Trademark Protection

TRADEMARK PROTECTION

Trademark is a sign, or symbol which is used by a person to distinguish his goods or articles from the goods or articles of others and to identify his goods with similar goods. Trademark can be protected through registration at respective Intellectual Property office. The Trademark protection through registration procedure involves submission of trademark application, acceptance of trademark application, advertisement of trademark application, opposition to registration and Trademark registration. 

Trademark can be a word, phrase, logo, symbol, design, image, or a combination of these elements. There are various types of mark namely Trademark, service mark, collective mark, service mark and certification marks .Any person claiming to be the proprietor of a trademark used by him then he may apply for registration of trademark application in Intellectual property office. 

The application for registration of a trademark should be filed in triplicate along with five additional representations of the trademark signed by the applicant or his agent. The application for trademark protection should contain class and goods or services for the class with full description of the proprietor details.

After submitting the trademark application, for trademark protection a trademark search is made to know whether similar mark or identical trademark is applied or in pending with respective to the proprietor trademark. And whether submitted trademark application is followed with all the rules respective to the Intellectual Property Office. During examination, if there is need of any modification, amendments, clarifications etc then the examiner sends a letter to the proprietor.

When an application for registration of a trademark has been accepted with all the requirements then the registrar gives an opinion to publish in Intellectual Property office journal. This is an opportunity for others to oppose the trademark in case it is similar to proprietor trademark.

If there is any opposition to the proprietor trademark then the opponent should give details with respect to the opposition within three months from the date of proprietor trademark advertisement to the registrar. Then the same copy will be send to proprietor by the registrar then he shall respond within two months from the date of received letter. Then the registrar may arrange hearing for both parties. If the applied trademark application is in favor of proprietor then the registrar will issue a certificate in the prescribed form of the registration sealed with the seal of the trademarks Registry to the applicant. 

The duration of trademark registration is ten years and it can be renewed for every ten years from the expiration of last trademark registration. If the fee does not pay by the applicant for renewal then the trademark protection will be lost and be removed from the Register. Applicant may request to the registrar for the extension of time period to pay the renewal fee by filing the requirements forms. If the renewal fee doesn't pay by the applicant then the same trademark can be used by others without deception of same trademark. 

INTELLECTUAL PROPERTY CASE

INTELLECTUAL PROPERTY CASE

One of the famous patent Intellectual property cases was India vs US turmeric dispute. A US patent on turmeric was awarded to the University of Mississippi medical center in 1995.patent is for the "use of turmeric in wound healing". Two years later, a complaint was filed by the CSIR. They challenged the novelty of the granted patent.

United States Patent and Trademark Office started to investigate the novelty of this patent. In India, medicinally turmeric was used for thousand of years. It is a tropical herb grown in east India. The powdered product made from the rhizomes of its flowers has several popular uses and known worldwide. It was used as a dye, cooking ingredient, litmus in a chemical test and also medicinal uses. At last in 1997, the US Patent on turmeric was revoked. 

One of the famous trademark Intellectual Property cases was Brooke bond ltd vs. VC Patel and company. Brooke bond Ltd, a MNC and well reputed company in tea industry was the registered proprietor of the trademark label as Taj Mahal Tea. They were marketing various brands of tea of which one was Taj Mahal Tea. They sold in packets and cartons in distinctive color schemes like blue and orange with unique design and patterns. 

They did not export the tea instead sold exclusively in Indian market. Whereas VC Patel and Company introduced a brand of tea under the name Taj Tea. They exported the tea to Middle East countries and not sold within India. They sold same as Brooke bond with the words Taj Tea in English on two sides & in Arabic on other two sides. Brooke bond firm filed infringement suit against Patel firm. The case was filed as it was deceptively similar to its registered trade mark. But Patel firm agreed to change the color to red and yellow. But court insisted that the change would hardly make any difference and be of no consequences instead would lead to the possibility and like hood of deception or confusion. At last judgment was in favor of Brooke bond case.

One of the famous copyright Intellectual Property case was apple computer Inc. V. Microsoft Corporation was a copyright infringement lawsuit in which apple computer, Inc sought to prevent Microsoft Corporation and Hewlett packed from using visual graphical user interface (GUI) elements that WERE similar to those in Apple's Lisa and Macintosh operating system. The law suit was filed in 1988 and lasted four years the decision was affirmed on appeal in 1994, and Apple's appeal to the U.S Supreme Court was denied. 

Intellectual Property Valuation

INTELLECTUAL PROPERTY RIGHTS | INTELLECTUAL PROEPRTY VALUATION     An Intellectual Property Right, Intellectual Property Valuation is one of the areas in finance which play a major role in finance like buy/sell, solvency, merger, acquisition. Intellectual Property Valuation is considered the most important management strategic issue.   Intellectual Property Valuation or economic appraisal analysis are conducted for various reasons like transactions, pricing, strategic purposes, financing securitization, collateralization, tax planning, compliance and litigations support.   The Intellectual Property Valuation process necessitates gathers information about understanding the economy, industry and specific business which directly affect the value of intellectual property. Some information is gathered from external and internal source. The intellectual property valuation analysts use various approaches to reach a reasonable indication of a defined value for the intangible assets on a certain date which is called valuation date.   The following are the common approaches to estimate the fair value of the intellectual property:   v     Cost Approach: It is based on the economic principal of substitution. Here the investor will not pay any more for an asset than the original cost, the purchasing or constructing a substitute asset of equal utility. There are several cost approach valuation method like the historical cost, replacement cost and replication cost. v     Market Approach: It is based on the economic principal of competition and equilibrium. Here, in the free and unrestricted market, supply and demand factor will drive the price of an asset at equilibrium point. An indication of the value is provided by comparing the price at which similar property has exchanged between willing buyers and sellers. v     Income Approach: This estimates the fair value of intellectual property by discounting the future economic benefits of ownership at an appropriate discount rate. v     Direct Approach: It is based on the current value of shares of intellectual property in the IP share market. The purpose of Intellectual property valuation defines the legal or regulatory statutes, jurisdictional court of resolution, acceptable methodologies and 'rules of the thumb' that have developed in the particular field.   The valuation description states the general characteristics of the intangible asset. Intellectual property refers to patents, trade secrets, copyrights, trademarks/trade dress. IP gives the owners rights against anyone regardless of the contract.   Intellectual valuation premise refers to the underlying assumption on how the asset will be exploited in future. The asset will be valued under a specific use that differs from historical usage.   Intellectual valuation standard refers to the definition of value tied back to the valuation purpose. The most common valuation standard is the fair market value.   Intellectual valuation pyramid refers to the legal, business/strategic and financial characteristics of the asset. The profile level articulates the business and legal issues. Most of the hard work and creative energy of the valuation analysis takes place in this level.

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TRADEMARK

INTELLECTUAL PROPERTY RIGHTS | TRADEMARK   Trademark which is identified by symbols Tm or ® or mark is a distinctive sign or indicator used by and individual, business organization or other legal entity to identify the products or services to consumers. A trademark is a type of intellectual property and typically a name, word, phrase, logo, symbol, design, image or a combination of these elements. There are also non-conventional trademarks comprising marks which do not fall into these standard categories.    The owner of registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. The owner of the trademark may also file a suit. An unregistered mark will be protected only within the geographical area.   Trademark is a mark or sign by which a trader or manufacturer distinguishes his goods from other traders or manufacturers. The trader uses the mark to identify his goods so that the public may know the source of production of his goods. Its is in the interest of public as well as the trader or a manufacturer that the goods available in the market for the purpose of sale-purchase may be identified with respect to the manufacturer or trader so that the public could get the goods of quality which a particular manufacturer has assured to produce for the use of persons concerned. The traders and manufacturers adopt a particular trademark to sell their goods and the purchasers of those goods identify them as mark or trademark used thereon. This trademark is used by the traders and earns good will and reputation which is the goodwill and reputation of the user of that mark.   The people who want to earn money without making serious effort and putting hard labour sometimes attempt to adopt trademark of another and avail the benefit of reputation and goodwill of another person. The law of trademarks is based upon principal that the public should not be deceived by a person who sells or offers for sale of any goods bearing a trademark with which he has no connection.   The fundamental principal of trademark is that no man is entitled to represent his goods as being the goods of another man and no man is permitted to use any mark, sign or symbol, device or means, by making a direct false representation of himself to a purchaser who purchases from him. He thus enables such purchaser to tell a lie or make false representation to somebody else who is the ultimate customer.   The trademark is a kind of property and is entitled to protection under the law, irrespective of its value in money as long as it has some business or commercial value. Not only the interest of public but the interest of the owner is also a subject of concern of trademark legislation. Thus the trademark legislation extends protection to a trademark of a person who has earned reputation and goodwill in that trademark by hard and serious effort.

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