]
It is not necessary to acquire the copyright as when a work is created, it’s copyright automatically comes into existence. However, a certificate of registration of copyright can be used as a prima facie evidence in court whenever a dispute arises relating to the ownership of the work.
Chapter XIII of the Copyright Rules, 2013 lays out the procedure for the registration of a work.
Firstly, you need to file for an application with the requisite fee in the copyright office or through speed/registered post or through the official website. A dairy number will be issued to the applicant.
Secondly, there will be a minimum of 30 days waiting time period in case, anybody wants to raise an objection. In case no objection is raised and the discrepancy is found when the examiner examines the application then till the time that discrepancy is not resolved, the applicant will not be allowed to the next step. In case there are neither any objections raised nor any discrepancies found then only the application will move forward.
In the event that objections are raised by somebody then both the parties will be called to be present before the registrar by sending a letter. After hearing, if the objection is rejected then the second step is followed and, if the objection is not cleared them a rejection letter is sent to the applicant.
Thirdly, after following all the procedures if the registrar is content with the copyright claim then he will issue a certificate of registration and the Extracts of the Register of Copyrights (ROC). [ii]
It includes logos, symbols, words, services or, anything that distinguishes a company from everybody else. A trademark becomes the identity of a company. Trademark protection makes sure that the other person does not use the trademark already owned by somebody else and if he does so then he will be attracting legal trouble for himself. Trademark protection is legally enforceable by the courts and the remedies available against trademark infringement are both civil and criminal under the Trade Marks Act.
When a company has been using the same trademark for a long period then people find it is easy to associate the company with the trademark. Sometimes a company uses the same trademark as the other company to fool the customers into believing that they are the other company. This kind of misappropriation damages the goodwill earned over the years by the company. In such cases, the law of passing off comes to the rescue. Now the main difference between Trademark infringement and Passing off is that it applies to protect unregistered trademark rights.
Section 2 (zg) of the Trademarks Act, 1999, defines a well-known trademark. It says a trademark which is so popular that the consumers recognise the company by it. If a well - known trademark is not registered under the act still protection will be provided to it.
Trademark helps the consumers in identifying between fake goods and original goods. It also loosens the cut-throat competition in the market by eliminating companies that try to have an edge over other companies by using such malpractices. It protects the people with skill and who has put in efforts to be where they are right now. The trademarks play a very vital role in maintaining fairness in the market. [iii]
Registration of Trademarks is not necessary. However, registration serves as a prima facie evidence in court in case any dispute arises. No suit can be brought in the court for unregistered trademarks except where it is brought against any person for passing off goods or services as they are provided by another person. Section 22 of the Trademark Act allows the amendment of the mark as long as it is not a significant change in the character of the mark.
Steps for registration
· Firstly, you need to search such a trademark that is not similar and if similar, whose product or service does not match with your selected trademark.
· Secondly, the trademark application can only be filed by the proprietors in India. In absence of the proprietor, it can be filed through an agent or attorney.
· Thirdly, the agent checks the eligibility for registration and carries out a thorough search for any similar trademark.
· Thirdly, the agent can file for an application on the behalf of the right holder with his consent.
· Fourthly, the trademark office checks for any discrepancies in the application form and provide the application number. This application number later becomes the registration number, if approved.
· Fifthly, the application goes ahead to the association for examining if it is barred from registering on any of the grounds mentioned under the Trademarks Act, 1999. Based on this examination report made by the association, the fate of the application is decided by the registrar.
· Lastly, if no party raises an objection against the application then a registration certificate is issued within three months. [iv]
Trademark and Copyright contribute immensely to business transactions. The goodwill earned by a company is directly associated with its trademark because over the years people have started to identify with it. It has a brand value attached to it which helps the business in flourishing. If a person tries to fool the consumers then one can go for legal recourse available. Many artists feel valued if their work is appreciated by an audience but when somebody else copies and presents it as theirs then they are being robbed of their due credit. If people will continue to steal the credit or work of somebody else then eventually nobody will be interested in making something on their own and therefore, causing heavy damage to the market.