IPR (English) 2021

(B.A.LL.B. IX/B.B.A.LL.B. IX/LL.B.
V) Semester – Intellectual Property Rights
Note :
The question paper is divided into two Parts. Part- A will carry total 08 (eight) questions
of 04 marks each and the candidate shall be required to attempt any 05( five) questions. Part B
will carry total 08 (eight) questions (of 20 marks each), two each from the 04(four) Units of the
syllabus. The candidate shall be required to attempt total 04 (four) questions, one each from
every Unit.
Intellectual Property Rights

Session : 2021-22
(B.A.LL.B. IX Semester)
(B.B.A.L.L.B. IX Semester)
(L.L.B. V Semester)
 These are only important questions based on the syllabus.
No guarantee can be given.
 In case of any typing error, feel free to email us at
info@chanakyalawcollege.in or drop your message at No.
7351051110.
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(B.A.LL.B. IX/B.B.A.LL.B. IX/LL.B. V) Semester – Intellectual Property Rights
Syllabus
Intellectual Property Rights
Unit-I
1- Introduction: Basic concept of IPR ;Nature, Commercial Exploitation IP; Enforcement

of Right and Remedies against Infringement, International Charter of IP.
2- Patents : Introduction
3- Obtaining of Patent
4- Specification
Unit-II
1- Right and Obligation of the Patens and Transfer of Patent Rights

2- Infringement of Patents and Remedies
3- Industrial Designs
4- Rights conferred by designs-Infringement of copyright in design
Unit-III
1- Remedies against Infringement

2- Trade Marks
3- Property in Trade mark and Registration of Trade Marks
4- Infringement and Remedies
5- Copyright
Unit-IV
1- Introduction : Scope, nature subject matter of copyright

2- Authors and Ownership f Copyright
3- Rights conferred by copyrights
4- Infringement of copyright
5- Geographical Indications
6- Biological Diversity Act, 2007-Salient features
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Unit – I
Q.1 What do you understand by Intellectual Property Law? Explain the nature &
concept of IPR. Discuss the International Trade. (Unit –I)
Ans. Intellectual Property
Intellectual property is the product of the human mind and intellect. Intellectual property, in is
literal sense means the things which emanate from the exercise of the human brain. It is the
product emerging out of the intellectual labor of a human being. It involves the visual expression
of a mental conception, the work of both brain and hand. Broadly speaking, the from
―Intellectual Property‖ includes, on one level, ideas, concept, know-how, and other creative, and
on a second level the literary, artistic, or mechanical expressions that embody such abstractions.
Nature of Intellectual Property Right
The relevance of Intellectual Property protection to our day to day activities has been repeatedly
shown to be a settled matter. Humanity seems bent on creating a world economy primarily based
on goods and services that take no material form or shape and just as the nature of property
changes, so is the system of its exploitation. This paper looks at the evolution, nature, and scope
of the traditional fields of Intellectual Property Law that seek to protect the rights of inventors
and authors to control or exclude others from unauthorized exploitation of their mental creations.
The body of laws that evolve to provide this protection has unequivocally developed into
essential jurisprudence that is necessary for the economic advance of the developed and more
especially the developing countries.
Although intellectual property systems vary from one national system to another, the basic
principles of intellectual property law and practice seem to be the same in several ways, and thus,
the paper attempts a general overview of the concepts and issues involved in this branch of law
as well as the myriad of functions they strive to serve. It has been shown that the indispensable
nature of intellectual property makes it imperative to all stakeholders to work towards a healthy
intellectual property system that will provide access to knowledge, experience, and expertise that
results in mutual benefit to all.
The concept of Intellectual Property Right
The concept of property in any economic system is complex for any reason. First, in a way,
the property is not that which is owned. Instead, it is a bundle of rights and relationships which
give arise to entitlements and ownership. What is normally called property, thereof is really the
object of property rights. Such rights typically entitle a person to use, enjoy, and dispose of off
the property as he sees fit. Secondly, the property includes a wide range of assets. some are
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tangible, such as land and vehicles, while others are intangible, such as intellectual property,
corporate stocks, and the goodwill of a business. Even the right to earn a livelihood is seen as a
property interest. A society‘s view of the property is subject to change over time.
Kinds of Property
All property is either corporeal or incorporeal. It is either visible and tangible or invisible and
intangible, a house is corporeal, but the annual rent payable for its occupation is incorporeal
property is the right to ownership in material things; incorporeal property is any other proprietary
right in rem. the incorporeal property itself of two kinds, namely
(1) Jura in re aliema or encumbrances, whether over material or immaterial things (for example,
leases, mortgages, and servitudes) and,
(2) Jura in re propia over immaterial things (for example, patents, copyrights, and trademarks).
Incorporeal property is defined as that property that has no corpus or body.
International Convention- There are following convention----
The Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property is one of the first and most
important of the various multilateral treaties protecting intellectual property. During the last
century, before the existence of any international convention in the field of industrial property, it
was difficult to obtain protection for industrial property rights in the various countries of the
world because of the diversity of their laws.
Principal Features of the Paris Convention
The provisions of the Paris Convention contain following four feature-
1. National treatment.
2. Right of priority.
3. Independence of Patents.
4. Administrative framework and final clause.
The Berne convention for the protection of literary and artistic works
The Berne Convention, adopted in 1886, deals with the protection of works and the rights of
their authors. It provides creators such as authors, musicians, poets, painters etc. with the means
to control how their works are used, by whom, and on what terms. It is based on three basic
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principles and contains a series of provisions determining the minimum protection to be granted,
as well as special provisions available to developing countries that want to make use of them.
Basic Principles
1. National treatment.
2. Automatic protection.
3. Independence.
The patent cooperation treaty (pct)
The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection
internationally for their inventions, helps patent Offices with their patent granting decisions, and
facilitates public access to a wealth of technical information relating to those inventions. By
filing one international patent application under the PCT, applicants can simultaneously seek
protection for an invention in 148 countries throughout the world.
World Intellectual Property Organization (WIPO)
Intellectual property includes industrial property, such as inventions, trademarks, and designs, on
the one hand, and the objects of copyright and neighboring rights on the other. Until a century
ago, there were no international instruments for the protection of intellectual property.
Legislative provisions for the protection of inventors, writers, dramatists, and other creators of
intellectual property varied from country to country and could be effective only within the
borders of states adopting them. It came to be widely recognized that adequate protection of
industrial property encourages industrialization, investment, and honest trade. That the arts
would be advanced by legal safeguards in favor of their practitioners had long been argued, but
such safeguards were difficult to devise and enact into law. The Paris Convention of 20 March
1883 and the Bern Convention of 9 September 1886 represented initial steps toward the
systematic provision of the two sorts of international protection that led eventually to the creation
of the World Intellectual Property Organization (WIPO).
World Trade Organization (WTO)
The World Trade Organization (WTO) is the only global international organization dealing with
the rules of trade between nations. At its heart are the WTO agreements, negotiated and signed
by the bulk of the world‘s trading nations and ratified in their parliaments. The goal is to help
producers of goods and services, exporters, and importers conduct their business.
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Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)
The TRIPs Agreement which came into effect on 1st January 1995 is the most
comprehensive multilateral agreement on intellectual property. It established a framework of
rules of minimum levels of protection for intellectual property rights (IPRs) and the means to
ensure their enforcement. These rules concern the protection of copyright (for literary and artistic
works, such, such as novels, poems, plays, films, musical works, painting, photographs,
sculptures, and architectural designs, and the rights of performers, producers of sound recordings
and broadcasting organizations, the protection of patents for inventions, trademarks,
geographical indications, industrial design, lay-out, designs of integrated circuits and undisclosed
information.
Q.2 What inventions are patentable and what are not patentable? Discuss (Unit –I)
Patentable Subject Matter
The invention must be a patentable subject-matter. Patentable subject-matter includes any

process, machine, article of manufacture or composition of matter. The definition of the term
―invention‖ is very wide and can include computer hardware and software. An invention is a
patentable subject-matter must satisfy the following three conditions-
1. Novelty (Newness)
2. Inventive step (Non-obviousness)
3. Usefulness (Industrially applicable)
1. Novelty
Novelty is assessed in the global context. An invention will cease to be novel if it has
been disclosed in the public through any type of publication anywhere in the world before filling
a patent application. Prior use of the invention in the country of interest before the filing date can
also destroy the novelty.
In Bishwanath Prasad Radhey Shyam vs. Hindustan Metal Industries, the Supreme Court
held that a patent is granted only for an invention that must be new and useful. That is to say, it
must have novelty and utility. It is essential for the validity of a patent that it must be the
inventor‘s own discovery as opposed to the mere verification of what was already known before
the date of the patent.
The Delhi High Court in the case of Raj Prakash vs. Mangat Ram Choudhary, observed as
follows:
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The invention is to find out or discover something not found or discovered by anyone before and
the invention doesn't need to be anything complicated and the essential thing is that the inventor
was the first one to adopt it and the principle thereof is that every simple invention that is
claimed, so long as it is something novel or new.
2. Inventive step (Non-obviousness)
A patent application involves an inventive step if the proposed invention is not obvious to a
person skilled in the art, i.e., skill in the subject-matter of the patent application. In other words,
a very simple invention can qualify for a patent, if there is an inventive step between the
proposed patent and the prior art at that part of the time, then an invention has taken place. A
mere ‗scintilla‘ of the invention is sufficient to find a valid patent.
3. Usefulness (Industrially applicable)
An invention for the grant of the patent must be capable of industrial application.
Concerning an invention, capable of industrial application means that the invention is capable of
being made or used in the industry. It must possess utility. No valid patent can be granted for an
invention devoid of utility or industrial application.
Inventions not Patentable
Section 3 of the Act provides that the following are not inventions within the meaning of this act
and therefore, not patentable-
1. An invention which is frivolous or which claims anything obviously contrary to well-

established natural laws.
2. An invention the primary or intended use or commercial exploitation of which could be

contrary to public order or morality or which causes serious prejudice to human, animal or plant
life or health or to the environment.
3. The mere discovery of a scientific principle or the formulation of an abstract theory or

discovery of any living thing or non-living substance occurring in the nature.
4. A substance obtained by a mere admixture resulting only in the aggregation of the properties
of the components thereof or a process for producing such substance.
5. The mere arrangement or re-arrangement or duplication of known devices each functioning

independently of one another in a know way.
6. A method of agriculture or horticulture.
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7. Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic, or
other treatment of human being or any process for a similar treatment of animals to render them
free of disease or to increase their economic value or that of their products.
8. plants and animals in whole or any part thereof other than microorganism but including seeds,
varieties and species and essentially biological processes for production or propagation of plants
and animals.
9. A mathematical or business method or a computer programme per se or algorithms.
10. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
including cinematographic works and television productions.
11. A mere scheme or rule or method of performing mental act or method of playing game.
12. A presentation of information.
13. Topography of integrated circuits.
14. An invention which, in effect, is traditional knowledge or which is an aggregation or

duplication of known properties of traditionally known component or components.
15. An invention relating to atomic energy.
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Q.3 Short notes
1. Enforcement of Intellectual Property Rights (Unit –I)
Enforcement of IPRs is the most crucial part of every Intellectual Property (IP) regime.
The TRIPs Agreement 'mandates some minimum requirements for the implementation of
Intellectual Property laws. It demands civil remedies by way of injunction and damages in case
of infringement of intellectual property. Almost all the remedies available against infringement
of intellectual property are similar. Civil Remedies are governed by the Code of Civil Procedure
and the Indian Penal Code provides penal remedies.
Remedies available against infringement of copyright are :
1. Civil remedies which include injunction, damages or account of profits, delivery up of

infringing copies and damages for conversion.
2. Criminal remedies include imprisonment, fines, or .both, seizure of infringing copies.
3. Administrative remedies consist of moving the Registrar of Copyrights to ban the

import of infringing copies into India where the infringement is by way of such importation and
the delivery of confiscated infringing copies to the copyright holder.
The civil remedies to which a plaintiff is entitled in case of the infringement of trade
mark are—
(1) An injunction restraining further use of the infringing mark,
(2) Damages or on account of profits, and
(3) Order for delivery up of infringing labels and marks for destruction or eraser. The
plaintiff is entitled to the above reliefs in a suit for infringement and passing off action. Besides,
criminal remedy is also available against an infringer and an infringer may be punished by
imprisonment and fine. In case of an unregistered trade mark, common law rights have been
protected whereby the proprietor of a trade mark, whether registered or unregistered, may sue for
passing off arising out of the use by the defendant of any trade mark which is identical or
deceptively similar to the plaintiff's trade mark.
In case of infringement of design, i.e., piracy of registered design the infringer shall be
liable to pay tile registered proprietor of the design a sum not exceeding twenty-five thousand
rupees recoverable as a contract debt, or if the proprietor elects to bring a suit for the recovery of
damages for any such infringement and for an injunction against the repetition thereof, to pay
such damages as may be awarded and to be restrained by injunction accordingly.
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Unit – II
Q.1 What do you mean by Patent ? What are the Salient features of this rights ? how it
was originated. What is its object? (Unit –II)
Ans. Meaning of the term “Patent”
A patent is a set of exclusive rights granted by the Government to a patentee (the inventor
or assignee) for a fixed period of time in exchange for the regulated public disclosure of certain
details of a device, method, process, or composition of matter known as an invention which is
new, inventive and useful or industrially applicable.
The exclusive right granted to a patentee is the right to prevent or exclude others from
making, using selling offers to sell or importing the claimed invention. The rights given to the
patentee do not include the right to make, use or sell the invention themselves.
Salient features of Patent
In Imperial Chemical Industries vs. Controller General, Patents, the Calcutta High Court held
that the following propositions are the salient features of a patent-
1. The patent must be in respect of an invention and not a discovery.
2. In respect of one single invention there must be one single patent.
3. A patent may be in respect of a substance or in respect of a process.
4. But it is not possible to bifurcate a patent and state that one relates to the substance and the
order to the process.
5. To have a complete patent, the specification and the claims must be clearly and distinctly
mentioned.
6. It is the claims and claims alone which constitute the patent.
Origin of the Patent
The term ―Patent‖ originates from the Latin word ―Patere‖ which means ―to lay open‖
i.e., make available for public inspection, and the term ―Letters patents‖ is derived from the Latin
word ―Letters Patents‖. Letters patent are a type of legal instruments in the form of an open
letter issued by a monarch or Government granting an office, a right monopoly, title, or status to
someone or some entity such as a corporation. The opposite of letter patent is letters close which
are personal in nature and sealed so that only the recipient can read the contents of the letter.
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Letters patent originally denote Royal decrees granting exclusive rights to certain individuals or
businesses.
Objective of Patent Law
The object of Patent Law is to encourage scientific research, new technology and
industrial progress. Grant of exclusive privilege to own, use or sell the method or the product
patented for a limited period, stimulates new inventions of commercial utility. The price of the
grant of the monopoly is the disclosure of the invention at the patent office, which, after the
expiry of the fixed period of the monopoly, passes with the public domain. The fundamental
principle of Patent Law is that a patent is granted only for an invention that must be new and
useful. That is to say, it must have novelty and utility. It is essential for the validity of a patent
that it must be the inventor's own discovery as opposed to mere verification of what was already
known before the date of the patent.
Q.2 Subject to what condition Patents can be granted & of patent under the patent act
1970. What rights are conferred on a Patent. (Unit –II)
Ans.
The Nature of Patent Rights
A patent is essentially a contract between the State and the inventor. In return for disclosure of
the invention to the public the inventor is granted a monopoly, limited in time (usually to a
maximum of 20 years). It follows directly from this basic principle that if the invention is
already in the public domain then the inventor brings nothing to his side of the deal. Thus, if you
disclose your invention (other than under terms of confidentiality) before you file a patent
application you can expect to lose the right to an enforceable monopoly.
It is also important to understand that a patent gives you the right to stop other people from using
your invention without your permission. It does not give you the right to implement your
invention. For example, if you invented a new steering system for cars you would not be free to
make and sell cars having that new steering system if someone else still had a valid patent
covering the basic invention of the car.
Rights of Patentees
The grant of patent is conditional. Section 47 of the act provides that the grant of a patent will be
subject to the following condition that-
1. Any machine, apparatus or other article in respect of which the patent is granted or any article
made by using a process in respect of which the patent is granted, may be imported or made by
or on behalf of the Government for the purpose merely of its own use.
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2. Any process in respect of which the patent is granted may be used by or on behalf of the
Government for the purpose merely if its own use.
3. any machine, apparatus or another article in respect of which the patent is granted or any
articles made by the use of the process in respect of which the patent is granted, may be made or
used and any process in respect of which the patent is granted may be used, by any person for the
purpose merely of experiment or research including the imparting of instructions to the public.
1. Right of exploit patent
The patentee thus has the exclusive right to make use, exercise sells import, or distribute
the patented article in India or to use or exercise the method or process of the patent is for a
process. This right is exercisable during the term of the patent only.
Under section 48 of the act, a patent granted shall confer on the patentee the exclusive
right by himself, his agents, or licensees to make use, exercise, sell or distribute the invention in
India.
2. Right to transfer the patent

A patentee has the power to assign, grant a license, or otherwise deal with the patent for
any consideration. Section 70 of the Act confers right on the person or persons registered as
grantee or proprietor of a patent the power to assign, grant licenses under, or otherwise, deal with
the patent and to give effectual receipts for any consideration for any such assignment license or
dealing. Any equities in respect of the patent can be enforced in the like manner as in respect of
any other movable property.
3. Right to surrender the patent

A patentee has a right to surrender his patent. Section 63 of the Act states that a patentee
may, at any time by giving notice to the controller, offer to surrender his patent. Where such an
offer to surrender is made by the patentee the controller before accepting the offer of the
surrender publishes the offer and also notifies every person other than the patentee whose name
appears in the register as having an interest in the patent.
4. Right to sue for infringement of the patent

A patentee has a right of action to restrain the infringement of a patent during the
continuance of the term of the patent. The Act confers a right on the patentee to sue for
infringement to take legal action for the protection of his patent.
Exceptions and Limitations
The Act confers certain exclusive rights on the patentee. There are certain limitation on
the rights granted to the patentee under the Act. These limitations are-
1. Use of invention for purpose of Government.
2. Compulsory licences.
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3. Revocation for non-working of patents.
4. Inventions for defence purpose.
5. Limitation on restored patents.
Q.3 what amounts to infringement of patent ? What remedy does a patentee hare of
such infringement. (Unit –II)
Ans. Patent infringement consist of the unauthorized making, using, offering for sale or selling
any patented invention during the term of the patent.
What constitute Patent Infringement
Even if the claims do not literally match the infringing product or process, it is possible that a
court would find an infringement by applying what is known as the ―doctrine of equivalents‖,
that is, the invention in the patent and the allegedly infringing product or process are sufficiently
equivalent in what they do and how they do it to warrant a finding to infringement. The
following acts amount to infringement:
1. The colorable imitation of an invention.
2. Immaterial variation in the invention.
3. Mechanical equivalents.
4. Taking the essential features of the invention.
Action for infringement
In case of an infringement of patent, the right to move the court of law is vested with any
person who holds a valid claim on the subject matter of the patent, than is to say, a patentee has a
right to sue when a person does any act that is within the rights conferred on the patentee.
Reliefs in suits for Infringement of Patent
Section 108 of the Act provides that the reliefs which a court may grant in any suit for
infringement include an injunction and at the opinion of the plaintiff, either damages or an
account of profits. Further the court may also order that goods which are found to be
infringement and materials and implement, order the predominant use of which is in the creation
of the infringement goods be seized, forfeited or destroyed without payment of any
compensation.
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1. An injunction to prevent further infringements that led to the dispute in the first instance.
2.Damages to compensate for loss suffered as a consequence of the infringement or, at the option
of the plaintiff, an account of profit made by the infringer as a result of the infringement.
3. An order for the infringing articles that are the subject of the dispute be seized forfeited or
destroyed or deliver-up and
4. A declaration that the patent was valid and infringed.
1.Injunction
An injunction may be two kinds-(1) temporary or interlocutory; and (2) permanent or

perpetual. A temporary or an interlocutory injunction is a provisional remedy granted to restrain
activity temporarily and to preserve the existing state of things between the parties until the court
can make a final decision after trial. A permanent injunction is a final order of the court requiring
a party to do something or to refrain from doing or continuing to do a particular act.
The grant of an interlocutory injunction during the pendency of the patent infringement
proceeding is a matter requiring the existence of discretion of the court. While exercising the
discretion the court applies the following tests;
(i) Whether the plaintiff has a prima facie case.
(ii) Whether the balance of convenience is in favor of the plaintiff.
(iii) Whether the plaintiff would suffer irreparable injury if this prayer for an interlocutory
injunction is disallowed.
2. Damages/Account of Profit
The purpose of an award of damages is to compensate the plaintiff for the loss or injury
caused to him by the defendant's infringement of the patent. Damages can be assessed based on
the loss caused to the plaintiff or profit to the infringer. In Economic torts. Damages should be
assessed to put the injured party in the position he would have been in if he had not sustained the
wrong. The amount of damages is a question of fact and patent infringement damages cannot be
speculative, but need not be proved with absolute precision.
3. Delivery-up
The act provides that the court may order that the foods which are found to be
infringement and materials and implement, the predominant use of which is in the creation of
infringement goods shall be seized, forfeited, or destroyed., as the court deems for under the
circumstances of the case without payment of any compensation.
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Q.4 What rights are available to the proprietor of a registered design. ? Is registration of
lapsed design possible ? What is the procedure for restoration of lapsed design. ? (Unit –
II)
Ans. A registered proprietor of the design has the following right.
1. The right to exclusive use of the design- Registration of a design grants the registered
proprietor the exclusive right in respect to the articles to which the design was registered
and similar designs to make or import the products for sale or for use in a business where
a third party infringes the rights of the owner.
2. Right to assign, etc- The registered proprietor of the design has power absolutely to assign,
grant licenses as to, or otherwise deal with the design and to give effectual receipts for
any consideration for any such assignment, license or dealing. Any equities in respect of
the design may be enforced in like manner as in respect of any other movable property.
3. Right protect the design from piracy- Infringement of copyright in design is termed as
―Piracy of Design‖. Any person responsible for infringing the monopoly of the registered
proprietor of the design is guilty of piracy and is liable to a fine. The registered proprietor
is also granted the right to bring a suit for recovery of damages or for an injunction
against the repetition of such piracy provided that the total sum recoverable in respect of
any one design shall not exceed fifty thousand rupees.
Restoration of Lapsed Design
If the registration of a design is not renewed in the prescribed manner after the expiration
of ten years from the date of registration, the registration will lapse and cease to affect.
Where the registration of a design has lapsed owing to the non-payment of the renewal
fee, it is possible under circumstances to restore the design and the controller can restore
registration of a lapsed design.
Section 12 of the act deals with the restoration of lapsed design. It provides that were a
design has ceased to have effect because of failure to pay the fee for an extension of
copyright, the proprietor of such design or his legal representative and where the design
was held by two or more persons jointly, then, with the leave of the controller one or
more of them without joining others can make an application for the restoration of the
design in the prescribed manner on payment of such fee as may be prescribed.
A lapsed design restoration may be restored only if (i) the lapsing of the design
registration was unintentional ; and (ii) there was no undue delay in the making of an
application for the restoration of the design registration. Section 13 of the act provides
that if after hearing the applicant the Controller is satisfied that the failure to pay the fee
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for extension of the period of copyright was unintentional and that there has been no
undue delay in the making of the application, the controller shall, upon payment of any
unpaid fee for the extension of the period of copyright together with the prescribed fee,
restore the registration of the design.
Right of proprietor of lapsed design after restoration. According to section 14 of the

act, where the registration of a design is restored, the rights of the registered proprietor
shall be subject to such provisions as may be prescribed and to such other provisions as
the Controller thinks fir to impose for the protection or compensation of persons who
may have begun to avail themselves of, or have taken definite steps by contract or
otherwise to avail themselves of, the benefit of applying the design between the date
when the registration of the design ceased to have effect and the date of the restoration of
the registration of the design.
The registered proprietor of the design is barred from instituting a suit or other
proceeding in respect of piracy of a registered design or infringement of the copyright in
such design committed between the date on which the registration of the design ceased t
have effect and the date if the restoration of the design.
Q.5 What is the Meaning of Design? What its procedure of registration and Cancelation?
(Unit –II)
Ans. ―Design means only the features of shape, configuration, pattern or composition of lines
or colors applied to any article whether in two-dimensional or three-dimensional or in both
forms, by any industrial process or means, whether manual, mechanical or chemical, separate or
combined, which in the finished article appeal to and are judged solely by the eye, but does not
include any mode or principle of construction or anything is substance a mere mechanical
device and does not include any trade mark as defined in section 2 (1) (zb) of the Trade Mark
Act, 1999 or property mark as defined in Section 479 of the Indian Panel Code or any article
work as defined in clause (c) of Section 2 of the Copyright Act, 1957.
In National Trading Co. vs. Monica Chawla, the Delhi High Court held that there was pre-
publication if the design was disclosed to any individual member of the public who was not
under an obligation to keep it a secret. Disclosure to such person was sufficient to constitute
publication of a design.
In Warner Motors Ltd. vs. A.Q. Garage Ltd., the plaintiff had obtained a patent in respect of a
frame for motorcycles. Subsequently, the frame was also registered as an industrial design. When
the plaintiff filed a suit for infringement of design on the ground of registration of the design the
defendants contended that the registration n the design was invalid as the plaintiff had earlier
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applied for a patent in respect of the same design. The contention was however, rejected by the
Court holding that the plaintiff has a right to elect between the protection under the patent and
protection in the copyright of a design.
Application for registration of designs
Section 5 of the Act lays down that any person who claims to be the proprietor of any new or
original design which is not previously published in any country can apply for the registration of
the design.
Section 2 of the act defines ―proprietor‖ of a new or original design‖ as follows:
(i) Where the author of the design, for good consideration, executes the work for some other
person, means the person for whom the design is so executed.
(ii) Where any person acquires the design or the right to apply design to any article, either
exclusive of any other person or otherwise, means in the respect and to the extent in and to which
the design or right has been so acquired, the person by whom the design or right is so acquired
and
(iii) In any other case, means the author of the design.
Procedure of Registration of a Design
The proprietor of a new or original design has to apply for registration of the design.
Section 5 (1) of the Act lays down that the Controller may on an application made by any person
claiming to be the proprietor of any new or original design not previously published in any
country and which is not contrary to public order or morality, register the design under the Act.
The application in the Patent Office in Form-1 in prescribed manner and should be accompanied
by the prescribed fee of Rs. 1000/-.
If it is so required by the controller, the applicant should state the purpose for which the article is
used. The applicant is also to endorse on the application and each of the representation a brief
statement of the novelty he claims for his design. If the controller in any case so requires, the
applicant should supply one or more representation or specimens of the design in addition to
those supplied with the application.
Cancellation of registration
Section 19 of the Act deals with the cancellation of registration of designs. It provides
that any person interested may present a petition for the cancellation of the registration of a
design at any time after the registration of the design to the Controller on any of the following
grounds, namely.—
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( a ) that the design has been previously published in India; or
(b) that it has been published in India or any other country before the date of
registration; or
(c) that the design is not new or original design; or
(d) that the design is not registrable under this Act; or
(e) that it is not a design as defined under clause (d) of Section 2
An appeal will be from any order of the Controller to the High Court, and the Controller
may at any time refer any such petition to the High Court and the High Court will decide any
petition so referred.
Q.6 Short notes
1 .Specification (Unit –II)
One of the purposes of the Patent Law is to encourage inventive activities through the promotion
of the protection and utilization of inventions, thereby contributing to the development of the
industry. The Patent Law has adopted a system of disclosing the details of an invention as the
subject of its protection and utilization using its specification. The specification, which is also
called the disclosure, is a written description of an invention. The patent specification is drafted
both to satisfy the written requirements of patentability, as well as to define the scope of claims.
A specification may be either –
(1) Provisional specification; and
(2) Complete specification.
Provisional Specification
A provisional specification is a very important document to establish the priority of the invention
in case the disclosed invention is only at a conceptual stage and a delay is expected in submitting
a full and specific description of the invention. It is a provisional intimation of the invention to
the Controller. A patent application accompanied by provisional specification does not confer
any legal patent rights to the applicants.
Complete Specification
A complete specification is a much more intricate and detailed document than the provisional
specification; great skill and much thought are involved in its preparation. The complete
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specification defines the invention in both technical and legal terms and includes claims, which
define the invention‘s scope or legal boundaries. The complete specification may include
improvements to the original idea described in the earlier filed provisional specification.
Contents of Specification
A complete specification must contain besides title sufficiently indicating the subject-matter the
following-
(a) a full and particular description of the invention and its operation or use and the method
by which it is to be performed;
(b) a disclosure of the best method of performing the invention which is known to the
applicant and for which he is entitled to claim protection;
(c) a claim or claims defining the scope of the invention for which protection is claimed; and
(d) an abstract to provide technical information on the invention.
2. Piracy of Registered Design (Unit –II)
Infringement of copyright in a design is termed as ―piracy of registered design‖. Section 22 of

the Designs Act 2000 deals with the provision of piracy of the registered design. It is in fact, the
same as the infringement of copyright. During the existence of copyright in any design it is not
lawful for any person to do the following acts without the license or written consent of the
registered proprietor of the design.
(a) For sale to apply or cause to apply to any article in any class of articles in which the
design is registered, the design or any fraudulent or obvious imitation thereof, or to do
anything to enable the design to be so applied; or
(b) To import for sale any article belonging to the class in which the design has been
registered and to which the design or any fraudulent or obvious imitating thereof has been
applied; or
(c) Knowing that the design or any fraudulent or obvious imitation thereof has been applied
to any article to any class of articles in which the design is registered to publish or expose
for sale that article.
Polyaire Pty. Ltd. V. K-Aire Pty. Ltd., obvious imitation implies a process of subconscious
copying, although in theory a design registration could be infringed by a person who arrived at
the identical or very similar design wholly independently; but in practice, given the specific and
particular representation of a registered design, this is unlikely to occur.
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Remedies against Piracy.-
The remedies provided under sub-section (2) of Section 22 of the Act are, only of civil nature.
There is no provision for criminal proceedings against the piracy of designs. The reliefs which
may be usually awarded in such a suit are-
(1) Injunction (temporary or permanent).
(2) Damages.
Injunction.- Injunction may be temporary or permanent. The principles applicable to the grant
of interlocutory injunction in the case of an infringement of patent applications in the case of the
piracy f registered design. They are as follows.-
1. The plaintiff should make out a prima facie case.
2. The plaintiff should establish the balance of convenience in his favor.
3. Interlocutory injunction may not be granted when the plaintiff can be monetarily
compensated in the event of his success in the action.
4. Interlocutory will not be granted if there are substantial grounds for attacking the validity
of the registration of a design.
5. Interlocutory injunction will not be granted if the defendant gives an undertaking to keep
an account if he is the person of substance and the undertaking will give the relief which
the plaintiff requires.
6. If an injunction is granted the plaintiff should give a cross-undertaking in damages to

recoup the defendant for any loss sustained if the plaintiff fails in the action.
7. If there is undue and explained the delay in seeking relief, interim relief will be refused.
Damages/Compensation.-
If the registered proprietor of the design (the plaintiff) succeeds in action for the infringement of
the registered design the defendant (the infringer) is liable to pay by way of compensation a sum
not exceeding twenty-five thousand rupees recoverable as a contract debt subject to a maximum
of fifty thousand rupees.
Defenses available to the defendant.-
In a suit for the piracy of a registered design, a defendant may avail following defenses.-
(a) That the design has been previously registered in India; or
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(b) It has been published in India or in any other country prior to the date of registration; a
(c) That the design is not new or original design; or
(d) That the design is not registrable under this Act; or
(e) That if is not a design as defined under clause (d) of Section 2: or
(f) That the plaintiff has no right to sue as he is not a registered proprietor of the alleged
design;
(g) That there are unreasonable delay and acquiescence.
3. Explain the salient features of Design (Unit –II)
Since the enactment of the Designs Act, 1911 considerable progress has been made in the
field of science and technology. The legal system of the protection of industrial designs requires
to be made more efficient to ensure effective protection to registered designs. It is also required
to promote design activity to promote the design element in an article of production! The
proposed Designs Bill is essentially aimed to balance these interests. It is also intended to ensure
that the law does not unnecessarily extend protection beyond what is necessary to create the
required incentive for design activity while removing an impediment to the free use of available
designs. To achieve these purposes, the Bill incorporates inter alia, the following names.—
(a) it enlarges the scope of the definition of "article" and "design" and introduces a
definition of "original";
(b) it amplifies the scope of "prior publication";
(c) it incorporates the provisions for delegation of powers of the Controller to other
officers and duties of examiners;
(d) it contains provisions for identification of non-registrable designs;
(e) it contains a provision for substitution of application before registration of a design;
(f) it introduces an internationally followed system of classification in the place of Indian

classification;
(g) it contains a provision for maintaining the Register of designs on the computer;
(h) it contains a provision for restoration of lapsed designs;
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(i) it contains a provision for appeal against the order of the Controller before the High
Court instead of Central Government as existing;
(j) it revokes the period of secrecy of two years of a registered design;
(k) it provides for compulsory registration of any document for transfer of right in the
registered design;
(1) it introduces additional grounds in cancellation proceedings and makes provisions for
initiating the cancellation proceedings before the Controller in place of High Court;
(m) it enhances the quantum of penalty imposed for infringement of registered designs;
(n) it contains provisions for grounds of cancellation to be taken a defense in the

infringement proceedings to be initiated in any Court and below the Court of the District Judge;
(o) it enhances the initial period of registration from 5 to 10 years, to be followed by a

further extension of a period of five years;
(p) it contains provisions for allowing of priority to other convention countries belonging
to the group of countries or inter-Governmental organizations apart from the United Kingdom
and other Commonwealth Countries;
(q) it contains provisions for the avoidance of certain restrictive conditions for the
control of anti-competitive practices in contractual licenses;
(r) it contains specific provisions to protect the security of India.
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Unit – III
Q.1 what do you mean by trade mark and what is its functions? Discuss (Unit –III)
Ans. Definition of Trade Mark
A trademark is frequently defined as a mark, sign or, symbol the primary and proper
function of which is to identify the origin or ownership of the goods or services to which it is
applied.
Statutory definition of Trade Mark
Trade Mark means a mark capable of being represented graphically and which is capable
of distinguishing the goods or services of the person from those of others and may
include the shape of goods their packaging and combination of colors. And
(i) A registered trademark or a mark used about goods or services to indicate or to indicate a
connection in the course of trade between the goods or service, as the case may be, and
some person having the right as the proprietor to use the mark; and
(ii) Concerning other provisions of this Act, a mark used or proposed to be used about goods or
services to indicate or so to indicate a connection in the course of trade between the
goods or indicate a connection in the course of trade between the goods or services, as the
case may be and some person having the right, either as proprietor or by way of permitted
user to use the mark whether with or without any indication of the identity if that person
and includes a certification trademark or collective mark.
A trademark primarily means a mark and a mark includes a device brand, heading, label,
name, signature, word, letter, numeral, shape of goods, packaging or combination of
colors and any combination thereof.
In Gorbatschow Vodka KG v. John Distilleries Ltd., the Bombay High Court observed that
under the Trade Marks Act 1999 the shape of goods is now statutorily recognized as
being a constituent element of a trade mark. Section 2 (1) (ZB) of the trade mark act
defines the expression ―trade mark:‖ to mean ―a mark capable of being represented
graphically and which is capable of distinguishing the goods or services of one person
from those of others‖ and to include the shape of goods, their packaging, and
combination of colors.
Trade description
Thus, a trade mark has following things:
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1. A trademark is a mark that includes a device brand, heading, label, name, signature, word,
letter, numeral, shape of goods, packaging or combination of colors and any combination
thereof.
2. The mark must be capable of being represented graphically.
3. The mark must be capable of distinguishing the goods or services of one person from those of
others.
4. A trademark can be in relation not only to its existing users but also to the proposed use. In
other words, the mark must be used or proposed to be used concerning goods or services.
5. The use of a mark must be to indicate a connection in the court of trade between the goods or
services and some person having the right as the proprietor to use the mark.
6. The right to proprietorship of a trademark may be acquired by registration under the Act or by
use concerning particular goods or services.
Function of a trade mark
1. A trademark identifies the goods or services with which it is associated and their origin. Thus
it necessary that a mark must be distinctive, that is, able to be easily distinguished from the
identifying futures of the goods and services of other producers. If the only function of a
trademark is to guarantee the origin, it is the proprietor‘s interest that is being protected.
2. A trademark guarantees its quality. Identifying products is of small value to modern

consumers it also brings a reputation for quality and reliability.
A trademark advertises the product. Today, it is primarily by advertising that reputations are
created and maintained. Trademarks function as a prime instrument in advertising and selling
goods.
3. a trademark creates an image of the product in the minds of the public particularly consumers
or prospective consumers of such goods. It facilities proprietors attempt to cultivate different
images for their goods which may be beneficial to consumers through buying into the image of
goods which represent value or a lifestyle that they aspire to.
4. Some value identified trademarks as having a cultural function, forming sound icons that are
used in wider discourse to identify ideas and strengthen arguments because of the degree of
recognition that they have in the eyes of the consumer.
What is good Trade Mark
A good trade mark should have following attributes:
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1. A good trademark should possess distinctiveness or be capable of distinguishing goods or

services from those goods or services.
2. A mark can be a word, latter. Device, logo, symbol or numeral or any combination thereof. It
is better if it is easy and simple in design, logo, word to be remembered by the unwary purchaser.
3. The word should be easy to speak, spell, and remember. The ideal word for a trademark is an
invented, imaginative, or coined word.
4. The words, marks that are laudatory in nature or which directly describe the character or the
quality of goods should not be adopted.
5. In the case of a device mark the device should be capable of being described by a single word.
6. It should be short.
7. It should appeal to the eye as well as to the ear
8. The geographical names connected with the reputation or quality of the goods for which
registration is sought not to be adopted.
9. It is advised not to adopt, imitate other person‘s trademark or any other well well-known
trademark, even if the goods or trades are different.
Trade Mark and Service Mark
A trademark is a mark that identifies and distinguishes the source of the goods or
products of one party from those of others. A service mark also a mark that identifies and
distinguishes the source of a service rather than goods or products some examples of services
include banking, communication, education, financing, insurance, boarding. Lodging,
entertainment, etc.
Trade Mark and Property Mark
A trademark is a mark for denoting that goods are the manufacture or merchandise of a
particular person. A property mark is used for denoting that movable property belongs to a
particular person. The trademark refers to ownership of a symbol and the property mark to right
in property.
Trade name
A trade name is a name a business used to identify itself. The trade name has the statute of a
trademark. It is generally considered the name a business uses for advertising and sales purposes.
It is often the name the general public sees on signs, the internet, and advertisements. It is a name
by which something is known in a particular trade or business.
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Domain Name
A domain name provides an address for computers on the internet. But the internet has
developed from a mere means of communication to a mode of carrying on commercial activity.
With the increase of commercial activity on the internet, a domain name is also used as a
business identifier.
In Rediff Communication Ltd. vs. Cyberbooth, both the plaintiffs and the defendants have a
common field of activity. They are operating on the website and providing information of similar
nature. Both the plaintiff and the defendants offer a facility of sale of books, music cassettes, and
compact discs and flowers. The Bombay High Court held that there can be no doubt that the two
marks/domain names, REDIFF of the plaintiff and REDIFF of the defendants are almost similar.
Q.2 What is the procedure for the registration of trade mark ? (Unit –III)
Ans. Procedure for Registration
1.Application for registration
Section 18 of the act deals with the procedure for making an application for registration.
Any person/entity who claims to be the proprietor of a trademark used or proposed to be
used by him and who is desirous of registering it can apply in writing to the register for
the registration of his trademarks. An application may be made in the name of an
individual partner of a firm, a Corporation any Government Department, trust or joint
applicants.
2. Withdrawal of acceptance
Section 19 of the act provides for the withdrawal of acceptance of an application, before its
registration when the acceptance is in error, etc. after hearing the applicant. Where, after the
acceptance of an application for registration of a trademark but before its registration, the register
is satisfied- (a) That the application has been accepted in error, or (b) That in the circumstances
of the case the trade mark should not be registered or should be registered subject to conditions
or limitations or to conditions additional to or different from the conditions or limitations subject
to which the application has been accepted, the register may, after hearing the applicant if he so
desires, withdraw the acceptance and proceeds as if the application had not to be accepted.
3. Advertising of application
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Where an application for registration of a trade mark has been accepted whether
absolutely or subject to conditions or limitation, the registrar will cause the application to be
advertised in the Trade Mark journal.
4. Opposition to registration
An application for the registration of a trademark is required to be advertised or re-

advertised I the Trade Marks journal ordinarily within six months of the acceptance of an
application for registration.
The notice of opposition will include a statement of the grounds upon which the opponent
objects to the registration. Registration of a mark can be opposed by any person on any of the
grounds enumerated under Section 9, 11 and 18 of the Act. The opponent can file as a ground of
opposition that the mark applied for registration:
1. Is not distinctive;
2. Is incapable of distinguishing;
3. Is descriptive;
4. Has a direct reference to the character and quality of the goods;
5. Is a geographical term which in its ordinary significance has come to be known for a
particular kind of quality of goods;
6. Comprises or contains scandalous or obscene matter or its use is prohibited under the
Emblems and Names (prevention and improper Use) act 1950;
7. Identifies with the earlier trade mark and/or similarity of the goods covered by the earlier
trade mark and
8. Is likely to cause confusion and/or deception and is liable to be prevented under the laws
of passing off or under of the law of copyright;
9. The person applying for registration is not the proprietor of the and the application has
been filed on a back date.
Correction and amendment
Section 22 of the act provides for correction of any error in or in connection with the
application or amendment of the application either before or after acceptance of the application.
The registrar may, any time, whether before or after acceptance of an application for registration,
Page 27 of 49 (2021-22)
permit the correction of any error in or in connection with the application or permit an
amendment of the application.
Registration
When an application for registration of a trade mark has been accepted and either the
application has not been opposed and the time for notice of opposition has expired or the
application has been opposed and the opposition has been decided in favor of the applicant, the
registrar registers the said trade mark within eighteen months of the filling of the application and
the trade mark when registered will be registered as of the date of the making of the application
for the registration and that date will be deemed to be the date of registration.
Q.3 What do you mean by infringement a trademark? What are its essentials? What
defense should be taken by a defendant? (Unit –III)
Ans. Trademark infringement is the interference with or violation of another party‘s trademark
rights through the unauthorized use of that party‘s mark or a confusingly similar mark. The basic
test for trademark infringement is whether the use of a trademark by one party is such that it can
create a likelihood of confusion among consumers in the relevant marketplace in relation to an
identical or similar trademark belonging to another party. A trademark does not have to be an
exact copy of another mark in order to be considered infringing.
The legal definition of infringement varies from one jurisdiction to another. The most common
standards for infringement are (a) close similarity of a mark and its associated goods and/or
services to a prior mark and its associated goods and/or services; or (b) use of a mark that creates
a likelihood of confusion, in the course of trade, with a prior mark among the relevant
consumers. Trademark law in some jurisdictions incorporates both concepts.
In Aviva Industries (India) Ltd. v. Vikas M. Tulsian, where the plaintiffs were selling clothing
and wearing apparels under the registered trade mark ‗VIVA‘. The defendants allegedly violated
the trademark ‗VIVA‘ by selling their ready-made garments with the mark ‗VIVACITY‘. There
was no evidence showing that the defendants had conducted a proper investigation to check up
whether the trade mark ‗VIVA‘ was registered by any other person. The Court held that the
defendant's mark ‗VIVACITY‘ was deceptively similar to the mark of the plaintiff ‗VIVA‘ and
the defendants actually in selling goods with mark ‗VIVACITY‘ had the effect of violating trade
mark of plaintiffs.
In Skyline Education Institute (India) Pvt. Ltd. v/ S.L. Vaswani, the court held that merely by
the use of the word ‗Skyline‘ as a prefix in the name of two institutes there is no likelihood of
such confusion because the full name of the plaintiff institute is ―Skyline Education Institute
(India) Pvt. Ltd.‖ while that of the defendants is ―Skyline Institute of Engineering and
Page 28 of 49 (2021-22)
Technology are distinctive enough. The words ―Engineering and Technology‖ used in the
defendant's name are sufficient to indicate to all concerned that, care can be taken to clarify such
confusion, even if there is any likelihood of such a confusion.
Used not constituting infringement
Section 30 of the Act States the following circumstances in which the use of the
registered trademark does not constitute infringement-
1. The use of following honest practices in industrial or commercial matters which is not such as
to take unfair advantage of or be detrimental to the distinctive character or repute of the
trademark.
2. The use concerning goods or services including the kind, quality, quantity intended purpose
value, geographical origin, the time of production of goods or rendering of service or other
characteristics of goods or services.
3. Where the trademark is registered subject to any condition or limitation, the use of the
trademark in a manner outside the scope of registration does not constitute infringement.
4. The use of a trademark by a person concerning goods adapted to form part of, or to be
accessory to, other goods or services concerning which the trademark has been used without
infringement of the right given by registration.
5. The use of a registered trademark is one of two or more registered trademark which is
identical or nearly resembles each other, in the exercise of the right to the use of that trademark
given by registration.
Action for infringement
Jurisdiction
A suit for the infringement of a registered trade mark or relating to any right in a
registered trade mark or for passing off arising out of the use by the defendant of any trade mark
which is identical with or deceptively similar to the plaintiff‘s trade mark, whether registered or
unregistered cannot be filed in any Court inferior to a District Court having jurisdiction to try the
suit. The local limits of whose jurisdiction at the time of the institution of the suit or other
proceeding the person instituting the suit or proceeding, or where there are more than one such
persons any of them actually and voluntarily resides or carries on business or personally works
for gain.
Procedure
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The jurisdiction of the Court and the procedure are governed by the Code of Civil
procedure, 1908.
Limitation
The period of limitation for filing a suit for infringement of a trade mark is three years
from the date of infringement.
Who can sue?
The persons who can file a suit for infringement of a trade mark are:
1. The registered proprietor of a trade mark or his legal heir;
2. A registered user of a trademark if the registered proprietor refuses to take any action against
the infringer;
3. An applicant for registration of the trademark provided the mark is registered before the
hearing of the suit;
4. Any one of the joint proprietor of a trademark;
5. A foreigner proprietor of a trademark registered in India when infringement occurs in India.
Who can be sued?
The persons who may be sued for infringement of a trade mark are:
1. The person who uses or threatens to use the trade mark in relation to any of the goods or
services in respect of which it is registered.
2. The master of the servant who commits the infringement.
3. The agent of the principal infringer.
4. The printers of the infringing labels.
5. The directors and promoters of a limited company if they have personally committed or
directed infringing acts.
Defenses
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The defendant may plead one or more of the following defences in an action for
infringement against him as may be applicable to his case.
1. That the plaintiff in the suit has no title to sue.
2. That the registration of the mark is not valid and is liable to be expunged.
3. That the use of the mar complained of is not an infringement of the registered trade mark or is
protected by the provisions of section 30 of the Act which lists out the acts which do not
constitute infringement.
4. That the use of the mark is not likely to deceive or cause confusion.
5. That the defendant has a statutory right to use the mark by virtue of concurrent registration.
6. That the defendant is the prior user of the disputed mark.
7. That the defendant has the right to use the marks as he has been an honest concurrent user.
8. That the plaintiff‘s mark has become the common name of the goods or has become common
to the trade.
In Wilmott vs. Barber it was held that where the plaintiff knows of his right against the
defendant and the defendant mistakenly believes that he is entitled to do what he is doing, yet the
plaintiff stands by without asserting his right, the plaintiff will be taken to have acquiesced in the
wrong.
Q.4 What remedies are available to the plaintiff in case of the infringement of trade mark.
(Unit –III)
Ans. Kinds of Relief
The relief in suits for infringement or for passing off includes injunction and at the option
of the plaintiff either damages or an account of profits, together with or without any order for the
delivering-up of the infringing labels and marks for destruction or erasure.
In brief, the relief to which a plaintiff in an action for infringement or passing off is
entitled are :
1. An injunction restraining further use of the infringing mark;
2. Damages or an account of profits;
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3. An order for the delivery-up of the infringing labels and marks for destruction or
erasure.
1. Injunction
An injunction is a specific order of the Court forbidding the commission of a wrong threatened
or the continuance of a wrongful course of action already begun.
An injunction looks to the future. It is an order of the Court directing a party to litigation to do
or refrain from doing an act. Injunctions may be temporary or perpetual. An injunction is called
prohibiting if it forbids the doing of an act and mandatory if it orders that an act can be done.
Willful disobedience of the order is punishable by contempt of the Court.
The general rules governing the grant of an injunction are contained in Sections 36-42 of the
Specific Relief Act, 1963 and Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure,
1908.
An injunction may be of the following kinds :
(a) Anton Piller order;
(b) Mareva injunction;
(c) Interlocutory injunction;
(d) Perpetual or final injunction.
(A) Anton Piller order;
In a number of cases interlocutory injunctions are not sufficient to protect intellectual

property rights against the threat of continuing infringement. This is often because the evidence
needed to sustain an application for both interim and final relief is not readily available and will
not become available through the usual processes of discovery. In such a case, the plaintiff
would be unlikely to obtain an interim injunction because he will not have the necessary
evidence.
(B) Mareva injunction
The collection of evidence and even a final judgment in favor of a plaintiff may be to no
avail if the defendant has no assets which can be used to fund any damages ordered. In order to
address this problem the Courts have formulated and developed the Mareva injunction which
operates to prevent defendants from removing assets from the jurisdiction or from disposing of
or dealing with them within the jurisdiction in such a way as to frustrate any judgment that may
be passed against them.
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(C) Interlocutory/Interim injunction
The most useful and widely used preliminary remedy is the interlocutory or interim
injunction the main purpose of which is usually described as being to preserve the status quo
until the final hearing. Although preserving the status quo as at the time of making an application
is usually the most appropriate order this is not the main concern of the interlocutory injunction.
The primary concern with which the Court is concerned in granting an interlocutory injunction is
the maintenance of a position that will most easily enable justice to be done when the final
determination is made.
(D) Perpetual or final injunction
A permanent or perpetual injunction is one that is granted by the judgment that

ultimately disposes of the injunction suit ordered at the time of final judgment. This type of
injunction must be final relief. Permanent injunctions are perpetual provided that the conditions
that produced them remain permanent.
Perpetually injunction is generally granted when the suit for infringement is finally
decided. Perpetual injunction usually follows when the grant of interim injunction against
infringement was granted at the beginning of the suit. It can also be granted in cases where no
interim injunction was granted.
(2) Damages or an Account of Profits
There are two kinds of pecuniary remedy—(1) damages, and (2) an account of profits,
available in the case of infringement of a trade mark or passing off actions:
Damages
The purpose of an award of damages is to compensate the plaintiff for the harm caused
to him. The basic principle is that damages are compensatory should not contain a punitive
element, and should be aimed at putting the plaintiff (the claimant) into the same position which
he would have been in had the wrong not been committed.
An Account of Profits
As a corollary of the injunction and an alternative to the award of damages the Court
might order a defendant to account to a plaintiff for profits made from wrong doing such as the
infringement of an intellectual property right.
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Q.5 Short notes
1. Passing off (Unit –III)
Section 135 of the Trade Mark Act, 1999 provides that the relief which a court may grant in any
suit for infringement or for passing off includes injunction (subject to such terms, if any, as the
court thinks fit) and at the option of the plaintiff, either damages or on account of profits,
together with or without any order for the delivery up of the infringing labels and marks for
destruction or erasure.
The order of injunction may include an ex-parte injunction or any interlocutory order for any of
the following matters, namely :
(a) For the discovery of documents;
(b) Preserving of infringing goods, documents or other evidence which are related to the
subject-matter of the suit;
(c) Restraining the defendant from disposing of or dealing with his assets in a manner which
may adversely affect plaintiff‘s ability to recover damages, costs or other pecuniary
remedies which may be finally awarded to the plaintiff.
Kinds of Relief
The relief in suits for infringement or for passing off includes injunction and at the option of the
plaintiff either damages or an account of profits, together with or without any order for the
delivering-up of the infringing labels and marks for destruction or erasure.
In brief, the relief to which a plaintiff in an action for infringement or passing off is entitled are:
1. An injunction restraining further use of the infringing marks;
2. Damages or an account of profits;
3. An order for the delivery up of the infringing labels and marks for the destruction or
erasure.
Page 34 of 49 (2021-22)
2. Anton Piller order (Unit –III)
In several cases, interlocutory injunctions are not sufficient to protect intellectual property rights
against the threat of continuing infringement. This is often because the evidence needed to
sustain an application for both interim and final relief is not readily available and will not
become available through the usual processes of discovery. In such a case, the plaintiff would be
unlikely to obtain an interim injunction because he will not have the necessary evidence.
An Anton Piller order is a Court order which provides for the right to search premises and search
evidence without prior warning. This is used to prevent the destruction of incriminating evidence
particularly in cases of the alleged trademark, copyright, or patent infringements. Recognizing
and realizing the capability of an infringer to readily destroy the pieces of evidence of
infringement and thereby defeat the ends of justice, the Court of law has created various
remedies to offset the same. The Anton Piller order is one such remedy envisaged by the judicial
system to help strengthen the position of an injured party by enabling him to secure pieces of
evidence of infringement from a particular competitor or pirate.
In the case of Anton Piller K.G. v. Manufacturing Process Limited, the Court of Appeal held
that in most exceptional circumstances, where the plaintiff had a very strong prima facie case,
actual or potential, damage to them was very serious and there was clear evidence that
defendants possessed vital material which they might destroy or dispose of to defeat the ends of
justice before any application inter parties could be made the Court has inherent jurisdiction to
order the defendants to permit the plaintiff's representatives to enter the defendant's premises to
inspect and remove such material; and that in the very exceptional circumstances the Court is
justified in making an order sought on the plaintiff's ex parte application. Thus, the Anton Piller
order aims at protecting the plaintiff against the activities of an unscrupulous defendant who may
defeat or diminish the plaintiff's chances of success by destroying or removing offending
evidence. Because such an order is essentially unfair to the defendant. Anton Piller orders are
only issued exceptionally and according to the three-step test set out by Ormrod, L.J., in the
Anton Piller case:
1. There is an extremely strong prima facie case against the respondent;
2. The damage, actual or potential, must be very serious for the applicant; and
3. There must be clear evidence that the respondents have in their possession incriminating
documents or things and that there is a real possibility that they may destroy such material before
an inter parties application can be made.
3. Domain name (Unit –III)
A domain name provides an address for computers on the internet. But the internet has
developed from a mere means of communication to a mode of carrying on commercial activity.
With the increase of commercial activity on the internet, a domain name is also used as a
Page 35 of 49 (2021-22)
business identifier. A domain name is easy to remember and use, and is chosen as an instrument
of commercial enterprise not only because it facilitates the ability of consumers to navigate the
internet to find websites they are looking for, but also at the same time, serves to identify and
distinguish the business itself, or its goods or services, and to specify its corresponding online
internet location. As more and more commercial enterprises trade or advertise their presence on
the web, domain names have become more and more valuable and the potential for dispute is
high. Whereas a large number of trademarks containing the same name can comfortably co-exist
because they are associated with different products, belong to business in different jurisdictions,
etc. The distinctive nature of the domain name providing global exclusivity is much sought after.
The fact that many consumers searching for a particular site is likely, in the first place, to try and
guess its domain name has further enhanced this value.
In Cardservice International Inc. v. Mc Gee, it was held that the domain name serves a
function as the trademark and is not a mere address or like finding the number on the internet
and, therefore, it is entitled to equal protection as a trademark. It was further held that a domain
name is more than a mere internet address for it also identifies the internet site to those who
reach it, much like a person's name, identifies a particular person or more relevant to trademark
disputes, a company's name identifies a specific company.
In Rediff Communication Ltd. v. Cyberbooth, both the plaintiffs and the defendants have a
common field of activity. They are operating on the website and providing information of similar
nature. Both the plaintiffs and the defendants offer a facility of sale of books, music cassettes,
and compact discs and flowers. The Bombay High Court held that there can be no doubt that the
two marks/domain names, 'REDIFF' of the plaintiffs and 'RADIFF' of the defendants are almost
similar. When both domain names are considered it is seen that two names being almost similar
there is every possibility of internet users being confused and deceived in believing that both
domain names belong to one common source and connection although two being too different
persons. The internet domain names are of importance and can be a valuable corporate asset. A
domain name is more than an internet address and is entitled to equal protection as a trademark.
With the advancement and progress in the technology, the services rendered in the internet site
have also come to be recognized and accepted and are being given protection to protect such
provider of service from passing off the services rendered by others as his services.
As far as India is concerned, no legislation explicitly refers to dispute resolution in connection

with domain names. Although the operation of the Trade Marks Act, 1999 itself is not extra-
territorial and may not allow for adequate protection of domain names, this does not mean that
domain names are not to be legally protected to the extent possible under the laws relating to
passing off.,
4. Explain salient feature of Trade Mark Domain name (Unit –III)
Page 36 of 49 (2021-22)
The Trade and Merchandise Marks Act, 1958 has served its purpose over the last four decades. It
was felt that a comprehensive review of the existing law is made given developments in trading
and commercial practices, increasing globalization of trade and industry, the need to encourage
investment flows and transfer of technology, need for simplification and harmonization of
trademark management systems and to give effect to important judicial, decisions. To achieve
these purposes the present Bill proposes to incorporate inter alia is the following namely :
( a ) providing for the registration of the trademark for services, in addition to goods;
(b) registration of trademarks which are an imitation of well-known trademarks, not to be

permitted besides enlarging the grounds for refusal of registration mentioned in clauses 9 and 11.
Consequently, the provisions for definite registration of trademarks are proposed to be omitted;
(c) amplification of factors to be considered for defining a well-known mark;
(d) doing away with the system of maintaining the registration of trademarks in Part A
and Part B with different legal rights, and to provide only a single register with the simplified
procedure for registration and with equal rights;
(e) simplifying the procedure for registration of the registered user and enlarging the
scope of permitted use;
(f) providing for the registration of "Collective Marks" owned by associations, etc.;
(g) providing an Appellate Board for speedy disposal of appeals and rectification
applications which at present lie before High Courts;
(h) transferring the final authority relating to registration of certification trademarks to the
Registrar instead of the Central Government;
(i) providing enhanced punishment for the offenses relating to trademarks on par with the
present Copyright Act, 1957, to prevent the sale of spurious goods;
(j) prohibiting the use of someone else's trademarks as part of corporate names, or name
of business concern;
(k) extension of the application of convention country to include countries which are
members of the Group or Union of Countries and Inter-Governmental Organizations;
(l) incorporating other provisions, like amending the definition of "trademarks",

provisions for filing a single application for registration in more than one class increasing the
period of registration and renewal from 7 to 10 years; making trademark offenses cognizable
enlarging the jurisdiction of Courts to bring the law in this respect on par with the copyright law,
amplifying the powers of the Court to grant ex parte injunction on certain cases and other related
amendments to simplify and streamline the trademark law and procedure.
Page 37 of 49 (2021-22)
Unit – IV
Q.1 What do you mean Copyright ? Explain the nature scope, subject matter and Right
available to plaintiff or owner. (Unit –IV)
Ans. Definition of Copyright
Copyright (or author‘s right) is a legal term used to describe the rights that creators have
over their literary and artistic works. Works covered by copyright range from books, music,
paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and
technical drawings.
Statutory definition of copyright
Copyright means the exclusive right to do or authorize to do certain acts in relation to-
(i). Literary, dramatic, musical and artistic works.
(ii). Cinematograph film.
(iii). Sound recording.
Nature of Copy Right
Copyright as a Bundle of Right
The Copyright comprises two main sets of rights- (i) The economic, rights, and (ii) the
moral rights. The economic right is the rights of reproduction, adaptation, translation
distribution, etc. the moral right includes the author‘s right to object to any distortion,
mutilation, or other modification of his word that might be prejudicial to the author‘s
honor or reputation.
Scope or Object of copyright
The object of copyright law is to encourage authors to create original works by rewarding
them with the exclusive right for a specified period to reproduce the works for
publication and selling them to the public.
Page 38 of 49 (2021-22)
Copyright has a special role to play in today‘s world, particularly in the context of
development. During the last five decades when the political map of the world changed
considerably and several states became independent and other states were newly created,
these developing countries have had to cope with the enormous problems of education of
the vast masses of their people. Some countries were facing challenges in respect of
encouraging and fostering intellectual creativity. While satisfying the urgent needs for
promotion of knowledge, in particular knowledge in the field of art, science, and
technology.
Subject matter of copyright
a) Copyright protection subsists, in accordance with this title, in original works of authorship
fixed in any tangible medium of expression, now known or later developed, from which they can
be perceived, reproduced, or otherwise communicated, either directly or with the aid of a
machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery, regardless of
the form in which it is described, explained, illustrated, or embodied in such work.
Compilation
(a) The subject matter of copyright as specified by section 102 includes compilations and
derivative works, but protection for a work employing preexisting material in which copyright
subsists does not extend to any part of the work in which such material has been used unlawfully.
Page 39 of 49 (2021-22)
(b) The copyright in a compilation or derivative work extends only to the material contributed by
the author of such work, as distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting material. The copyright in such work is
independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of,
any copyright protection in the preexisting material.
In Govindan v. Gopak Krishnan, the plaintiff had published an English-Tamil Dictionary

which had been compiled by one K. the defendants has subsequently published another English-
Tamil Dictionary. The plaintiff sued the defendant alleging that the copyright in his work has
been infringed by the defendant.
In Satsang v. Kiran Chandra, the question was whether the works of a religious preacher in his
own hand-writing and the compilations of the discussions and sermons of a religious preacher
are literary work within the meaning of the word ―work‖ under the Copyright Act.
In Omar Ali v, Jnan Ranjan Mitra, the Court observed that if the defendant, who undoubtedly,
is at liberty to draw upon common sources of information saved himself the trouble and labour
requisite for collecting that information by adopting the plaintiff‘s work with colourable
variation, he has been guilty of infringement of plaintiffs copyright even though the plaintiffs
work is based on materials which are common property.
Right to Copyright Owner
Section 17 of the Act does not deal with the creation of copyright or its scope but only
with its ownership. The copyright in that work will usually belong to the employer and
not to the author unless the latter is able to reserve by contract the copyright to himself.
Economic rights
Section 14 of the Act confers on the owner of a copyright,economic rights because the
exploitation of the work may bring monetary benefits to him. The author may exploit the
work himself or assign others to exploit anyone or more of the rights for a valuable
consideration which may be in the form of royalty or a lump sum payment.
Moral Right
All system of copyright protection have as their prime inspiration the cultural value of
ownership. The term moral right is a translation of the French term ―droit moral‖ and
refers not to morals as advocated by the religious right, but rather to the ability of authors
and of their works. An author is said to have the moral right to control her work
Page 40 of 49 (2021-22)
Neighboring rights
Copyright law can be divided into (i) copyright law in the strict of the word, i.e., the
protection of intellectual creativity, and (ii) the law on neighboring rights. The law on
neighboring rights, i.e., rights similar to or related to copyright, traditionally embrace the
protection of three categories of beneficiaries, viz., (i) performing artists (ii) two
categories of producers, vi., (a) producers of phonograms particularly producers of
gramophone records, music cassettes, etc., and (b) broadcasting origination, i.e., those
engaged in telecommunication of sounds and images by means of radio waves for
reception by the public at large.
Broadcasting Reproduction Right
Section 37 of the Copyright Act, 1957 provides that every broadcasting organization will
have a special right known as Broadcasting Reproduction Right, in respect of its
broadcasts.
Performer’s Right
Section 38 of the act deals with the performer‘s rights. Where any performer appears or
engages in any performance, he will have a special right known as the ―Performer‘s
Right‖ in relation to such performance. The act provides an inclusive definition of the
term Performer, ―Performer‖ includes an actor, singer, musician, dancer, acrobat, juggler,
a person delivering a lecture or any person who makes a performance.
Exclusive rights of performance
(a) to make a sound recording or a visual recording of the performance, including-
(i)reproduction of it in any material from including the storing of it in any medium by

electronic or any other means.
(ii) issuance of copies of it to the public not being copies already in circulation/
(iii) communication of it to the public.
(b) to broadcast or communicate the performance to the public except where the performance is
already broadcast.
Q.2 When copyright is infringement. ? what remedies are available to the plaintiff in
case of the violator of copyright.? (Unit –IV)
Page 41 of 49 (2021-22)
Ans. Infringement of copyright

Infringement of a copyright is a trespass on a private domain owned and occupied by the
owner of the copyright and therefore protected by law and infringement of copyright or piracy,
which is a synonymous term in this connection, consists in doing by any person, without the
consent of the owner of the copyright, of anything the sole right to do which is conferred by
the statute on the owner of the copyright.
Infringement of literal, dramatic and musical works

Section 14 of the Act deals with the exclusive right of the owner of the copyright to do or
authorities the doing of certain acts in respect of a work or any substantial part thereof.
Infringement of copyright in the work under section 51 of the Act:
(i) to reproduce the work in any material from including the storing of it in any medium by
electronic means.
(ii) to issue copies of the work to the public not being copies already in circulation.
(iii) to perform the work in public or communicate it to the public.
(iv) to make any cinema graph form or sound recording in respect of the work.
(v) to make any translation of the work.
(vi) to make any adaptation of the work.
(vii) to do in relation to a translation or an adaptation of the work any of the acts specified in
relation to the work in sub-clauses (i) and (iv).
(viii) to make for a sale or hire, or sells or lets for hire, or by way of trade displays or offers for
sale or hire.
(ix) to distribute either for the purpose of trade or to such extent as to affect prejudicially the
owner of the copyright.
Software piracy
Software is a general term used to describe a collection of computer programas,
procedures and documentation the perform some tasks on an operating system. Software is
defined as a set of instructions which when incorporated in a machine readable from or capable
of causing a computer to perform a particular task. To put it simply, it is a series of commands
which can be understood by the machine.
A study on copyright piracy in India reveals that software piracy takes place in many forms,
namely:
1. Office Copyright.
Page 42 of 49 (2021-22)
2. Network Piracy.
3. Internet Piracy.
4. Resellers.
5. Hardware.
6. Counterfeiting.
The Madras High Court in the Daily Calendar Supplying Bureau Sivakasi vs. The United
Concern, observed as follows:
What is essential is to see whether there is a reproduction of a substantial part of the
picture. There can be no test to decide what a substantial part of a picture is. One useful test,
which has been followed in several decisions of the court is one laid down by lord Herschel,
L.C. in Hanfstanengl vs. Bains and Company it depends really, on the effect produced upon
the mind by a study of the picture and do that which is alleged to e a copy of it, or at least of its
design.
REMEDIES FOR THE INFRINGEMENT.
Civil Remedies.
Sections 54 to 62 lay down the provision of remedy in the form of civil nature. These remedies
include injunction, damages and accounts, delivery of infringing copies and damages for
conversion.
Criminal Remedies.
Sections 63 to 66 provide for the criminal remedies, which include imprisonment of the
accused or imposition of fine or both, seizure of infringing copies and delivery of infringing
copies to the original owner.
Knowing use of infringing copy of computer program
Section 63-B of the Act provides that any person who knowingly makes use on a
computer of an infringing copy of a computer program shall be punishable with imprisonment
for a term which shall not be less than seven days but which may extend to three years and with
fine which shall not be less than fifty thousand rupees but which may extend to two Lakh rupees.
Possession of plates for purpose of making infringing copies
Page 43 of 49 (2021-22)
Any person who knowingly makes or has in his possession, any plate for the purpose
shall be punishable with imprisonment which may extend to two years and shall also be liable to
fine.
Penalty for making false statements
Section 68 of the Act provides that any person who with a view to deceiving any
authority or officer in the execution of the provisions of this Act, or with a view to procuring or
influencing the doing or commission of anything in relation to this Act or any matter thereunder,
makes a false statement or representation knowing the same to be false, shall be punishable with
imprisonment which may extend to one year or with fine, or with both.
Penalty of contravention of section 52-A
Any person who publishes a sound recording or a video film or contravention of the
provisions of Section 52-A shall be punishable with imprisonment which may extend to three
years and shall also be liable to fine.
Administrative Remedies.
Section 53 says that in case of infringement of the copyright, the plaintiff can move to the
Registrar of Copyright to ban the import of infringing copies into India and the delivery of the
infringing copies to the owner of the copyright
Q.3 What do you mean by geographical indication? The procedure of registration of the
G.I. and infringement and what reliefs can be sought for? (Unit –IV)
Ans. A geographical indication (GI) is a sign used on products that have a specific
geographical origin and possess qualities or a reputation that are due to that origin. In order to
function as a GI, a sign must identify a product as originating in a given place. In addition, the
qualities, characteristics or reputation of the product should be essentially due to the place of
origin. Since the qualities depend on the geographical place of production, there is a clear link
between the product and its original place of production.
Characteristic of Geographical Indications
1. Geographical indications identify the specific geographical origin of a product and the
associated qualities, reputation, or another characteristic. They usually consist of the
name of the place of origin.
2. Agricultural and foodstuffs sometimes have qualities that derive from their place of
production and local environmental factors.
Page 44 of 49 (2021-22)
3. Geographical indications are understood by the consumer to denote the origin and
quality of the product.
4. Geographical indication acquired a valuable reputation which if not adequately

protected may be misrepresented by dishonest commercial
Procedure for Registration
Application for registration
An application for the registration of geographical indication may be made in writing to

the Registrar in such from and in such manner and accompanied by such fees may be prescribed
for the registration of geographical indication.
Contents of application
An application for registration of geographical indication must contain:
(a) the class of goods to which the geographical indication shall apply;
(b) the geographical map of the territory of the country or region or locality in the country
in which the goods originate or are being manufactured.
(c) the particulars regarding the appearance of the geographical indication as to whether it
is comprised of the words or figurative elements or both;
(d) a statement containing such particulars of the producers of the concerned goods, if
any proposed to be initially registered with the registration of the geographical indication
as may be prescribed; and
(e) such other particulars as may be prescribed.
Withdrawal of acceptance
Where, after the acceptance of an application for registration of a geographical indication

but before its registration, the Registrar is satisfied:
(a) that the application has been accepted in error; or
(b) that in the circumstances of the case the geographical indication should not be
registered or should be registered subject to conditions or limitations or to conditions
additional to or different from the conditions or limitations subject to which the
application has been accepted.
Page 45 of 49 (2021-22)
The Registrar may, after hearing the applicant if he so desire, withdrawal the acceptance and
proceed as if the application had not been accepted.
Advertisement of application
When the application for registration of a geographical indication has been accepted
whether absolutely or subject to condition or limitation, the registrar advertises the application in
such manner as may be prescribed.
Opposition to Registration
Any person may within three months from the date of advertisement or re-advertisement
of an application for registration give notice in writing in the prescribed manner to the Registrar,
of opposition to the registration.
The Registrar serves a copy of the notice of opposition on the applicant for registration and
within two months from the receipt by the applicant of such copy of the notice of opposition, the
applicant shall be sent to the Registrar a counter statement of the grounds on which he relies for
his application and if he does not do so he shall be deemed to have abandoned his application.
The Registrar, after hearing the parties and considering the evidence decides whether and subject
to what condition or limitation , if any, the registration is to be permitted and may take into
account a ground of objection whether relied upon by the opponent or not.
Registration
When an application for registration of a geographical indication has been accepted and
either the application has not been opposed and the time for notice of opposition has expired or
the application has been opposed and the opposition has been decided in favor the applicant the
Registrar registers the paid geographical indications and the authorized users, if any, mentioned
in the application. The date of the making of the paid application shall be deemed to be the date
of registration.
Page 46 of 49 (2021-22)
Q.4 Explain the salient features of Biological diversity Act 2002. (Unit –IV)
Ans. Biodiversity encompasses the variety of all life on earth. India is one of the 17-mega
diverse countries of the world. With only 2.5% of the land area, India already accounts
for 7.8% of the global recorded species. India is also rich in traditional and indigenous
knowledge, both coded and informal.
India is a Party to the Convention on Biological Diversity (CBD) (1992). Recognizing the
sovereign rights of States to use their own biological resources, the Convention expects
the Parties to facilitate access to genetic resources by other Parties subject to national
legislation and on mutually agreed upon terms (Article 3 and 15 of CBD). Article 8(j) of
the Convention on Biological Diversity recognizes contributions of local and indigenous
communities to the conservation and sustainable utilization of biological resources
through traditional knowledge, practices and innovations and provides for equitable
sharing of benefits with such people arising from the utilization of their knowledge,
practices and innovations
Salient Features of the Act

1) To regulate access to biological resources of the country with the purpose
2) To conserve and sustainably use biological diversity.
3) To respect and protect knowledge of local communities and traditional knowledge

related to biodiversity.
4) To secure sharing of benefits with local people as conservers of biological resources

and holders of knowledge and information relating to the use of biological resources.
5) Conversation and development of areas of importance from the standpoint of

biological diversity by declaring them as biological diversity heritage sites.
6) Protection and rehabilitation of threatened species; and
7) Involvement of institutions of State Government in broad schemes of the

implementation of the Biological Diversity Act 2002 through constitution of committees.
The basic problem of losses to biodiversity includes:
 The unsustainably high rate of human population growth and consumption of

natural resources.
Page 47 of 49 (2021-22)
 The steadily narrowing selection of traded products from agriculture, forestry and
fisheries.
 Economic system that fail to value economic resources.
 Inequality in ownership, management and flow of benefits from both the use and
conversation of biodiversity.
 Deficiency in knowledge and application.
 Legal and institutional systems that promote unsustainable exploitation
Important Definition
"biological diversity" means the variability among living organisms from all sources and
the ecological complexes of which they are part, and includes diversity within species or
between species and of eco-systems;
"biological resources" means plants, animals and micro-organisms or parts thereof, their
genetic material and by-products (excluding value added products) with actual or
potential use or value, but does not include human genetic material;
"bio-survey and bio-utilization" means survey or collection of species, subspecies, genes,
components, and extracts of a biological resource for any purpose and includes characterization,
incentivization, and bioassay;
Page 48 of 49 (2021-22)
Q.5 Short notes
1. Explain the salient features of geographical indications (Unit –IV)
(a) definitions of several important terms like "geographical indication", "goods",

"producers", "package", "registered proprietor", "authorized user", etc.;
(b) provision for the establishment of a Geographical Indications Registry;
(c) provisions for the maintenance of a Register of Geographical Indications in two

parts—Part A and Part B and use of computers, etc., for maintenance of such registers. While
Part A will contain all registered geographical indications, Part B will contain particulars of
registered authorized users;
(d) registration of geographical indications of goods in specific classes;
(e) prohibition of registration of certain geographical indications;
(f) provisions for framing of rules by Central Government for filing of application, its
contents and matters relating to substantive examination of geographical indication an
applications;
(g) compulsory advertisement of all accepted geographical indication applications and for
inviting objections;
(h) registration of authorized users of registered geographical indications and providing

infringement action either by a registered proprietor or an authorized user;
(i) provisions for the renewal, rectification and restoration of geographical indications
and authorized user;
(j) provisions for higher level of protection for notified goods;
(k) prohibition of assignment, etc., of a geographical indication as it is a pubic property;
(1) prohibition of registration of geographical indication as a trade mark;
(m) appeal against Registrar's decisions would lie to the Intellectual Property Appellate
Board established under the Trade Marks legislation;
(n) provision relating to offences and penalties;
(o) provision detailing the effects of registration and the rights conferred by registration;
(p) provisions for reciprocity, powers of the Registrar, maintenance index, protection of
homonymous geographical indications, etc.
Page 49 of 49 (2021-22)

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(B.A.LL.B. IX/B.B.A.LL.B. IX/LL.B.

V) Semester – Intellectual Property Rights

Intellectual Property Rights

1- Introduction: Basic concept of IPR ;Nature, Commercial Exploitation IP; Enforcement

1- Right and Obligation of the Patens and Transfer of Patent Rights

1- Remedies against Infringement

1- Introduction : Scope, nature subject matter of copyright

Ans. Intellectual Property

Nature of Intellectual Property Right

The concept of Intellectual Property Right

International Convention- There are following convention----

The Paris Convention for the Protection of Industrial Property

Principal Features of the Paris Convention

The provisions of the Paris Convention contain following four feature-

4. Administrative framework and final clause.

The patent cooperation treaty (pct)

World Intellectual Property Organization (WIPO)

World Trade Organization (WTO)

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement)

Patentable Subject Matter

The invention must be a patentable subject-matter. Patentable subject-matter includes any

2. Inventive step (Non-obviousness)

3. Usefulness (Industrially applicable)

2. Inventive step (Non-obviousness)

3. Usefulness (Industrially applicable)

Inventions not Patentable

1. An invention which is frivolous or which claims anything obviously contrary to well-

2. An invention the primary or intended use or commercial exploitation of which could be

3. The mere discovery of a scientific principle or the formulation of an abstract theory or

5. The mere arrangement or re-arrangement or duplication of known devices each functioning

6. A method of agriculture or horticulture.

9. A mathematical or business method or a computer programme per se or algorithms.

12. A presentation of information.

13. Topography of integrated circuits.

14. An invention which, in effect, is traditional knowledge or which is an aggregation or

15. An invention relating to atomic energy.

Q.3 Short notes

1. Enforcement of Intellectual Property Rights (Unit –I)

Remedies available against infringement of copyright are :

1. Civil remedies which include injunction, damages or account of profits, delivery up of

2. Criminal remedies include imprisonment, fines, or .both, seizure of infringing copies.

3. Administrative remedies consist of moving the Registrar of Copyrights to ban the

(1) An injunction restraining further use of the infringing mark,

(2) Damages or on account of profits, and

Ans. Meaning of the term “Patent”

Salient features of Patent

1. The patent must be in respect of an invention and not a discovery.

2. In respect of one single invention there must be one single patent.

3. A patent may be in respect of a substance or in respect of a process.

6. It is the claims and claims alone which constitute the patent.

Origin of the Patent

Objective of Patent Law

The Nature of Patent Rights

1. Right of exploit patent

2. Right to transfer the patent

3. Right to surrender the patent

4. Right to sue for infringement of the patent

Exceptions and Limitations

1. Use of invention for purpose of Government.

3. Revocation for non-working of patents.

4. Inventions for defence purpose.

5. Limitation on restored patents.

What constitute Patent Infringement

1. The colorable imitation of an invention.