TRADEMARK LAW TREATY

What is trademark?
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify for consumers that the products or services on or with which the trademark appears originate from a unique source, designated for a specific market, and to distinguish its products or services from those of other entities.

Symbols of trademark
A trademark may be designated by the following symbols: (the "trademark symbol", which is the letters "TM", for an unregistered trade mark, a mark used to promote or brand goods) (which is the letters "SM" in superscript, for an unregistered service mark, a mark used to promote or brand services) (the letter "R" surrounded by a circle, for a registered trademark)

Indication of trademarks
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound.

Right of trademark owner

The owner of a trademark may initiate legal proceedings for trademark infringement to prevent unauthorized use of that trademark. Most countries require formal registration of a trademark as a precondition for pursuing this type of action. A few countries, including the United States and Canada, also recognize common law trademark rights, which means action can be taken to protect a trademark that is in use but not registered. Generally, common law trademarks do not offer the holder as much legal protection as registered trademarks

Capable of distinguishing of goods and service The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the wellknown characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

TLT
The Trademark Law Treaty (TLT), adopted on October 27, 1994, entered into force on August 1, 1996. Thirty-three countries, including the United States, are party to the TLT as of July 1, 2005. The TLT was enacted to simplify procedures in the application and registration process and to harmonize trademark procedures in different countries. The TLT harmonizes procedures of national trademark officesby establishing themaximum requirements a contracting party can impose.

Aim of trademark law treaty

The aim of the Trademark Law Treaty (TLT) is to approximate and streamline national and regional trademark registration procedures. This is achieved through the simplification and harmonization of certain features of those procedures, thus making trademark applications and the administration of trademark registrations in multiple jurisdictions less complex and more predictable.

Equal status to SM with trademarks

The TLT gives service marks the distinctive identifiers of businesses that offer a service, as opposed to goods "equal" status with trademarks. Previously, many foreign countries treated trademarks and service marks differently. The TLT requires member nations to register service marks and treat them as they would trademarks.

Benefits and advantages

From the trademark owner's perspective, the TLT saves time and money in the preparation and filing of documents for the application. It streamlines the process for post-registration renewals, recording assignments, changes of name and address, and powers of attorney. Member countries to the TLT are now required to permit the use of multi-class applications, enabling trademark owners to file a single application covering multiple classes of goods and services.

Benefits and advantages

Another significant feature of the TLT that benefits trademark owners is its prohibition of requirements by national offices for authentication or certification of documents as well as signatures on trademark applications and correspondence. Many countries had required that any signatures submitted in support of registration of a mark be notarized or otherwise legalized in accordance with the laws of that nation. Under the TLT, it is no longer necessary in most instances to go through these procedures.

Benefits and advantages

This feature enables trademark owners to complete and file trademark documents more quickly, at less cost. An additional advantage of the TLT is the harmonization of the initial and renewal terms of trademark registration among signatory countries: The TLT provides for an initial 10year term, with 10-year renewals.

Benefits and advantages

Other key features of the TLT include the introduction of an intent-to-use application system (with proof of use prior to registration); streamlined renewal procedures; minimization of the elements to obtain an application filing date; and simplified procedures for recording changes in name and ownership of trademark applications and registrations.

 Overall, the TLT is intended to facilitate international trade: It is of particular importance to individuals and small businesses looking for markets in other countries. Currently, WIPO's Standing Committee on Trademarks, Industrial Designs, and Geographical Indications (SCT) is conducting negotiations on proposed revisions to the TLT.

Berne Convention for the Protection of Literary and Artistic Works

What is the Bern Convention?

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne,Switzerland, in 1886.

Right of owner under copyright

An author from any country that is a signatory of the convention is awarded the same rights in all other countries that are signatories to the Convention as they allow their own nationals, as well as any rights granted by the Convention. The Convention also sets out a minimum duration that copyright will apply in various types of work.

Right of owner under copyright

For the period of copyright, the copyright owner has the following exclusive rights. None of the actions below can be carried out without permission:
The right to authorise translations of the work. The exclusive right to reproduce the work, though some provisions are made under national laws which typically allow limited private and educational use without infringement.

Right of owner under copyright

The right to authorise public performance or broadcast, and the communication of broadcasts and public performances. The right to authorise arrangements or other types of adaptation to the work. Recitation of the work, (or of a translation of the work). The exclusive right to adapt or alter the work.

Right of owner under copyright

The author also has the following moral rights:
The author has the right to claim authorship The right to object to any treatment of the work which would be prejudicial to his honour or reputation.

Duration
Duration of rightsAlthough the Berne Convention states a copyright duration, this is in fact the minimum period of protection that must be provided by signatory countries. The national laws of individual countries may (and often do) provide a longer copyright duration. For further details please see our fact sheet P10: Copyright Duration.

 The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognizes the copyright of its own nationals. For example, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

 In addition to establishing a system of equal treatment that internationalised copyright amongst signatories, the agreement also required member states to provide strong minimum standards for copyright law. Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration (note however that when the United States joined the Convention in 1988, it continued to make statutory damages and attorney's fees only available for registered works).

APPLICABILITY
Under Article 3, the protection of the Convention applies to nationals and residents of signatory countries, and to works first published or simultaneously published (under Article 3(4), "simultaneously" is defined as "within 30 days) in a signatory country. Under Article 4, it also applies to cinematic works by persons who have their headquarters or habitual residence in a signatory country, and to architectural works situated in a signatory country

COUNTRY OF ORIGIN
The Convention relies on the concept of "country of origin". Often determining the country of origin is straightforward: when a work is published in a signatory country and nowhere else, this is the country of origin. However, under Article 5(4), when a work is published simultaneously in several signatory countries (under Article 3(4), "simultaneously" is defined as "within 30 days , the country with the shortest term of protection is defined as the country of origin.

 For works simultaneously published in a signatory country and one or more non-signatory countries, the signatory country is the country of origin. For unpublished works or works first published in a non-signatory country (without publication within 30 days in a signatory country), the author's nationality usually provides the country of origin, if a national of a signatory country. (There are exceptions for cinematic and architectural works.)[3]

Copyright term
The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms,[5] as the European Union did with the 1993 Directive on harmonising the term of copyright protection. For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn't been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.

 If the author is unknown, because for example the author was deliberately anonymous or worked under a pseudonym, the Convention provides for a term of 50 years after publication ("after the work has been lawfully made available to the public"). However if the identity of the author becomes known, the copyright term for known authors (50 years after death) applies.[5]

 Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, Article 7(8) states that "unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work",[5] i.e., an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term. This is commonly known as "the rule of the shorter term". Not all countries have accepted this rule.

Fair use
The Berne Convention authorizes countries to allow "fair" uses of copyrighted works in other publications or broadcasts.[6][7] The Agreed Statement of the parties to the WIPO Copyright Treaty of 1996 states that: It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.[8] This language may mean that Internet service providers are not liable for the infringing communications of their users.[8]

Indias Copyright Act 1957

The Copyright Act, 1957(Act No. 14 of 1957) governs the laws & applicable rules related to the subject of copyrights in India. Copyright Law in the country was governed by the Copyright Act of 1914, was essentially the extension of the British Copyright Act, 1911 to India,and borrowed extensively from the new Copyright Act of the United Kingdom of 1956. All copyright related laws are governed by the Copyright Act, 1957

 The Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of theBerne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995.

Copyright
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Descriptions of work
Artistic work - An artistic work means
A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; A work of architecture; and Any other work of artistic craftsmanship.

 Musical work
"Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy copyright protection.

 Sound recording
"Sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.

 Cinematograph film
"Cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.

 Government work - "Government work" means a work which is made or published by or under the direction or control of
The government or any department of the government Any legislature in India, and Any court, tribunal or other judicial authority in India.

An author
In the case of a literary or dramatic work the author, i.e., the person who creates the work In the case of a musical work, the composer. In the case of a cinematograph film, the producer. In the case of a sound recording, the producer. In the case of a photograph, the photographer. In the case of a computer generated work, the person who causes the work to be created.

Duration of copyright
Literary dramatic, musical and artistic works (other than a photograph) sixty years from the beginning of the calendar year next following the year in which the author dies.

Anonymous and pseudonymous works Posthumous work Photographs Cinematograph films Sound records Government work Public undertakings work International organisations work sixty years from the beginning of the calendar year next following the year in which the work is first published.

Criminal liability
Copyright infringement is punishable under 63 of the Copyright Act: Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act, shall be punishable with imprisonment for a term which shall not be less than six months 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: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation.- Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.[3]

 Copyright infringement is punishable under 63 of the Copyright Act: Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act, shall be punishable with imprisonment for a term which shall not be less than six months 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: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation.- Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.[3]

Fair dealing
A fair dealing with a literary, dramatic, musical or artistic work (not being a computer programme) for the purposes of for the purpose of research or private study, for criticism or review, for reporting current events, in connection with judicial proceeding, performance by an amateur club or society if the performance is given to a non-paying audience, and . the making of sound recordings of literary, dramatic or musical works under certain conditions

Government works
Although Government works are copyrighted, the reproduction or publication of following works not copy protected. Act of a Legislature. Report of a committee, commission, council, board or other like body appointed by the Government. Judgement or order of a court, tribunal or other judicial authority

Broadcast reproduction right

The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.

Performers right
The performer's right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.