Intellectual Property Consultants

There are those who would prefer to invest in things they can touch and feel. Though stocks of a potential nature certainly have value it can sometimes be difficult to believe they will return on an investment. It seems to be easier to believe in things we can see thus the prominence of intellectual property. This is not to say this is a bad idea but instead to highlight the benefits of investing in intellectual property. Here are some of the potential benefits.

When one thinks of intellectual properties it is often divided into two different categories. You have industrial property, which includes patented designs and inventions. Also copyright type productions which include artistic type works and things of a creative nature. It is difficult to put a definite definition on intellectual property. To some it is anything that is of original thought. To others it is any you have created and applied copyright laws to.

If you just finished creating your own original piece of music and it became popular would you want the residual profits from said song? Well that is the idea of investing in intellectual property. You invest in some piece of art or invention that you expect to gain value. Of course a realistic expectation is that the value will increase ever so slightly and gradually but there are exceptions in which value jumps significantly in a short period of time.

So what is the true value of a piece of intellectual property? Well that is up to public demand to decide whether you like it or not. No matter how valuable you may feel a piece of property or art is it is only as valuable as the public deems it to be. Opinions are important so far as they are in common with other opinions.

The question here is intellectual property a good investment. Well, if you are read up and experienced in the arena of whatever physical thing you are betting on then yes it is a good investment. If you have zero experience with this then it is probably wise that you stick with something you know. There is definitely money to be made on intellectual property so long as you know the industry. There is nothing inherently wrong with investing in something you truly believe in so long as it really has value that will increase over time.

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A perplexing problem that is garnering much attention is the matter of Intellectual Property Rights (IPR). There has been considerable progress made on this subject over the last few years but a vast chasm separates China from the rest of the world. When we closely examine some of the measures taken recently, it gives hope that there is potential resolution to some of the major problems in dealing with IPR.

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New Face of Indian Trademark’s Act

Madrid Protocol- India Soon To Be A Member

India has indicated that it intends to join the Madrid System for the international registration of trade marks. The Union Cabinet gave its much awaited approval for India’s accession to the Madrid Protocol in February 8, 2007. The Trade Marks (Amendment) Bill, 2007 was introduced in the Lok Sabha on August 23, 2007. The Parliamentary Committee is inviting suggestions and queries from public as well as lawyers. It is most likely that India will be a member of Madrid Protocol soon. Once India is a member of the Madrid Protocol, trade mark applicants will be able to obtain registered trade mark protection in India easily and possibly quicker than at present. The Madrid Protocol allows applicants to obtain trade mark registrations in a number of countries more cost-effectively than if separate applications were filed nationally, as a single ‘international registration’ is filed which designates countries of interest.

Indian Intellectual Property Office- Electronic Filing

The Indian Intellectual Property Office (IPO) has commenced e-filings of patent and trade mark applications. To operate the e-filing system, the agent/attorney is required to have a digital signature. A single digital signature works for e-filing of both patent and trade mark applications i.e. separate signatures are not required. For foreign applicants desirous of obtaining the digital signature, an endorsement and clearance from applicant’s embassy in India is required. There is no provision for filing for amendments and assignments at the moment and apart from filing the application electronically, the applicants/agents are required to file the application manually as well. However in case of trade mark electronic filing, no manual filing is required and the electronic filing will suffice.

Trans Border Reputation- Recognised By Indian Courts

In a reaffirmation of the trans-border reputation principle, the Bombay High Court single judge has injuncted a company from using the words “Pizza Hut” as part of its corporate name holding that use of the same was likely to cause confusion and deception. The court relied upon the decision in Aktiebolaget Volvo v. Volvo Steels Ltd. of the Bombay High Court Division Bench which held that transborder reputation is recognized by Indian Courts and that actual sales in India are not necessary to establish goodwill and reputation in India.

Trans border reputation of a trademark is considered not only with respect to goods that are being sold under the mark in India but also with respect to the cognate goods. A case on the point is V&S Vin Spirit V. Kelly Valley Mineral Water Co.2005 (30) PTC 47 (Del).

Further in the case of Milmet Oftho Industries & ors v. Allergan Inc., the Apex Court of India i.e. Supreme Court relied on the doctrine of trans-border reputation, thereby protecting a mark that was adopted and used in the international market prior to the adoption and use of an identical mark in India, even though the foreign mark was never used in India.

CONCLUDING REMARKS

The abovementioned changes in the Indian Trademark’s Act are evident of the fact that the Trademark’s Act is undergoing a Change to reach the global standards.

The Accession to Madrid system provides a centrally administered system of obtaining a bundle of single jurisdiction trademark registrations based on an ‘international registration’, and therefore provides a mechanism for obtaining trademark protection in many countries around the world. Further, allowing e-filing will help in saving time and cost and will make the process of registration of trademarks faster and smoother.

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Trade Mark means a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark.(See Section 2(v) of the Trade and Merchandise Marks Act, 1958)

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Oxford graduate student Karen A. Brown has published a study on discrimination in J.K. Rowling’s ‘Harry Potter’ novels (See http://www.thelppc.com/featuredbook-prejudiceinharrypotter.html). While it has been widely acknowledged that Rowling’s work chronicles real-world social issues through some not-so-subtle subplots and allegories, so far, no one has dedicated an entire book to the subject. And Brown hastens to emphasize this feature in her blog, where she admits that she has been doing some “promotional work” for the new book. (See http://www.thelppc.com/karenbrown-blogg-prejudiceinharrypotter.html).

Ironically, this book’s release coincides with the latest controversy surrounding Rowling’s work, as HPLexicon.com founder Steve Vander Ark’s efforts to publish his own ‘Harry Potter Lexicon’ have been thwarted by Rowling’s lawyers. They claim that the Lexicon breeches their client’s copyright and infringes upon exclusive materials that Rowling intends to use in her own ‘Harry Potter Encyclopaedia.’

Since Brown has made it possible for readers to write to her, I contacted her to enquire how she felt about the Vander Ark controversy, and how it impacts upon her upcoming publication. She insists that ‘Prejudice in Harry Potter’s World’ does not in any way infringe upon Ms. Rowling’s copyright, and that all copyrighted materials (quotes and long citations) are properly referenced and kept to a minimum, as specified by the Christopher Little Literary Agency, to whom she wrote years ago to request permission to publish an essay entitled “Harry Potter and the Minorities Issue.”

“Lots of publishers turned me down,” Brown claims. “And it was not because of copyright concerns: Many other things have been written about Rowling’s work, none of them being given her authorization or approval. But I found it curious that most of the rejection letters I got clearly stated that my study was not marketable because no one was interested in reading about prejudice and racism. Some editors stressed that people who read Harry Potter are not interested in reading ‘about’ the books. So in the end I decided to publish the book myself, and mostly for me, because I strongly believe in the ideas put forth in it.”

All things considered, Ms. Brown appears to be quite passionate about this project, and seems to understand her own legal standing where Rowling’s work is concerned: “I did not create Harry Potter, obviously. I simply comment on how the books make reference to some of the social trends in our own world. Wizarding-world biases and social hierarchy share some shocking similarities with our own world. And I think we need to stop and take notice.”

Rowling herself has stated in various interviews that the series is a “prolonged argument for tolerance.” And it is at least encouraging that one of her readers has chosen to focus on this message.

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It is not any trade mark which is registrable. To be registrable the mark should be distinctive and should not be similar to any other trade mark registered for the same or similar goods or used by a competitor whether registered or not. In the case of a similar mark used by a competitor but not registered difficulties for registration will arise only if the owner of the mark chooses to oppose the registration. In choosing a trade mark therefore one has to see whether the mark satisfies the requirement of distinctiveness contained in section 9 of the Trade and Merchandise Marks Act, 1958. This is not very difficult. Thereafter the applicant has to verify as far as possible whether a similar mark, has been registered or used by others for similar goods. The applicant can make a search in the indexes kept for public inspection at the Trade Marks Office with or without professional assistance from practitioners of trade mark law. In the alternative a request for a search report may be made to the Registrar of Trade Marks in the prescribed form. It may be advisable to do both as it will provide some sort of evidence of bona fide of the applicant in adopting the mark which is very important. While choosing a trade mark it is dangerous to start from some existing trade mark and then make modifications. However, after independently adopting the mark, it should be ascertained whether a similar mark has been registered or used or already applied for registration. If the investigations discloses the existence of a similar mark, it is best to discard the mark chosen and start again the whole process. It is not always easy to decide whether two marks are similar. The best way to determine the question is to consider one`s reaction and apply common sense.

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