UNIT -2

COPYRIGHTS
INTRODUCTION TO COPYRIGHT:
Copyright as to mean the exclusive right to do or authorise the doing of the following acts in
respect of a work or any substantial part thereof, namely In the case of literary, dramatic or
musical work (except computer programme):
(i) reproducing the work in any material form which includes storing of it in any medium by
electronic means;
(ii) issuing copies of the work to the public which are not already in circulation;
(iii) performing the work in public or communicating it to the public;
(iv) making any cinematograph film or sound recording in respect of the work;
making any translation or adaptation of the work. Further any of the above mentioned acts in
relation to work can be done in the case of translation or adaptation of the work.
In the case of a computer programme:
(i) to do any of the acts specified in respect of a literary, dramatic or musical work; and
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of
the
computer programme. However, such commercial rental does not apply in respect of
computer
programmes where the programme itself is not the essential object of the rental.
In the case of an artistic work:
(i) reproducing the work in any material form including depiction in three dimensions of a
two
dimensional work or in two dimensions of a three dimensional work;
(ii) communicating the work to the public;
(iii) issuing copies of work to the public which are not already in existence;
(iv) including work in any cinematograph film;
making adaptation of the work, and to do any of the above acts in relation to an adaptation of
the work.
In the case of cinematograph film and sound recording:
(i) making a copy of the film including a photograph of any image or making any other sound
recordingembodying it;
(ii) selling or giving on hire or offer for sale or hire any copy of the film/sound recording
even if such copy has been sold or given on hire on earlier occasions; and

(iii) communicating the film/sound recording to the public.

In the case of a sound recording:
To make any other sound recording embodying it
To sell or give on hire, or offer for sale or hire, any copy of the sound recording
To communicate the sound recording to the public.
PRINCIPLES OF COPYRIGHTS
The principles it identifies are as follows:
1. Creators and producers of creative works should receive meaningful protection,
recognition and compensation for their contributions to economic and cultural development.
2. Copyright law should reflect an appropriate balance between the rights of creators and
copyright owners and the interests of consumers and other users of works.
3. Copyright law should be regularly reviewed and updated as appropriate to respond to new
technologies and uses.
4. Copyright systems should enable rights to be meaningfully, practically, cost-effectively,
and proportionally enforced.
5. A wide range of means should be available for creative works to reach the public, as
enabled by Internet and other technologiesmaximizing choice for both rights holders and
users. It is desirable to have as much quality content as possible available in as many formats
as possible.
6. Licensing should be streamlined in a content-appropriate manner and simplified to be as
easy and efficient as possible, including for different types of content and across national
boundaries.
7. The public should be educated about the purpose, scope and nature of copyright
protections, including exceptions, and the reasons for proposed changes or government
action.
SUBJECT MATTER OF COPYRIGHT:

Copy right protects the literary, musical, graphic or other artistic form in which an author
expresses intellectual concepts.
Author: An author is the creator of copyrightable expression, whether literary, musical or
otherwise; or under certain circumstances, the party that commissions a work or pays for the
work under an employment agreement.
Work of authorship: Creation of intellectual or artistic effort fixed or embodied in a
perceptible form and meeting the statutory standards of copyright protection.
Originality: Originality means that a work is original to the author. It requires only a modest
degree of intellectual labor. For ex: two photographers take pictures of house. One uses
equipment and creates magnificently composed picture, while the other uses a simple camera
with a fixed lens. Each photograph would be original to its author. In fact even if the photos
were identical, each would be copyrightable, assuming neither photographer copied the other.
Therefore, despite aesthetic issues, there would be sufficient originality to satisfy copyright
for both photographers.
Fixation: a work is fixed when it is embodied in a tangible medium of expression by or uder
the authority of the author, which is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more than transitory
duration; in the case of sounds images, or both that are being transmitted, a work is fixed if a
fixation of work is being made simultaneously with its transmission.
Eight categories of works of authorship:
Literary works: Works, other than audiovisual works, expressed in words, numbers, or other
verbal or numerical symbols or indicia, regardless of the nature of the material objects, such
as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards in which they
are embodied.
Dramatic works: It is usually a play prepared for stage, cinema, radio or television.
Narrative presentations (and any accompanying music) that generally use dialogue and stage
directions as the basis for a theatrical exhibition.
Choreography: it is the composition and arrangement of dance moments.
Pantomime: A form of theater expressed by gestures but without words.
Pictoral, graphic and sculptural works: Two dimensional and three dimensional works of
fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts,
diagrams, models, and technical drawings, including architectural plans. Such works include
works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian
aspects are concerned. The design of a useful article is considered a pictorial, graphic, or

sculptural work only if, and only to the extent that, such design incorporates pictorial,
graphic, or sculptural features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article.
Useful article: An article having an intrinsic utilitarian function that is not merely to portray
the appearance of the article or to convey information. An article that is normally a part of
useful article is considered a useful article.
Audiovisual works: Works that consists of a series of related images which are intrinsically
intended to be shown by the use of machines or devices, such as projectors, viewers or
electronic equipment, together with accompanying sounds, if any, regardless of the nature of
the material objects, such as films or tapes, in which the works are embodied.
Motion pictures: Audio visual works consisting of a series of related images which, when
shown in succession, impart an impression of motion, together with accompanying sounds if
any.
Architectural work: The design of a building as embodied in any tangible medium of
expression, including a building, architectural plans, or drawings; it includes the overall form
as well as the arrangement and composition of spaces and elements in the design, but does
not include individual standard features.
Musical work: A composition incorporating melody, rhythm, and harmonic elements (and
accompanying lyrics, if any).
Sound recordings: Works that result from the fixation of a series of musical, spoken, or other
sounds, but not including the sounds accompanying a motion picture or other audiovisual
work, regardless of the nature of the material objects, such as disks, tapes, or other
phonorecords, in which they are embodied.
RIGHTS AFFORDED BY COPYRIGHT LAW:
The authors are afforded with bundle of rights which includes:
Right to reproduce the work
Right to distribute the work to the public
The first sale doctrine: Limitations on the distributive right
Right to adapt the work: Right to prepare derivative works
Right of public performance
Right to display the work publicly
Works of visual art: Moral rights
Right to reproduce the work

Under this right, no one other than the copyright owner may make any reproductions or
copies of the work. Examples of unauthorized acts which are prohibited under this right
include photocopying a book, copying a computer software program, using a cartoon
character on a t-shirt, and incorporating a portion of another's song into a new song.
Right to distribute the work to the public
The distribution right grants to the copyright holder the exclusive right to make a work
available to the public by sale, rental, lease, or lending.
This right allows the copyright holder to prevent the distribution of unauthorized copies of a
work. In addition, the right allows the copyright holder to control the first distribution of a
particular authorized copy.
However, the distribution right is limited by the "first sale doctrine", which states that after
the first sale or distribution of a copy, the copyright holder can no longer control what
happens to that copy.
Thus, after a book has been purchased at a book store (the first sale of a copy), the copyright
holder has no say over how that copy is further distributed. Thus, the book could be rented or
resold without the permission of the copyright holder.
The first sale doctrine: Limitations on the distributive right
Once the first sale of a copy or phonorecord has occurred, the authors rights as to that copy
are limited. This limitation is commonly is known as the first sale doctrine. Right of the
owner of a lawfully made copy or phonorecord to sell or otherwise dispose of possession of
that copy or phonorecord, without the authority of the copyright owner. The doctrine includes
the right of the owner of a lawfully mae copy to display that copy publicly, either directly or
by the projection of no more than one image at a 6time, to viewers present at the place where
the copy is located, without authorization from the copyright owner.
Right to adapt the work: Right to prepare derivative works
The right to make a derivative work overlaps somewhat with the reproduction right.
According to the Copyright Act, a derivative work is a work based upon one or more
preexisting works, such as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment, condensation, or any
other form in which a work may be recast, transformed, or adapted.
A derivative work usually involves a type of transformation, such as the transformation of a
novel into a motion picture. In the computer industry, a second version of a software program
is generally considered a derivative work based upon the earlier version.
Right of public performance

The public performance right allows the copyright holder to control the public performance
of certain copyrighted works. The scope of the performance right is limited to the following
types of works:
Literary works, musical works, dramatic works, choreographic works, pantomimes, motion
pictures, and audio visual works.
Under the public performance right, a copyright holder is allowed to control when the work is
performed "publicly." A performance is considered "public" when the work is performed in a
"place open to the public or at a place where a substantial number of persons outside of a
normal circle of a family and its social acquaintances are gathered."
The public performance right is generally held to cover computer software, since software is
considered a literary work under the Copyright Act.
In addition, many software programs fall under the definition of an audio visual work.
The application of the public performance right to software has not be fully developed,
except that it is clear that a publicly available video game is controlled by this right.
Right to display the work publicly
All copyrighted works other than sound recordings and works of architecture, the copyright
owner has the exclusive right to display the work publicly. To show a copy of a work, either
directly or by means of a film, slide, television image, or any other device or process where
the public is gathered or the work is transmitted or otherwise communicated to the public; in
the case of a motion picture or other audio visual work, the non sequential showing of
individual images.
Works of visual art: Moral rights
Moral rights are rights that protect the professional honor and reputation of an artist by
guaranteeing the right to claim or disclaim authorship of a work and the right to prevent, in
certain cases, distortion, mutilation, or other modification of the work.
Under copyright act either a painting, drawing, print, or sculpture, existing in a single copy, in
a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively
numbered by the autyhor, or in the case of a sculpture, in multiple cast, carved or fabricated
sculptures of 200 or fewer that are consecutively numbered by the author and bear the
signature or other identifying mark of the author; or a still photographic image produced for
exhibition purposes only, existing in a signed by the author, or in a limited edition of 200
copies or fewer that are signed and consecutively numbered by the author.
RIGHTS OF PERFORMERS:
Performer

As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person
who makes a performance.
Performance:
"Performance" in relation to performers right, means any visual or acoustic presentation
made live by one or more performers.
Performers rights subsist for 25 years.
Broadcast Reproduction Right
Section 37 entitles every broadcasting organisation to have a special right to be known as
"broadcast reproduction right" in respect of its broadcasts for twenty-five years from the
beginning of the calendar year next following the year in which the broadcast is made.
As per sub Section (3) of Section 37 during the continuance of a broadcast reproduction right
in relation to any broadcast, any person who, without the licence of the owner of the right
does any of the following acts of the broadcast or any substantial part thereof,(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on payment of any charges; or
(c) makes any sound recording or visual recording of the broadcast; or
(d) makes any reproduction of such sound recording or visual recording where such initial
recording was done without licence or, where it was licensed, for any purpose not envisaged
by such licence; or
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound
recording or visual recording referred to in clause (c) or clause (d) and subject to the
provisions of Section 39 deemed to have infringed broadcast reproduction right..
Performers Right
Section 38 provides that where any performer appears or engages in any performance, he
shall have a special right to be known as the "performer's right" in relation to such
performance. The performer's right subsist until fifty years from the beginning of the calendar
year next following the year in which the performance is made.
Exclusive Right of Performer
As per Section 38A without prejudice to the rights conferred on authors, the performers right
which is an exclusive right subject to the provisions of the Act to do or authorise for doing
any of the following acts in respect of the performance or any substantial part thereof,
namely:
(a) to make a sound recording or a visual recording of the performance, including

(i) reproduction of it in any material form 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;
(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any
copy of the recording;
(b) to broadcast or communicate the performance to the public except where the performance
is already broadcast.
It may be noted that once a performer has, by written agreement, consented to the
incorporation of his performance in a cinematograph film he shall not, in the absence of any
contract to the contrary, object to the enjoyment by the producer of the film of the
performers right in the same film. However, the performer shall be entitled for royalties in
case of making of the performances for commercial use.
Rights of a performer:
A performer has the following rights in his/her performance:

Right to make a sound recording or visual recording of the performance;

Right to reproduce the sound recording or visual recording of the performance;

Right to broadcast the performance;

Right to communicate the performance to the public otherwise than by broadcast.

Moral Right of Performer

Section 38B of Act provides that the performer of a performance shall, independently of his
right after assignment, either wholly or partially of his right, have the right to claim to be
identified as the performer of his performance except where omission is dictated by the
manner of the use of the performance; and to restrain or claim damages in respect of any
distortion, mutilation or other modification of his performance that would be prejudicial to
his reputation.
It may be noted that mere removal of any portion of a performance for the purpose of editing,
or to fit the recording within a limited duration, or any other modification required for purely
technical reasons shall not be deemed to be prejudicial to the performers reputation.
COPYRIGHT INFRINGEMENTS
The following are some of the commonly known acts involving infringement of copyright:
i.

Making infringing copies for sale or hire or selling or letting them for hire;

ii.

Permitting any place for the performance of works in public where such performance
constitutes infringement of copyright;

iii.

Distributing infringing copies for the purpose of trade or to such an extent so as to

affect prejudicially the interest of the owner of copyright ;

iv.

Public exhibition of infringing copies by way of trade; and

v.

Importation of infringing copies into India.

If a person permits for profit any place to be used for the communication of a work to the
public, where such communication constitutes an infringement of the copyright in the work,
unless he was not aware and had no reasonable ground for believing that such communication
to the public would be an infringement of copyright, he will be deemed to have committed an
offence under the Copyright Act.
A copyright owner can take legal action against any person who infringes the copyright in the
work. The copyright owner is entitled to remedies by way of injunctions, damages and
accounts.
The District Court concerned has the jurisdiction in civil suits regarding copyright
infringement.
Proof of the authorship of a work:
Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be
that of the author or the publisher appears on copies of the work as published, or, in the case
of an artistic work appeared on the work where it was made, the person whose name so
appears or appeared shall, in any proceeding in respect of copyright in such work, be
presumed, unless the contrary is proved, to be the author or the publisher of the work, as the
case may be.
Rights of owner over infringing copies and equipments used for making infringing
copies:
All infringing copies of any work in which copyright subsists and all plates used or intended
to be used for the production of such infringing copies shall be deemed to be the property of
the owner of the copyright.
Remedies and legal proceedings:
Where any person claiming to be the owner of copyright in any work, by circulars,
advertisements or otherwise, threatens any other person with any legal proceedings or
liability in respect of an alleged infringement of copyright, any person aggrieved thereby may
institute a declaratory suit that the alleged infringement to which the threats related was not in

fact an infringement of any legal rights of the person making such threats and may in any
such suit
a. obtain an injunction against the continuance of such threats; and
b. recover such damages, if any, as he has sustained by reason of such threats.
Any person who knowingly infringes or abets the infringement of the copyright in any work
commits criminal offence under Section 63 of the Copyright Act.
The minimum punishment for infringement of copyright is imprisonment for six months with
the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the
minimum punishment is imprisonment for one year and fine of Rs. one lakh.
Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an
offence in respect of the infringement of copyright in any work has been, is being, or is likely
to be committed, seize without warrant, all copies of the work and all plates used for the
purpose of making infringing copies of the work, wherever found, and all copies and plates
so seized shall, as soon as practicable be produced before a magistrate.
The Court may order delivery to the owner of the copyright all such copies or plates.
Every person who at the time the offence was committed was in charge of, and was
responsible to the company for, the conduct of the business of the company, as well as the
company shall be deemed to be guilty of such offence and shall be liable to be proceeded
against.
No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence under the Copyright Act.
A police officer not below the rank of sub inspector can seize without warrant all infringing
copies of the work.
COPYRIGHT OWNERSHIP:
Person or persons holding title to copyright is the owner of copyright. Either the author or
any party to whom the author has licensed or transferred a right under the act is the owner of
copyright. The ownership of copyright enables the owner to transfer, license, sell or grant
rights to another person. Parties may settle the matter or submit it to a court for final
determination regarding copyright disputes.
Registration does not prove ownership:
Registration of copyright by the copyright office does not prove ownership, but registration
within five years of publication does create a presumption of ownership or prima facie proof
of title. The copyright office may under certain circumstances, issue a second registration
without cancelling the first one and let the parties litigate the ownership issue.

Ownership of copy does not establish rights:

Ownership of a material object like a painting is distinct from the ownership of copyright. For
ex: if a person purchases an original handwritten lyric that does not convey the right to
reproduce or distribute copies of lyrics. Similarly if an individual buys a box of discarded
tape recordings by famous performers, she may not authorize copying of the musical works
or sound recordings embodied on those tapes. The purchaser has only acquired ownership of
material object but not acquired ownership of copyright.
Joint and co-ownership:
A work prepared by two or more authors with the intention that their contributions will be
merged into inseparable or interdependent parts of a unitary whole then it is a joint work.
Joint authors are co-owners of copyright. The law states that the touchstone of joint work is
the intention at the time of writing is done, that the parts be absorbed or combined into an
integrated unit.
Determining the value of each Authors contribution:
If there is no agreement regarding the value then the court will presume that each joint author
had an undivided interest in relation to the total number of joint authors.
If the authors enters into agreement then they may divide the revenues from the work in any
manner they choose, regardless of each authors contribution. The authors may also divide
different sources of revenue in different fashions.
A contract in which joint authors specify the rights, obligations, percentage of copyright, and
revenues attributable to each other is called collaboration agreement.
Checklist for determining co-ownership of copyright:
Is this work created by two or more authors?
Has the author of the work transferred copyright ownership jointly to several persons?
Has the author transferred a portion of the copyright interest and retained the remaining
interest?
Has the copyright ownership passed by will or intestate succession to tow or more persons?
Is the work subject to community property laws?
Did the renewal rights in the work vest in tow or more persons?
Co-owners are tenants in common:
A tenancy in common is a legal form of co-ownership of property that grants to each coowner an independent right to use or license the property, subject to the duty of accounting to
the other co-owners for any profits; upon a co-owners death, that co-owners share goes to
his or her beneficiaries or heirs, but not to other co-owners.

All co-owners must consent exclusive license:

An exclusive license is an agreement to restrict the grant of proprietary rights to one person.
Death of co-owner:
Under a tenancy in common, if a co-owner dies, his or her share goes to beneficiaries or
heirs.
Rights and duties of co-owners:
Licensing: Any co-owner may bargain for, or license rights regarding, the copyright, provided
that the other co-owners receive an equitable interest in the results of the bargain or contract.
No co-owner may execute an exclusive license without the permission of the other coowners.
Litigation: Any co-owner may litigate or be sued regarding the copyright. If any co-owner
recovers damages in a lawsuit, that co-owner is only entitled to damages equal to its equitable
interest in the copyright.
Death of co-owner: Upon the death of a co-owner, that share in the copyright will pass to
survivors of the co-owner under a legal will or the principles of intestate succession.
Ownership of copyright in collective works:
A collective work is a form of compilation in which many separate and independent works
are assembled into a collective whole. The person who selects and assembles the works is the
author and copyright owner of the collective work.
Author of a collective work: Unless there is a written agreement to the contrary, the author of
the collective work owns copyright in the collective work as a group and may revise the
collective work or produce a new series.
Author of a contribution to a collective work: Unless there is a written agreement to the
contrary, the author of a contribution to a collective work owns copyrights in the individual
work and only grants rights for use in the collective work. The author of an individual
contribution may restrict the use in the collective work or may license the individual work for
other uses or for other collections.
Difference between joint authorship and a contribution to a collective work: The joint author
is a co-owner of copyright and acquires all rights and obligations of a co-owner. The joint
author may license the work. The author of a contribution of a collective work does not own
copyright in the collective work and may not license the collective work.
Work made for Hire:
Work made for hire is either a work prepared by an employee within the scope of his or her
employment; or a work specially ordered or commissioned for use as a contribution to a

collective work, as a part of a motion picture or other audiovisual work, as a translation, as a

supplementary work, as a compilation, as an instructional text, as a test, or as an atlas, if the
parties expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire.
Works prepared by an employee within the scope of employment:
A work made for hire can be created in two separate ways:
1. Within the scope of employment
2. Commissioned works
Within the scope of employment:
In this method the court will examine the relationship between the hired party and the person
doing the hiring. If the court determines that the work was created within the scope of an
employer employee relationship, the work will be categorized as made for hire.
Checklist for work made for hire:
Is the work created within the scope of employment?
Do the parties have an employer employee relationship?
What is the level of skill required in the particular occupation?
Does the employer or the worker supply the instrumentalities and tools of the trade?
What is the location of the work?
For what length of time is the worker employed?
Does the hiring party have the right to assign additional work projects to the hired party?
What is the extent of the hired partys discretion over when and how long to work?
What is the method of payment?
What is the hired partys role in hiring and paying assistants?
Is the work part of the regular business of the hiring party?
Is the hiring party in business?
Were employee benefits provided to the hired party?
What is the tax treatment of the hired party?
Commissioned works:
The second method as made for hire is if
1. The work is specially ordered;
2. There is a written agreement signed by both parties indicating it is a work made for hire;
3. The work is used in one of a group of specially enumerated works.
To qualify a commissioned work made for hire the work must be used as:
1. A contribution to a collective work

2. Part of a motion picture or other audiovisual work

3. A translation
4. A supplementary work i.e., a work prepared for publication as a subsidiary adjunct to
a work by another author for the purpose of introducing, concluding, illustrating,
explaining, revising, commenting upon or assisting in use of the other work, such as
forewords, after words, pictorial illustrations, maps, charts, tables, editorial notes,
musical arrangements, answer material for tests, bibliographies, appendixes, and
indexes).
5. A compilation
6. An instructional text i.e., a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional activities.
7. A test or answer material for a test
8. An atlas
9. A sound recording
TRANSFER AND DURATION:
Duration of copyright:
Works published prior to 1923 are treated as public domain.
Works published from 1923 through 1963 copyright will be given for the initial term of 28
years. If renewed during the 28th year, copyright is extended for an additional 67 year period.
Works published from 1964 through 1977 copyright will be given for the initial term of 28
years with an automatic renewal for an additional 67 years.
Works created on or after January 1, 1978, whether published or unpublished:
For one author life of author plus 70 years
Joint authors life of surviving author plus 70 years
Works made for hire 95 years from first publication or 120 years from creation whichever is
less
Anonymous and pseudonymous works 95 years from first publication or 120 years from
creation, whichever is less. If authors name is disclosed to copyright office, life of author
plus 70 years
Works created before 1978 and unpublished as of December 31, 2002 copyright expires 70
years after death of author unless author has already been dead more than 70 years, in which
case protection ends on January 1, 2003.(The work must not have been registered prior to
1978).
Works unpublished and not registered as of 1978 but published between January 1, 1978 and
January 1, 2003 copyright expires 70 years after death of author, but no earlier than
December 31, 2047.

Transfer of copyright:
The following are various methods of transferring copyright ownership:
Assignment or exclusive license: an assignment is a transfer of ownership interest. An
exclusive license is a grant of one or all of the rights constituting copyright in such a manner
that no other party will be granted a similar right. Assignments and exclusive licenses require
a written agreement evidencing the transfer, signed by the party transferring rights.
Mortgage or security right: a copyright may be mortgaged or used as security for an
obligation. Mortgages and security interest transfers require a written agreement evidencing
the transfer, signed by party transferring rights.
Transfer upon death: If a owner of copyright dies with a valid will, the copyright will be
transferred to the designated beneficiary. If an owner of copyright dies without a will, transfer
of ownership will occur according to the rules of intestate succession.
Operation of law: under certain circumstances (ex: bankruptcy, mortgage, foreclosure,
divorce) a court can order the transfer of an interest in copyright.
LIMITATIONS OF COPYRIGHTS:
1. Libraries or archives may reproduce and distribute one copy of a copyrighted work
and maintain three copies for preservation if there is no commercial advantage, the
library is open to the public, and a copyright notice is placed on the work.
2. Libraries and archives are not liable for infringement for unauthorized photocopying
of copyrighted works by their patrons as long as a notice is placed on the equipment
warning that the making of copies may be subject to copyright law.
3. Secondary transmissions whereby hotels and other similar establishments relay radio
and television transmissions to private guest rooms without charge are acceptable.
4. Radio and television stations that have entered into lawful arrangements to perform
works may make one temporary or ephemeral recording of the work so that it is easier
for them to transmit it and may preserve it for archival purposes. Ex: a radio station
may copy a compact disc onto a cartridge so it can be readily played.
5. An owner of a computer program may make a copy of it for archival or backup
purposes.
6. Displays in face to face teaching activities of non-profit educational institutions and
certain transmissions that are part ofttttt systematic instructional activities of a
governmental body or non-profit educational institution.
7. Displays in the course of religious worship and services.
8. Home style type displays.
COPYRIGHT FORMALITIES AND REGISTRATION:
Copyright formalities are divided into the following sections:

1.
2.
3.
4.
5.

importance of the copyright notice

form and placement of copyright notice
importance of registration with the copyright office
procedure for registration with the copyright office
mandatory deposit requirements

IMPORTANCE OF COPYRIGHT NOTICE

Copyright notice is no longer necessary for a work to be protected under copyright law. For
any work published after March 1, 1989, the copyright notice is strictly optional, though
highly recommended. However, if a work was first published before March 1, 1989,
copyright notice was required for the work to be protected under copyright. Works that were
published without a copyright notice prior to this date may have lost all right to copyright
protection.
Even though the copyright notice is no longer required, it should still be placed on all
published works. Use of the notice is recommended for the following reasons:

it informs the public that the work is protected by copyright (and thereby helps to

scare aware potential infringers);

it prevents a party from claiming the status of "innocent infringer," which may allow a

party to escape certain damages under the Copyright Act; and

it identifies the copyright owner and the year of first publication (so that third parties
will know who to contact to request a license to the work).There is no need to register
the work with the Copyright Office or to seek any other kind of permission before
using the copyright notice.

FORM AND PLACEMENT OF THE COPYRIGHT NOTICE:

The copyright notice generally consists of three elements:
1. The symbol (the letter C in a circle), or the word "Copyright" or the abbreviation
"Copr.";
2. The year of first publication of the work; and
3. The name of the owner of copyright in the work.
Example: 1996 Jane Doe
If the work is unpublished, the appropriate format for the notice includes the phrase
"Unpublished Work" and the year of creation.
Example: Unpublished Work 1995 John Doe
The "C in a circle" notice is used only on "visually perceptible copies." Certain kinds of
works--for example, musical, dramatic, and literary works--may be fixed not in "copies" but
by means of sound in an audio recording. Since audio recordings such as audio tapes and
phonograph disks are "phonorecords" and not "copies," under the Copyright Act, the "C in a

circle" notice is not used to indicate protection of the underlying musical, dramatic, or literary
work that is recorded. Instead, a symbol composed of the letter "P" in a circle is used. Since
computer software and apps for mobile devices are considered to be visually perceptible
(with the aid of a machine), the copyright notice for software and apps should use the C in a
circle format.
The notice should be affixed to copies or phonorecords of the work in such a manner and
location as to give reasonable notice of the claim of copyright. For computer software, the
copyright notice is generally placed on the medium of distribution. If physical media is used
to distribute the software, the notice should be placed on the disk that contains the software.
If the software is downloaded, such as a mobile device app downloaded from an app store, a
copyright notice should appear on the page or screen that is displayed when the product is
downloaded. In addition, it is wise to make the copyright notice visible on the screen when
the program is executed. One way of doing this is to include the notice on a splash screen that
is temporarily shown when the program is initially executed.
COPYRIGHT REGISTRATION
Copyright registration is the process by which a formal claim of copyright is filed on a work
with the U.S. Copyright Office. Registration is not a condition of copyright protection,
although it is a prerequisite for filing a copyright lawsuit on U.S. origin works. However, it is
possible to file a lawsuit on a previously unregistered work merely by filing an application
for registration immediately prior to initiating the lawsuit.
Even though registration is not a requirement for copyright protection, the Copyright Act
does provides several inducements or advantages to encourage copyright owners to file for
copyright registration. Among these advantages are the following:

If registration is made within 3 months after publication of the work, it is possible to

collect statutory damages and attorney's fees in infringement actions (otherwise only

actual damages may be collected);

If made before or within 5 years of publication, registration will establish prima facie
evidence in court of the validity of the copyright and of the facts stated in the

certificate;
Registration establishes a public record of the copyright claim and allows for the

recordation of transfers of ownership of the copyright; and

Registration allows the copyright to be used to prevent the importation of infringing
copies.

PROCEDURE FOR COPYRIGHT REGISTRATION

An application for copyright registration may be made at any time during the life of the
copyright (see the BitLaw discussion on the duration of copyrights for more information). An
application to register a work is made by submitting the following three items to the U.S.
Copyright Office:
1. a properly completed application form;
2. a nonrefundable filing fee (see the Copyright Office website for more details on the
fee); and
3. a nonreturnable deposit of the work being registered.
4. There are a variety of copyright registration forms which can be used; the correct
5.
6.
7.
8.

form depends upon the type of work being registered:

Form TX: for published and unpublished nondramatic literary works;
Form SE: for serials such as periodicals or newspapers;
Form G/DN: for a complete month's issues of a daily newspaper;
Form PA: for the performing arts (musical and dramatic works, motion pictures, and

other audiovisual works);

9. Form VA: for the visual arts (pictorial, graphic, and sculptural works); and
10. Form SR: for sound recordings.
The deposit is generally one or two copies of the best edition of the work. For computer
programs, the deposit requirement is one source code print out of the first and last 25 pages of
the program. For a program of fewer than 50 pages, the deposit is a copy of the entire
program. In addition, provisions are included for blocking out important portions of the
source code in order to protect trade secrets.
MANDATORY DEPOSIT REQUIREMENTS
Section 407 of the Copyright Act requires the "owner of copyright or of the exclusive right of
publication" in a work published in the United States to deposit copies of the work in the
Copyright Office within 3 months of the date of such publication. Publication is defined by
the Act as "the distribution of copies or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending." The mandatory deposit provision
ensures that the Library of Congress has access to every copyrightable work published in the
United States.
Failure to abide by this mandatory deposit provision has no effect on the copyright protection
available for the work. The only enforcement provision in the statute applies in cases where
the Register of Copyrights makes a written demand for the required deposit. If the required
deposit is not made within 3 months of the demand, the person or organization obligated to
make the deposit is liable for a fine of not more than $250 for each work plus the retail price
of the copies. In addition, if the refusal to comply is willful or repeated, an added fine of
$2,500 may be incurred.

INTERNATIONAL COPYRIGHT LAW:

International copyright is determined by copyright treaties. These treaties provide national
treatment between foreign country and the home country. National treatment is an
arrangement between signatories to a treaty in which each member country agrees to protect
the rights of foreign citizens as it would protect its own citizens.
Berne convention:
The oldest international copyright treaty is the Berne convention, organized in 1886 in Berne,
Switzerland. Every member nation must give national treatment to the authors of the other
Berne convention countries. This convention is administered by WIPO (world intellectual
property organization) and is distinguished by three elements:
The minimum term of copyright protection is life of the author plus 50 years.
No formalities such as notice or registration are required for copyright protection.
Protection must be granted for certain moral rights. Moral rights protect the professional
honor and reputation of an artist by guaranteeing the right to prevent distortion, mutilation, or
other modification of the work.
Universal copyright convention:
It was created in 1952 under the direction of UNESCO. There are two important elements to
UCC protection:
Every UCC member nation must give national treatment to the authors of other UCC
countries.
As long as the copyright owner uses the copyright notice required by the UCC (the symbol
, name of the owner, and the year), then the owner is excused from any other formal
requirements by another UCC nation.
Buenos Aires convention of 1910:
It was ratified in 1911, and it is a treaty between US and 16 central and South American
nations. There are two separate BAC treaties, on for patents and designs and the other for
copyright. The only formality required for national protection is use of the term All Rights
Reserved.
GATT:
This agreement is intended to harmonize international trade. The agreement established three
important elements:
Each GATT signatory must abide by substantive provisions of the Berne convention i.e.,
these countries can establish no formalities and copyright must last for at least life of the
author plus 50 years.

Every GATT member country must provide penalties for copyright infringement, including
injunctions and monetary damages.
Every GATT member country must provide a means for excluding infringing goods at its
border.
SEMICONDUCTOR CHIP PROTECTION ACT:
Introduction Semiconductor Integrated Circuits (ICs) are embedded in a wide and varied
assortment of devices that have become commonplace in our daily life. Microwaves, mobile
phones, televisions, computers, music players, digital cameras, automobiles, etc. have a large
number of ICs that perform various functions. The extensive use of ICs can be attributed to
integration of a large number of tiny components (transistors) onto a small chip instead of
manual assembly of circuits using discrete electronic components that was prevalent earlier.
The integrated circuits mass production capability, reliability, and building-block approach to
circuit design ensured the rapid adoption of standardized ICs in place of designs using
discrete transistors.
Semiconductor Layout Design
Layout design may be defined as the process of creating an accurate physical representation
of an engineering drawing that conforms to constraints imposed by the manufacturing
process, the design flow, and the performance requirements shown to be feasible by
simulation.
Semiconductor Design Protection
The United States of America was the home to semiconductor industry and it came as no
surprise that the USA was the first jurisdiction to initiate legislation for protection of
semiconductor layout designs. Thereafter, more countries have followed suit and have
enacted legislation to protect semiconductor design work in their territories. The protection of
layout design in these countries can be primarily attributed to three reasons: compliance with
World Trade Organization (WTO) membership requirement, protection of their domestic
semiconductor layout design companies, and protection of their domestic semiconductor
manufacturing industries. The legislations enacted in few of the jurisdictions are described in
the later sections.
At the behest of the semiconductor industry and to safeguard the semiconductor industrys
significant contribution to the US economy, the US Congress enacted the Semiconductor
Chip Protection Act (SCPA) in 1984. The provisions of the SCPA are briefly outlined below.
A semiconductor chip product as defined by the SCPA is the final or intermediate form of
any product: (a) having two or more layers of metallic, insulating, or semiconductor material,

deposited or otherwise placed on, or etched away or otherwise removed from, a piece of
semiconductor material in accordance with a predetermined pattern; and (b) intended to
perform electronic circuitry functions.
A mask work is defined as a series of related images, however fixed or encoded: (a) having
or representing the predetermined, three-dimensional pattern of metallic, insulating, or
semiconductor material present or removed from the layers of a semiconductor chip product;
and (b) in which series the relation of the images to one another is that each image has the
pattern of the surface of one form of the semiconductor chip product.
Protection
The SCPA grants the owner of a mask work the exclusive rights to reproduce the mask work
through optical, electronic or any other means and to import or distribute a semiconductor
chip product in which the mask work is embodied. The SCPA also allows the owner of the
exclusive rights to transfer or license all or some of the exclusive rights. The owner of a mask
work granted under the SCPA may affix a notice indicating such protection. The notice of
protection may consist of the words mask work, or the symbol *M*, or the letter M in a
circle. The notice of protection can also be shown by indicating the name of the owner or
owners of the mask work or an abbreviation by which the name is recognized or is generally
known. Commonly used designs cannot be protected either individually or in combination if
the combination is obvious to a Person Ordinarily Skilled In The Art (POSITA). Moreover,
any variants of the known designs and combination of the variants cannot be protected if
either the variants or the combination is obvious to the POSITA. Further, the SCPA does not
extend protection 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.
Duration of Protection
The protection granted to mask works shall commence on the date on which the mask work is
registered or on the date on which the mask work was first commercially exploited anywhere
in the world, whichever occurs first. The protection provided to mask works shall extend till
the end of the calendar year of the tenth year from the date on which such protection
commences. For example, if the protection of a mask work commenced on January 1, 2000
then the protection will not expire on January 1, 2010 but will expire on December 31, 2010.
Limitation of Exclusive Rights:
Reverse Engineering

The SCPA allows reverse engineering of ICs and does not consider reproduction of the mask
work by a person as an infringement of exclusive rights of an owner of the mask work.
According to 17 USC 906, reverse engineering is not considered as an act of infringement.
However, this is applicable when the mask work was reproduced solely for the purpose of
teaching, analyzing, or evaluating the concepts or techniques embodied in the mask work or
the circuitry, logic flow, or organization of components used in the mask work. Thus, a
person does not infringe on the exclusive rights of the owner if the person performs an
analysis on an IC to incorporate the results of the analysis in an original mask work which is
to be distributed. However, in the event of creation of such an original mask work, the person
may not reproduce a particular semiconductor chip product without the authority of the
owner of the mask work.
Innocent Infringement
In addition to allowing reverse engineering of ICs for the purposes of teaching and further
improving existing designs, the SCPA limits the exclusive rights of the owners of mask works
in case of innocent infringement. A purchaser of an infringing semiconductor chip product is
considered as innocent if the purchaser was not aware of protection of the mask work
embodied in the semiconductor chip product. In this case, according to SCPA an innocent
purchaser will not be liable with respect to importation or distribution of units of the
infringing semiconductor chip product. However, if the purchaser was aware of protection of
the mask work before purchasing the infringing semiconductor chip then the purchaser is
held liable for a reasonable royalty. The reasonable royalty is levied for each unit of the
infringing semiconductor chip product that the purchaser imports or distributes. The
immunity provided to an innocent purchaser from liability extends to any person who directly
or indirectly purchases an infringing semiconductor chip product from the innocent
purchaser.

UNIT -5
TRADE SECRETS
INTRODUCTION TO TRADE SECRETS:
A trade secret is defined as any formula, pattern, device, or compilation of information which
is used in ones business that is treated with confidentiality and which gives the owner of the
secret an opportunity to obtain an advantage over competitors who do not know or use it.
SUBJECT MATTER OF TRADE SECRET:
Trade secret law protects information, including a formula, pattern, compilation, program,
device, method, technique, or process, that:
Derives independent economic value from not being generally known or readily
ascertainable by proper means by other persons, and
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
MAINTAINING TRADE SECRET:
Companies should consider the following methods to protect trade secrets:
Review all company operations and proprietary information to determine where trade
secrets exist
Use nondisclosure (confidentiality) agreements with all individuals having access to
the trade secrets, including employees, officers, bankers, vendors, etc.
Consider use of noncompetition agreements (covenants not to compete)
A covenant not to compete is a contract clause where a person agrees not to
engage in a specified business or occupation
The covenant will identify the applicable time and geographic region, e.g., the
employee will not leave the company's employ and work in the meat
processing industry for the next two years, within the United States
Examine physical and network security issues:
Restrict access to company trade secrets
Utilize computer passwords, "confidential" stamps/legends, record-keeping
procedures, entrance and exit interviews, etc.
PHYSICAL SECURITY
The first defense for trade secret is the workspace. Following are the check list for workplace
security:
1. Access to the building:
Is the entrance to the building secure?

Are visitors or after hours employees required to sign in?

Does the building have a fence, an alarm, or a guard system?
2. Access to portions of the building:
Do employees wear name badges?
Is employee access restricted in areas where confidential material is located?
Are any closed circuit cameras in place?
3. Precautions observed by employees:
Is there security education for employees?
Are there reminders to employees about dealing with secrets?
Are file cabinets and desks locked?
Are persons leaving restricted areas subject to search?
Is there a document control policy?
4. Locations of computers, copying devices and other devices:
Are machines in secure areas?
Is access to machines restricted?
Do users of machines log their usage?
Is a machine used to destroy confidential material?
5. Systems used to access computer and telephone networks:
Are passwords required for access?
Are the passwords changed frequently?
Has a secure electronic wall been created that prevents outsiders from accessing the
companys network?
6. Stamps and signs:
Does the company uses stamps such as confidential material or restricted?
Are signs posted throughout the workplace restricting access?
Are security rules posted?
7. Documentation:
Are all notebooks or other materials used in the development or maintenance of trade
secrets properly documented and treated with confidentiality and secrecy?
Is an official internal list of trade secret materials maintained?
Is it is updated frequently?
Is it sufficiently broad to cover any materials regarded as proprietary?
EMPLOYEE ACCESS LIMITATIONS
An employee may inadvertently disclose the information for example by accidentally faxing
or mailing it to the wrong party. An employee may deliberately disclose the secret for an
illegal purpose. An employee may acquire the confidential information legitimately during
the course of employment and then uses it at a new job. The disclosure of the information is
crime or not depends on several factors like employment i.e., employee or independent
contractor, whether the material is confidential or publicly known, safeguards used by the
company to protect the material, whether the employee had executed confidentiality
agreement with the company etc.
EMPLOYEE CONFIDENTIALITY AGREEMENTS

Companies often require that all employees enter into a confidentiality agreement before
beginning employment. A confidentiality agreement also known as nondisclosure agreement
is a contract that restricts the disclosure of trade secrets. The terms of confidentiality
agreement are sometimes disclosed within an employment agreement.
UNFAIR COMPETITION:
The term unfair competition is a broad term covering a wide variety of deceptive practices in
the market. It includes:
1. Passing off:
It occurs when one party attempts to pass off or sell his or her goods or services as those of
another.
2. Misappropriation:
It exists when one party takes or uses anothers property that the original owner created or
secured at effort and expense.
3. Infringement of the right of publicity:
A persons name, identity, voice, likeness, or character is protected against unauthorized
commercial exploitation through the right of publicity.
4. False advertising:
Making false or deceptive representations about the nature of ones goods or services is
actionable as false advertising.
5. Product disparagement:
Making false representations about nature of another partys goods or services is actionable
as product disparagement.
6. Dilution:
Using anothers famous mar in a way that is likely to cause blurring of its distinctive quality
or tarnishing (ruining) it by harming its reputation is actionable as dilution.
7. Infringement of trade dress:
Adopting the overall concept of anothers distinctive packaging or product image, generally
called its trade dress so as to deceive consumers is an infringement of trade dress.
TRADE SECRET LITIGATION:
Trade secret litigation is usually based upon tow theories. If the secret was acquired by
misappropriation, then there has been a violation of the state trade secret law. If the trade
secret is disclosed in violation of an agreement to maintain secrecy the disclosing party has
breached an agreement.
Misappropriation and improper means

Misappropriation means acquisition of a trade secret of another by a person who knows or

has reason to know that the trade secret was acquired by improper means or disclosure or use
of trade secret of another without express or implied consent by a person who:

Used improper means to acquire knowledge of the trade secret or

At the time of disclosure or use, knew or had reason to know that his or her
knowledge of the trade secret was:
a) Derived from or through a person who had utilized improper means to acquire
it
b) Acquired under circumstances giving rise to a duty to maintain its secrecy or
limit its use
c) Derived from or through a person who owed a duty to the person seeking

relief to maintain its secrecy or limit its use or

Before a material change of his or her position, knew or had reason to know that it
was a trade secret and that knowledge of it had been acquired by accident or mistake.

Improper means is defined as the illegal acquisition of trade secrets through theft, bribery,
misrepresentation, breach, or inducement (incentive or encouragement) of a breach of a duty
to maintain secrecy, or espionage (spying or intelligence) through electronic or other means.
Breach of contract
If a party has breached an agreement not to disclose the secret, there has been a breach of
contract. The measure of damages for breach of contract is the amount that will compensate
the aggrieved party for all the detriment (loss or harm) proximately (nearly) caused by the
breach. Similarly, if the disclosure results from a breach of fiduciary duty, the claim would be
for a breach of fiduciary duty rather than a breach of contract.
Applying state law:
Unless a case is brought under economic espionage act, if a trade secret case is brought in
federal court, state trade secret law is used to decide the case. If both the parties are from
same state and the misappropriation occurred in that state the choice of state law is simple. If
the parties are from different states, there are several variables. If there is a written
agreement, such as a nondisclosure agreement, that contract may establish which state law
will apply. If there is no such written agreement regarding disclosure of trade secrets, then the
court will determine which state law should apply. This may be based upon factors such as
relationship of the parties, the domicile of the disclosing party, or locations of
misappropriation.

UNIT - 4
TRADE MARKS
INTRODUCTION TO TRADE MARKS:
A trade mark (popularly known as brand name in laymans language) is a visual symbol
which may be a word to indicate the source of the goods, a signature, name, device, label,
numerals, or combination of colours used, or services, or other articles of commerce to
distinguish it from other similar goods or services originating from another.
A trade mark provides protection to the owner of the mark by ensuring the exclusive right to
use it or to authorize another to use the same in return for payment. The period of protection
varies, but a trade mark can be renewed indefinitely beyond the time limit on payment of
additional fees. Trade mark protection is enforced by the courts, which in most systems have
the authority to block trade mark infringement.
The object of trade mark law is to protect the rights of persons who manufacture and sell
goods with distinct trade marks against invasion by other persons passing off their goods
fraudulently and with counterfeit trademarks as those of the manufacturers.
There are four types of marks:

Trademarks are used for goods.

Service marks are used for services.
Certification marks are used to certify some quality of a product or service.
Collective marks indicate membership in an organization.

Functions of Trademarks:
1. They identify one makers goods or services and distinguish them from those offered
by others.
2. They indicate that all goods or services offered under the mark come from a single
producer, manufacturer or source.
3. They indicate that all goods or services offered under the mark are of consistent
quality.
4. They serve as an advertising device so that consumers link a product or service being
offered with a mark.
TRADE MARK REGISTRATION PROCESS:
1. Preparation the application:
Introduction: Once a mark has been selected and evaluated for use and registrability, an
application for registration of the mark should be prepared and filed. The written application
comprises a request for registration, the name of the applicant, the citizenship of the
applicant, the address of the applicant, an identification of the goods and / or services offered

under the mark, a verification or declaration signed by the applicant or agent or attorney, a
filing fee, and the basis for filing the application, namely whether the application is based on
actual use of the mark or the owners intent to use the mark. The application must be in
English. Application must be in letter size paper, typewritten, double spaced with margins of
at least 11/2 inches at the left and top of the pages. The application should be written on only
one side of the paper. There is a provision of filing the application electronically and these
documents are examined more quickly than the manual documents.
Applicant: The application to register a mark can be made only by the owner of the mark or
in the case of intent to use application by a person who has a bona fide intent to use the mark
in commerce. An applicant may be a natural person or business entities. Government entities
such as nations, states, municipalities and other governmental bodies can also apply to
register the marks that they own. The name of the applicant must be in legal form. If the
applicant is a person or business that conducts business under a fictitious business name then
the application must include the same name. In case of business entities the name that is
included in articles of association must be included.
Identification of goods and services: The applicant must identify the goods and services
offered under the mark subject to the application. The goods and services are classified into
45 classes (34 goods and 11 services) called international classes as most of the nations use
the same classes. While filing the application the goods must be identified clearly, accurately
and concise otherwise after filing the application it is not permitted to change the class.
Basis for filing the application and method of use: The application submitted usually specifies
one of the following bases and states the manner in which the mark is used.

Actual use of the mark in commerce, specifying a date of first use in commerce
A bona fide intent to use the mark in commerce
A bona fide intent o use the mark in commerce and a claim that the mark is the subject

of a prior foreign application

A bona fide intent to use the mark in commerce and a claim that the mark is the
subject of a prior foreign registration

2. Drawing / Display of mark:

There are two types of drawings: standard character drawings and special form drawings. A
standard character drawing is simply a typewritten display of mark. It is used when the mark
consists solely of words, letters, or numbers with no pictorial or graphical element. The
application must include a statement that the mark is in standard characters and no claim is
made to any particular style, color, size which statement will appear in the official gazette and

on the certificate of registration. The applicant may use any font, bold or italicized letters, an
uppercase and lowercase letters.
A special form drawing is used when applicants seek to register a mark that includes a two or
three dimensional design, color and words, letters, or numbers or a combination in a
particular font style or size.
Specimens: The applicant must submit a proof of mark in commerce by providing specimen
of the mark showing exactly how the mark is seen by the public at the time of application.
For applications filed electronically the applicant must submit a digitalized image of the
specimen in jpg format. For paper applications actual tags, bags, labels and other similar
items are highly preferred photocopies. Advertising material is generally not acceptable as a
specimen for goods. Thus merely including brochure or ad about products such as soap or
clothing is insufficient.
Declaration and signature: The application must be signed by and include a declaration or
verification by the applicant or its agent or attorney. The declaration is a statement placed at
the end of the application whereby the signatory acknowledges that the statements in the
application are true and that the signatory understands that willful false statements are
punishable by fine or imprisonment. If the application is one made by an individual, this
individual will sign the document. If the applicant is a corporation or partnership, the
application is usually signed by an officer of the corporation or a general partner respectively.
The principal and supplemental registers: The application should designate whether the
application seeks registration on the principal register or the supplemental register.
Registration with principal register is preferred because it offers a wider scope of protection
for a mark. Registration on the supplemental register is an indication that a mark does not yet
distinguish but ultimately is capable of distinguishing the applicants goods or services from
those of another.
Differences between principal and supplemental registrations:
Registration on principal register is prima facie evidence of the registrants exclusive right to
use of the mark, registration on the supplemental register has no such evidentiary effect.
Registration on principal register is constructive notice of a claim of ownership so as to
eliminate a defense of good faith in an infringement suit but a supplemental registration has
no such effect.
Registration on the principal register may become incontestable (unquestionable) after five
years of registration but supplemental registration may never achieve that status.

Registration on supplemental register cannot be used to stop importations of infringing

goods.
3. Filling the application:
The application must be filed with patent and trademark office within a reasonable time after
it has been signed by the applicant, generally within one year after signature. The application
must be accompanied by a filing fee for each class of goods and or services. The filing date of
the application is critical because it initiates various time limits like knowing the status of
application, use of mark, to file a mark in foreign country.
4. Docketing critical dates:
Most firms maintain dockets in their computerized system or a simple tickler file composed
of index cards and divided into monthly categories, to serve as reminders of needed action in
the coming months.
5. Initial role of the patent and trademark office:
When the patent and trademark office receives a paper application it scans the documents and
creates an electronic file called a file wrapper which is the official file and it contains the
application, drawing, specimens, and all communications with PTO. Within several weeks
after a paper application is filed PTO will issue an official filing receipt or email confirmation
of filing. The receipt will confirm the filing date of application, provide a serial number, and
confirm all details of application including dates of first use, basis for filing, applicants name
and address, goods or services offered under the mark, and international class.
6. The Examination process:
After the receipt of official filing receipt or email confirmation the application is assigned for
review to an examining attorney. Examining authorities are assigned to law offices each of
which has responsibility for certain types of applications. Applications by the same party for
identical or similar marks, called companion applications will be handled by the same
examining attorney. Applications by different parties for conflicting marks called conflicting
applications are not handled by the same examining attorney.
Office actions and refusals to register marks
After five months of filing the application the examining attorney assigned to the application
will issue a first action or office action regarding the application if there are any defects in the
application. If there are no defects in a use based application PTO will approve the
application for publication in the official gazette. A written communication is sent to the
applicant stating mark has been refused to register and explains why registration has been
refused.

Curing informalities and technical defects in the application

In many instances the application may contain deficiencies that must be corrected before the
application may be approved. The office action suggests that the applicant telephone or email
the examining attorney to resolve the issue and often suggests a remedy for the defect. The
examining attorney will issue an examiners amendment setting forth the agreed upon
correction or clarification thereby eliminating the need for the applicant to file a formal
written response to the office action.
Substantive refusals
In many instances the refusal to register is not due to some minor or technical error in the
application that can be readily corrected but is due to a more significant or substantive defect
or due to a statutory provision that would preclude registration. In these cases the attorney
will set forth the reason why the mark has been refused for registration. Some of the common
substantive refusals are as follows:
The mark is immoral or scandalous (wicked).
The mark is deceptive (misleading).
The mark disparages (laugh at) a person or a national institution or displays the flag or
insignia (sign or symbol) of a nation.
The mark displays the portrait of a living person without his or her consent.
The mark is primarily merely a surname.
The mark is geographically deceptively misdescriptive.
The mark is confusingly similar to another registered or applied for mark at PTO.
Refusals on the basis of descriptiveness
In case of refusal of registration on the basis of descriptiveness the applicant will then submit
a response to the office action arguing that the mark is not descriptive. If only a portion of the
mark is descriptive or generic, that portion may be disclaimed. The purpose of a disclaimer is
to allow registration of a mark that includes nonregistrable matter.
Refusals on the basis of confusing similarities
The marks can also be refused to register if it resembles a mark registered or applied for with
the PTO and it would be likely to cause confusion, mistake or to deceive consumers. The
applicant then have to overcome the refusal to register by citing case law and analogizing
cases in which confusion was not found , submitting evidence that they are offered to
different purchasers and by submitting copies of other registered marks that have been
allowed to coexist. The applicant may contact the owner of the cited mark and seek a license

to use the mark or seek its consent to coexistence and registration. The applicant may need to
pay the prior user some amount of money to secure the consent.
Response to office actions
The applicant has six months to respond to an office action. Failure to respond within the
appropriate time period will result in abandonment of the application unless the delay was
unintentional.
7. Post examination procedure
Publication in the official gazette
Assuming the applicant responds satisfactorily to the office action, the examining attorney
will approve the mark for publication in the weekly official gazette. A notice of opposition
must be filed within 30 days of publication of the mark in the official gazette. Extension of
time to oppose may be granted as follows:

A first request for a 30 day extension will be granted without a showing of good
cause. Alternatively, a first request for a 90 day extension will be granted upon a

showing of good cause.

If the first request was for 30 days a second request for a 60 day extension will be

granted upon a showing of good cause.

After receiving extensions totaling 90 days a final request for a 60 day extension will
be granted if the trademark applicant consents or if there is a showing of extraordinary
circumstances. The time for filing an opposition may not be extend beyond 180 days
from the date of publication of the official gazette.

Intent to use applications and statements of use

If the application was based on the applicants intent to use the mark in commerce in the
future, the mark cannot proceed to register until actual use has been shown. Intent to use
applications after publication, the PTO will issue a notice of allowance notifying the
applicant that the intent to use application has been allowed and granting the applicant six
months within which to commence use of the mark and submit a statement and specimen
verifying such use and he dates of first use.
Abandonment and revival of applications
Trademark applications are deemed abandoned by the PTO if a timely response is not made
to an office action or to a notice of allowance and the PTO will issue a formal notice of
abandonment to the applicant. However PTO allows for revival of abandoned applications if
a petition to revive is filed within 2 months of the mailing date of the notice of abandonment.

The applicants petition must state that the delay in responding to the office action or notice
of allowance was unintentional.
8. Registration
For a use based application, a registration will issue about 12 weeks after publication in the
official gazette if no notice of opposition is filed to the application. For an intent to use
application registration will occur after publication in the official gazette notice of allowance
of mark, and submission of the statement of use and requisite specimen and fee. The
application process for use based applications can take 12 to 18 months or longer and the
process for intent to use applications can take from 18 to 42 months or longer. The term of
registration is presently 10 years from the date of mark is registered.
POST REGISTRATION PROCEDURES:
1. Affidavit of use
Background:
Although a registration is valid for 10 years, between years five and six after a registration is
issued and in the year before the end of each 10 year period after registration the registrant is
required to file an affidavit (or declaration) of use with PTO verifying that the mark is still in
use in commerce in connection with the goods or services identified in registration. Failure to
submit the affidavit of use within in the appropriate deadline will lead to cancellation of the
registration.
Changes in ownership of the mark:
Affidavit must be filed by the owner of registration. Often marks are transferred or assigned
to other new owners who fail to notify the PTO of the change in ownership. Even though
affidavit is filed by the new owner and PTO records may continue to reflect original
registrant until appropriate changes are made in the records showing the continuity of tile to
the party now filing the affidavit.
Changes in the mark:
When filing the affidavit, the owner must attach a specimen showing the mark as it is
presently used for each class of goods or services identified in the registration. If the mark as
presently used differs from the mark as registered, the PTO must determine whether the
change is material or not. If the change is determined to be a material alteration, the affidavit
will be refused. If the PTO agrees that a change is not material and accepts the affidavit the
registrant will usually be encouraged to amend the registration so it conforms to the mark as
presently used. If the registered mark is not in use in commerce the owner may provide facts
to the PTO showing that nonuse is excusable due to special circumstances rather than any

intent to abandon the mark. The owner must also state date use of the mark stopped and when
it is expected to resume. If there is governmental regulation that precludes the owner from
using the mark non use would be acceptable.
2. Affidavit of incontestability
Trademarks permit the owners of registrations on principal register to file affidavits whereby
the right to use the registered marks for the goods or services set forth in the affidavit
becomes incontestable (unquestionable). This is not filed until the mark has been in
continuous use in commerce for at least five consecutive years after the date of registration
and the affidavit must state that there has been no final decision adverse to the registrants
claim of ownership of the mark.
3. Renewal of Registrations
Any trademark registration issued has a validity of 10 years.

Within one year before

expiration the registrant must renew the registration or it will be automatically cancelled. A
grace period of six months following the expiration of registration will be given during which
the application of renewal may be filed.
4. Docketing requirements
For proper and timely actions on trademarks details are to be stored properly and most of the
professionals maintain their own docketing systems which will generate automatic messages
for further action.
5. Loss of Trademarks
The mark will be abandoned when either of the following occurs:

The mark has become a generic name i.e., a mark can become generic when
consumers begin to call the product or service offered under the mark by the mark.

Ex: aspirin, cellophane, thermos, escalator, Xerox ; or

Use of the mark has been discontinued with intent not to resume use. Nonuse for three
consecutive years is prima face evidence of abandonment.

6. Trademark use and compliance policies

Trademark owners should initiate compliance policies to ensure use of mark properly. Failure
to monitor and actively police a mark may result in abandonment of all rights to the mark. A
trade mark compliance policy will help to ensure that a companys marks continue to enjoy
protection both under common and IP law.
Guidelines for proper trademark usage:

Display the mark prominently VISIONTREK(R)

Use mark as registered and use in consistent manner VISIONTREK(R)

Use trademark registration notice VISIONTREK(R)

Identify owner of mark. VISIONTREK(R) is a registered mark of vision corp.
Do not use the mark in plural form. VISIONTREKS guided tours will thrill you.

TRADE MARK MAINTENANCE:

Maintaining accurate records can prevent problems and can assist in defending against
infringement claims. The following list shows the five categories of trademark files that are to
be maintained and what they should include.
Use files: Materials regarding use, including samples of mark as used, dates of first use,
evidence of continued use, efforts to maintain proper trademark usage. Samples of labels,
domain names, or other uses of the mark should be preserved. If the labels or containers for
the mark are too cumbersome to maintain within the trademark files, graphic reproductions or
photographs should be used.
Registration files: All documentation during the registration process, including applications,
publications, and the certificate of registration.
PTO action post registration: Petitions, oppositions, amendments to registration.
Licensing files: Often a trademark owner licenses rights. All licenses must be recorded,
tracked, and periodically monitored to guarantee conformance with quality standards.
Infringement files: It includes evidence of infringement, service reports, cease and desist
(discontinue) letters.
TRANSFER OF RIGHTS:
Assignment of marks:
A trademark or service mark may be transferred or assigned to another if the goodwill
symbolized by the mark is assigned with it. An arrangement by which a mark is assigned
without the business goodwill that the mark symbolizes called assignment in gross is
ineffective to transfer trademark rights and the new owner who begins using the mark cannot
claim the original owners use date for purposes of establishing priority in the mark. Valuable
trademark rights could be lost if a third party begins using a mark after the assignors original
use date but before the date of an assignment in gross to the assignee. To prevent such
situation agreement will be made to transfer the mark together with the goodwill of the
portion of the business associated with the mark.
Licensing of marks:
A party may allow another party to use a mark yet retain ownership rights in the mark. Such a
form of limited permission is called license. The license agreements may be written or oral,
although most are written. The license agreement must include quality control provisions

whereby the licensor protects the mark by ensuring the goods and services offered under it by
the licensee are consistent with those offered by the licensor. The license agreement should
specify whether the license is an exclusive or nonexclusive license which indicates whether
use is restricted to any specific goods or services or to any geographic territory, and must
include adequate quality control provisions.
Trademarks as collateral:
Trademark owners may use their marks as collateral to secure their promise to perform some
obligation. During the existence of security agreement the owner retains all rights in the
mark. It allows the party to seize the marks only in the event of a default by the owner in
regard to promise or obligation.
Inter parties proceedings:
Inter parties proceedings are those involving disputes between parties regarding rights, use
and ownership of marks. There are four types of inter parties proceedings: oppositions,
cancellations, interferences and concurrent use proceedings.
Oppositions
An opposition is a proceeding initiated by a person who believes that he or she would be
damaged by registration of a mark on the principal register. The document initiating the
proceeding is called notice of opposition. If the parties themselves cannot reach some
resolution an opposition proceeding will be initiated by filing of a notice of opposition. An
opposition must be filed prior to the expiration of the 30 day period after publication of the
mark in official gazette for opposition or within an extension of time of oppose. The most
common reason a person might believe he or she will be damaged if the mark applied for
proceeds to registration is that the mark is confusingly similar to the opposers mark. The
opposer is only required to state why he or she believes registration of the mark in question
would result in the damage. Oppositions can be made on the basis of descriptiveness or that
the mark is a surname, contains immoral or disparaging matter, has been abandoned, is likely
to dilute anothers trademark. As soon as the notice of opposition or request for extension of
time to oppose is filed the examining attorney at PTO relinquishes the file to Trademark Trial
and Appeal Board (TTAB), which will handle the matter until its conclusion. The TTAB can
suspend an opposition proceeding to allow the parties to engage in settlement discussions.
Cancellations
Cancellation proceedings may be initiated after a mark is registered. Any person who believes
that he or she will be damaged by the continued existence of registration may petition to
cancel the registration. If the mark is on the principal register the petition to cancel must be

filed within five years of the registration date if the grounds are those that would have
justified denial of registration to begin with.
The petition to cancel must be set forth a short and plain statement of the reasons for the
petitioners belief that he or she will be damaged by continued registration of the mark, state
the grounds for cancellation and identify the owner of the registration so a copy of petition
can be forwarded to the owner. The petition to cancel must be brought by one who believes
he or she will be damaged by registration of the mark. The most common grounds asserted in
a petition to cancel are the ones that must be brought within five years of registration that the
mark is merely descriptive, it is confusingly similar to another mark or it has been
abandoned.
A copy of petition to cancel is a short and plain statement of the reasons for the petitioners
belief that he or she will be damaged by continued registration of the mark, state the grounds
for cancellation and identify the owner of the registration so a copy of the petition can be
forwarded to the owner.
Just as the notices of opposition petitions to cancel must be brought by one who believes he
or she will be damaged by registration of the mark. The most common grounds asserted in a
petition to cancel are the ones that must be brought within five years of registration and the
mark is merely descriptive, it is confusingly similar to another mark or it has been
abandoned. The proceedings are similar to those of the oppositions.
Interferences
If two pending applications conflict or if a pending application conflicts with an existing
registration the patent and trademark office may declare an interference. Interferences are rare
proceedings and occur only upon a showing of extraordinary circumstances. Typically, if
marks conflict, the parties resolve their differences by way of an opposition or cancellation.
When an opposition or cancellation proceeding is unavailable to a party or will not
adequately protect a party may a party request an interference proceeding.
Concurrent use proceedings
If parties use similar marks in different geographical areas a concurrent use proceeding may
be initiated. These parties used their marks in their respective areas in good faith and without
knowledge of the others existence. In this application a party requests that the registration
that will ultimately issue be restricted geographically so that on its face the registration will
state that the owner has the right to use the mark in certain identified states, cities or regions.
INFRINGEMENT:

If any person uses trademark without the registrants consent a mark that is likely to cause
confusion with the registrants mark the law provides the owner of registered mark to take
civil action in the court of law for infringement of trademark. To prevail on a trademark
infringement claim a marks owner must prove two things: mark has priority and that the
infringers mark is likely to cause confusion.
Standard for determining the likelihood of confusion

The similarity of the marks in regard to appearance, sound, connotation, and

commercial impression
The similarity of the goods or services offered under the marks
The similarity in the channels of trade in which the goods or services are offered
The conditions under which sales are made namely whether the purchases are made

on impulse or after careful consideration by sophisticated purchasers

The strength or fame of the prior mark
Whether there has been any actual confusion
The number and nature of similar marks on similar goods
The length of time during which there has been concurrent use with no confusion

Sight, sound, meaning and connotation

Marks may be confusingly similar in appearance notwithstanding the addition,

deletion, or substitution of letters.

Similarity may occur due to sound for pronunciation
Similarity in meaning may result in a finding of confusion
If marks include compound words, some courts consider whether there is a dominant

portion of the mark and give less weight to common or descriptive elements.
When marks comprise both words and designs, greater weight is sometimes given to

the wording which would be used by consumers in requesting the goods or services
If an owner has a famous mark or a family of marks that has achieved public
recognition the mark may be more likely to be infringed.

In determining likelihood of confusion courts consider to what extent the parties respective
goods or services are distributed through the same trade channels and advertised in the same
media.
Defenses of infringement

The defendant may assert that an abandonment of plaintiffs rights in the mark has
occurred through non use prior to the time the defendant began using the mark or

through a naked license.

The defendant may allege that the plaintiffs mark has become generic and is thus
undeserving of exclusive appropriation by the plaintiff.

A defense may be raised that the mark is merely descriptive and that it has not

acquired secondary meaning and thus it undeserves the protection.

The defendant might assert that the plaintiffs registration was procured by fraud is

thus invalid and cannot support an action for infringement.

The accused infringer might assert estoppels i.e., the plaintiff is precluded from
asserting trademark infringement because it led the defendant to believe that it could

use the mark.

The defendant might assert acquiescence, a defense that words or conduct on the
plaintiffs part amounted to an assurance to the defendant infringer that plaintiff

would not assert its trademark rights against the defendant.

The defendant might assert that the plaintiff has unclean hands and has committed

such a serious wrongful act that relief should not be awarded to it.
The defendant might assert laches namely the plaintiff delayed an unreasonable

amount of time to bring the action and this delay has prejudiced the defendant.
The defendant may allege the mark is functional and thus unprotectable.
The defendant might allege that its use is a mere parody and is protected by the first

amendment.
The defendant may assert that its use was a fair use meaning that it did not use the
plaintiffs name or mark as a trademark but merely to describe its goods in a general
fashion.

Remedies of infringement
A plaintiff who is successful in proving trademark infringement might obtain a variety of
remedies including the following:

An injunction preventing the defendant from further use of the confusingly similar
mark, ordering an infringer to disable an offending website or ordering the defendant

to a print a notice on its goods that it is not affiliated with the plaintiff
Monetary damages to compensate the plaintiff for the damage it has suffered,
including actual damages due to lost sales and injury to its reputation and goodwill

and an accounting of the profits earned by defendant

Seizure or destruction of the infringing articles and related marketing materials
Costs of action including attorney fees and actual expenditures

DILUTION OF OWNERSHIP OF TRADE MARK:

Dilution refers to unauthorized acts that tend to blur the distinctiveness of a famous mark or
to tarnish the mark by using it in a disparaging or unsavory way.
To prevail dilution claim a plaintiff must show four things:

Its mark is famous (either inherently or through acquired distinctiveness)

The defendant is making a commercial use of its mark in commerce

The defendants use began after the plaintiffs mark became famous
The defendants use of the mark is likely to cause dilution by blurring or tarnishing
the famous mark, whether or not there is actual confusion or actual economic injury to
the plaintiff.

Blurring and tarnishment

Blurring is the whittling (cutting) away of an established trademarks selling power through
its unauthorized use upon dissimilar products. Tarnishment is an association arising from the
similarity between a mark and a famous mark that harms the reputation of the famous mark.
TRADE MARK CLAIMS:
Trademark owners often declare/state additional claims in actions for trademark
infringement. Thus, there is an array of various causes of action a trademark owner might
assert.
Importation of gray market goods
U.S. trademark owners grant rights to those in foreign countries to manufacture goods that
bear their trademark. After the goods are distributed in the foreign markets, other parties buy
them and import them back into the US to resell to others, in competition with the original
owner. These goods are called Gray Market Goods or Parallel goods.
The law relating to the permissibility of such importation is not infringement, because once a
mark owner sells goods bearing its mark, it cannot prevent subsequent owners from reselling
the goods if there is no deception or consumer confusion.
However, if the gray market goods are materially different from the authorized imports, then
there is likelihood of confusion and the imports may be banned. Eg: TICTAC and NESTLE,
Maggi
Counterfeiting
Counterfeiting has evolved in recent years from a localized industry concentrated on copying
high-end designer goods to a sophisticated global business involving the mass production and
sale of a vast array of fake goods. Counterfeiting and piracy diminish the profits of legitimate
producers and risk harm to consumers who may purchase fraudulent, potentially dangerous
products.
A counterfeit is:

An unauthorized copy;
Not conforming to the original manufacturers design, model, and/or performance
standards;

Not produced by the stated manufacturer or produced by unauthorized contractors;

An off-specification, defective or used product sold as new or working; or
Has incorrect or false markings and/or documentation
Send cease and desist letters.
Negotiate settlement agreements enforceable by U.S. Courts.
Go into court immediately and secure preliminary injunctive relief.
Seek orders seizing the counterfeit product.
Seek discovery of counterfeiting and financial data.
Recover monetary settlements or judgments.
Destroy counterfeit goods
Take down infringing web sites.

Unfair competition
Any act of competition contrary to honest practices in industrial and commercial matters Paris Convention Art.
Focus: consumer protection
Misleading advertising
Aggressive advertising = Undue influence on consumers
Cold calling, e-mail spamming, etc. (some jurisdictions only)
Focus: protection of trade values:
Damaging goodwill
Exploiting goodwill
Interference with contractual relations
Misappropriation of trade secrets
Product imitation
Customs regulation
Additional protection is provided to the trademark owners through customs regulations. That
is the registered trademark owners have to deposit their certificates of registration with the
Customs and Border .protection service in order to block importation of offending goods.
Posting of Ports means that CBP will monitor ports of entry into the country and will seize
any unpermitted goods bearing the owners mark. Criminal sanctions may be posed on the
offending party.
TRADE MARKS LITIGATION:
Trademark litigation is often intended to halt the infringing activity, not to collect damages.
The goal of trademark litigation may be to aggressively expand its proprietary rights by
forcing others to stop using its marks. The parties in litigation are governed by rules of civil

procedure. Any claim of infringement of a federally registered trademark or violation of false

advertising can be handled by civil courts.
If the suit is based on federal question and there is no district in which the action may
otherwise be brought, the suit may be brought in the district where any defendant may be
found. If the suit is based on diversity the suit may also be brought in the district in which the
defendants are subject to personal jurisdiction at the time the action is commenced.
For the purpose of the litigation proceedings an initial complaint known as trademark
infringement complaint has to be filed in the lawsuit which includes caption which identifies
the court, parties and filing numbers, statement of facts, remedies of compensation and
signature of attorney preparing the document.
A civil cover sheet is required at the time of filing of complaint for use by the court in
maintaining statistical records. The summons explains that the defendant has been sued and
has a certain time limit within which to respond.
If the plaintiff desires a jury trial that demand should be made in the complaint and reflected
in civil cover sheet. A notice of action will appear in official gazette for trademarks which
was been informed by the clerk to commissioner of patents and trademarks.
After receiving a cease and desist letter or after the break down of negotiations to settle a
dispute the alleged infringer may ask the court for declaratory relief. This is not a claim for
monetary damages but instead is a request that the court sort out the rights and obligations of
the parties.
A response to trademark complaint must be served within 20 days of service. The response
should include a list of defenses which are to be listed separately. If the defendant wishes to
bring an action against the plaintiff a counter claim must be filed at the time answer is filed. A
counter claim is a claim for relief usually asserted by the defendant against an opposing party,
usually the plaintiff.
INTERNATIONAL TRADE MARK LAW:
The procedures for acquiring international protection vary from country to country and the
process is often expensive and complex. The following are some of the international treaties
for filing trademarks.
Paris convention
The Paris convention of industrial property limits piracy by allowing a trademark owner to
obtain priority over foreign filers. It works as follows:
A trademark owner files a application and acquires a filing date

 A trademark owner files for trademark registration in a Paris convention member

country within six months of its filing date
The member country must give trademark owner priority over any applications filed
after the filing date
The priority right extends to all countries that are members at Paris Convention.
European community treaty
In 1996 a new community Trademark system was established by the then 15 member
countries of European Union. An applicant must file either at the (OHIM) office of
harmonization in internal market or with national trademark office in a member country. The
OHIM examine the application and will disqualify it if the mark:
Is devoid of any distinctive character
Exclusively serves to designate the kind, quality, quantity, intended purpose, value,
geographical origin, or time of production of the goods or of rendering of the service,
or other characteristics of the goods or services.
Has become customary in the current language or in the bonafide and established
practices of the trade
Is contrary to public policy or to accepted principles of morality
Is of such a nature as to deceive the public
The OHIM will also notify the applicant of similar trademarks in ECT countries and the
owners of these similar marks can oppose the registration.
Madrid The International Trademark System
The Madrid System is a one stop solution for registering and managing marks worldwide.
Manage your portfolio of marks through one centralized system.
Exporting businesses, small and large, need a reliable, convenient and cost-effective
mechanism to protect trademarks in markets of interest.
Benefits of Madrid System
Convenient
The Madrid System is a centralized filing and management procedure. Through the Madrid
System you can file one international application, in one language (English, French or
Spanish), and pay one set of fees in Swiss francs to obtain international registration in
multiple territories.
Cost effective
Filing an international application is the equivalent of filing a bundle of national applications,
effectively saving you time and money.

Through the Madrid System there is no need to pay for translations into multiple languages or
to spend extra time working through the administrative procedures of multiples offices.
Broad geographic coverage
The Madrid System offers the potential for simultaneous protection in up to 111 territories of
its 95 members, including the European Union (EU) and African Intellectual Property
Organization (OAPI), the majority of developed countries and many developing and
transition countries.

UNIT -6
CYBER LAW
INTRODUCTION TO CYBER LAW:
What is Cyber Law? Cyber Law is the law governing cyber space. Cyber space is a very wide
term and includes computers, networks, software, data storage devices (such as hard disks,
USB disks etc), the Internet, websites, emails and even electronic devices such as cell phones,
ATM machines etc. Law encompasses the rules of conduct: 1. that have been approved by the
government, and 2. which are in force over a certain territory, and 3. which must be obeyed
by all persons on that territory. Violation of these rules could lead to government action such
as imprisonment or fine or an order to pay compensation.
Cyber law encompasses laws relating to:
1. Cyber Crimes
2. Electronic and Digital Signatures
3. Intellectual Property
4. Data Protection and Privacy
Cyber crimes are unlawful acts where the computer is used either as a tool or a target or both.
The enormous growth in electronic commerce (e-commerce) and online share trading has led
to a phenomenal spurt in incidents of cyber crime. These crimes are discussed in detail
further in this chapter. A comprehensive discussion on the Indian law relating to cyber crimes
and digital evidence is provided in the ASCL publication titled Cyber Crimes & Digital
Evidence Indian Perspective.
Electronic signatures are used to authenticate electronic records. Digital signatures are one
type of electronic signature. Digital signatures satisfy three major legal requirements signer
authentication, message authentication and message integrity. The technology and efficiency
of digital signatures makes them more trustworthy than hand written signatures. These issues
are discussed in detail in the ASCL publication titled Ecommerce Legal Issues.
Intellectual property is refers to creations of the human mind e.g. a story, a song, a painting,
a design etc. The facets of intellectual property that relate to cyber space are covered by cyber
law.
These include:
copyright law in relation to computer software, computer source code, websites, cell phone
content etc,
software and source code licences
trademark law with relation to domain names, meta tags, mirroring, framing, linking etc

 semiconductor law which relates to the protection of semiconductor integrated circuits

design and layouts,
patent law in relation to computer hardware and software.
Data protection and privacy laws aim to achieve a fair balance between the privacy rights of
the individual and the interests of data controllers such as banks, hospitals, email service
providers etc. These laws seek to address the challenges to privacy caused by collecting,
storing and transmitting data using new technologies.
NEED FOR CYBER LAW
There are various reasons why it is extremely difficult for conventional law to cope with
cyberspace. Some of these are discussed below.
1. Cyberspace is an intangible dimension that is impossible to govern and regulate using
conventional law.
2. Cyberspace has complete disrespect for jurisdictional boundaries. A person in India could
break into a banks electronic vault hosted on a computer in USA and transfer millions of
Rupees to another bank in Switzerland, all within minutes. All he would need is a laptop
computer and a cell phone.
3. Cyberspace handles gigantic traffic volumes every second. Billions of emails are
crisscrossing the globe even as we read this, millions of websites are being accessed every
minute and billions of dollars are electronically transferred around the world by banks every
day.
4. Cyberspace is absolutely open to participation by all. A tenyear-old in Bhutan can have a
live chat session with an eightyear-old in Bali without any regard for the distance or the
anonymity between them.
5. Cyberspace offers enormous potential for anonymity to its members. Readily available
encryption software and steganographic tools that seamlessly hide information within image
and sound files ensure the confidentiality of information exchanged between cyber-citizens.
6. Cyberspace offers never-seen-before economic efficiency. Billions of dollars worth of
software can be traded over the Internet without the need for any government licenses,
shipping and handling charges and without paying any customs duty.
7. Electronic information has become the main object of cyber crime. It is characterized by
extreme mobility, which exceeds by far the mobility of persons, goods or other services.
International computer networks can transfer huge amounts of data around the globe in a
matter of seconds.

8. A software source code worth crores of rupees or a movie can be pirated across the globe
within hours of their release.
9. Theft of corporeal information (e.g. books, papers, CD ROMs, floppy disks) is easily
covered by traditional penal provisions. However, the problem begins when electronic
records are copied quickly, inconspicuously and often via telecommunication facilities. Here
the original information, so to say, remains in the possession of the owner and yet
information gets stolen.
INFORMATION TECHNOLOGY ACT:
Enacted on 17th May 2000- India is 12th nation in the world to adopt cyber laws
IT Act is based on Model law on e-commerce adopted by UNCITRAL
Objectives of the IT Act
To provide legal recognition for transactions: Carried out by means of electronic data interchange, and other means of electronic
communication, commonly referred to as "electronic commerce
To facilitate electronic filing of documents with Government agencies and EPayments
To amend the Indian Penal Code, Indian Evidence Act,1872, the Bankers Books
Evidence Act 1891,Reserve Bank of India Act ,1934
Extent of application
Extends to whole of India and also applies to any offence or contravention there under
committed outside India by any person {section 1 (2)} read with Section 75- Act
applies to offence or contravention committed outside India by any person
irrespective of his nationality, if such act involves a computer, computer system or
network located in India
Section 2 (1) (a) Access means gaining entry into ,instructing or communicating
with the logical, arithmetic or memory function resources of a computer, computer
resource or network
Definitions ( section 2)
"computer" means electronic, magnetic, optical or other high-speed date processing
device or system which performs logical, arithmetic and memory functions by
manipulations of electronic, magnetic or optical impulses, and includes all input,
output, processing, storage, computer software or communication facilities which are
connected or relates to the computer in a computer system or computer network;

 "computer network" means the inter-connection of one or more computers through (i) the use of satellite, microwave, terrestrial lime or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers
whether or not the interconnection is continuously maintained;
"computer system" means a device or collection of devices, including input and
output support devices and excluding calculators which are not programmable and
capable being used in conjunction with external files which contain computer
programmes, electronic instructions, input data and output data that performs logic,
arithmetic, data storage and retrieval, communication control and other functions;
"data" means a representation of information, knowledge, facts, concepts or
instruction which are being prepared or have been prepared in a formalised manner,
and is intended to be processed, is being processed or has been processed in a
computer system or computer network, and may be in any form (including computer
printouts magnetic or optical storage media, punched cards, punched tapes) or stored
internally in the memory of the computer.
"electronic record" means date, record or date generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro
fiche;
secure system means computer hardware, software, and procedure that(a)

are reasonably secure from unauthorized access and misuse;

(b) provide a reasonable level of reliability and correct operation;

(c)

are reasonably suited to performing the intended function; and

(d)

adhere to generally accepted security procedures

security procedure means the security procedure prescribed by the Central

Government under the IT Act, 2000.
secure electronic record where any security procedure has been applied to an
electronic record at a specific point of time, then such record shall be deemed to be a
secure electronic record from such point of time to the time of verification
Act is in applicable to
a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925
including any other testamentary disposition
any contract for the sale or conveyance of immovable property or any interest in such
property;

any such class of documents or transactions as may be notified by the Central

Government

CYBER CRIME AND E-COMMERCE:

Cyber crimes can involve criminal activities that are traditional in nature, such as theft,
fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal
Code. The abuse of computers has also given birth to a gamut of new age crimes that
are addressed by the Information Technology Act, 2000.
We can categorize Cyber crimes in two ways
The Computer as a Target :-using a computer to attack other computers.
e.g. Hacking, Virus/Worm attacks, DOS attack etc.
The computer as a weapon :-using a computer to commit real world crimes.
e.g. Cyber Terrorism, IPR violations, Credit card frauds, EFT frauds, Pornography etc.
Cyber Crime regulated by Cyber Laws or Internet Laws.
Technical Aspects
Technological advancements have created new possibilities for criminal activity, in particular
the criminal misuse of information technologies such as
a. Unauthorized access & Hacking:Access means gaining entry into, instructing or communicating with the logical, arithmetical,
or memory function resources of a computer, computer system or computer network.
Unauthorized access would therefore mean any kind of access without the permission of
either the rightful owner or the person in charge of a computer, computer system or computer
network.
Every act committed towards breaking into a computer and/or network is hacking. Hackers
write or use ready-made computer programs to attack the target computer. They possess the
desire to destruct and they get the kick out of such destruction. Some hackers hack for
personal monetary gains, such as to stealing the credit card information, transferring money
from various bank accounts to their own account followed by withdrawal of money. By
hacking web server taking control on another persons website called as web hijacking
b. Trojan Attack:The program that act like something useful but do the things that are quiet damping. The
programs of this kind are called as Trojans.
The name Trojan Horse is popular.

Trojans come in two parts, a Client part and a Server part. When the victim (unknowingly)
runs the server on its machine, the attacker will then use the Client to connect to the Server
and start using the trojan.
TCP/IP protocol is the usual protocol type used for communications, but some functions of
the trojans use the UDP protocol as well.
c. Virus and Worm attack:A program that has capability to infect other programs and make copies of itself and spread
into other programs is called virus.
Programs that multiply like viruses but spread from computer to computer are called as
worms.
d. E-mail & IRC related crimes:1. Email spoofing
Email spoofing refers to email that appears to have been originated from one source when it
was actually sent from another source. Please Read
2. Email Spamming
Email "spamming" refers to sending email to thousands and thousands of users - similar to a
chain letter.
3 Sending malicious codes through email
E-mails are used to send viruses, Trojans etc through emails as an attachment or by sending a
link of website which on visiting downloads malicious code.
4. Email bombing
E-mail "bombing" is characterized by abusers repeatedly sending an identical email message
to a particular address.
5. Sending threatening emails
6. Defamatory emails
7. Email frauds
8. IRC related
Three main ways to attack IRC are: "verbal8218;?#8220; attacks, clone attacks, and flood
attacks.
e. Denial of Service attacks:Flooding a computer resource with more requests than it can handle. This causes the resource
to crash thereby denying access of service to authorized users.
Examples include
attempts to "flood" a network, thereby preventing legitimate network traffic

attempts to disrupt connections between two machines, thereby preventing access to a service
attempts to prevent a particular individual from accessing a service
attempts to disrupt service to a specific system or person.
Distributed DOS
A distributed denial of service (DoS) attack is accomplished by using the Internet to break
into computers and using them to attack a network.
Hundreds or thousands of computer systems across the Internet can be turned into zombies
and used to attack another system or website.
Types of DOS
There are three basic types of attack:
a. Consumption of scarce, limited, or non-renewable resources like NW bandwith,
RAM, CPU time. Even power, cool air, or water can affect.
b. Destruction or Alteration of Configuration Information
c. Physical Destruction or Alteration of Network Components
e. Pornography:The literal mining of the term 'Pornography' is describing or showing sexual acts in order to
cause sexual excitement through books, films, etc.
This would include pornographic websites; pornographic material produced using computers
and use of internet to download and transmit pornographic videos, pictures, photos, writings
etc.
Adult entertainment is largest industry on internet.There are more than 420 million individual
pornographic webpages today.
Research shows that 50% of the web-sites containing potentially illegal contents relating to
child abuse were Pay-Per-View. This indicates that abusive images of children over Internet
have been highly commercialized.

Pornography delivered over mobile phones is now a burgeoning business, driven by the
increase in sophisticated services that deliver video clips and streaming video, in addition to
text and images.
Effects of Pornography
Research has shown that pornography and its messages are involved in shaping attitudes and
encouraging behavior that can harm individual users and their families.
Pornography is often viewed in secret, which creates deception within marriages that can lead
to divorce in some cases.
In addition, pornography promotes the allure of adultery, prostitution and unreal expectations
that can result in dangerous promiscuous behavior.
Some of the common, but false messages sent by sexualized culture.
Sex with anyone, under any circumstances, any way it is desired, is beneficial and does not
have negative consequences.
Women have one value - to meet the sexual demands of men.
Marriage and children are obstacles to sexual fulfillment.
Everyone is involved in promiscuous sexual activity, infidelity and premarital sex.
Pornography Addiction
Dr. Victor Cline, an expert on Sexual Addiction, found that there is a four-step progression
among many who consume pornography.
1.Addiction: Pornography provides a powerful sexual stimulant or aphrodisiac effect,
followed by sexual release, most often through
masturbation.
2.Escalation: Over time addicts require more explicit and deviant material to meet their
sexual "needs."

3.Desensitization: What was first perceived as gross, shocking and disturbing, in time
becomes common and acceptable.
4.Acting out sexually: There is an increasing tendency to act out behaviors viewed in
pornography.
g. Forgery:Counterfeit currency notes, postage and revenue stamps, mark sheets etc can be forged using
sophisticated computers, printers and scanners.
Also impersonate another person is considered forgery.
h. IPR Violations:These include software piracy, copyright infringement, trademarks violations, theft of
computer source code, patent violations. etc.
Cyber Squatting- Domain names are also trademarks and protected by ICANNs domain
dispute resolution policy and also under trademark laws.
Cyber Squatters registers domain name identical to popular service providers domain so as
to attract their users and get benefit from it.
i. Cyber Terrorism:Targeted attacks on military installations, power plants, air traffic control, banks, trail traffic
control, telecommunication networks are the most likely targets. Others like police, medical,
fire and rescue systems etc.
Cyberterrorism is an attractive option for modern terrorists for several reasons.
1.It is cheaper than traditional terrorist methods.
2.Cyberterrorism is more anonymous than traditional terrorist methods.
3.The variety and number of targets are enormous.

4.Cyberterrorism can be conducted remotely, a feature that isespecially appealing to

terrorists.
5.Cyberterrorism has the potential to affect directly a larger number of people.
j. Banking/Credit card Related crimes:In the corporate world, Internet hackers are continually looking for opportunities to
compromise a companys security in order to gain access to confidential banking and
financial information.
Use of stolen card information or fake credit/debit cards are common.
Bank employee can grab money using programs to deduce small amount of money from all
customer accounts and adding it to own account also called as salami.
k. E-commerce/ Investment Frauds:Sales and Investment frauds. An offering that uses false or fraudulent claims to solicit
investments or loans, or that provides for the purchase, use, or trade of forged or counterfeit
securities.
Merchandise or services that were purchased or contracted by individuals online are never
delivered.
The fraud attributable to the misrepresentation of a product advertised for sale through an
Internet auction site or the non-delivery of products purchased through an Internet auction
site.
Investors are enticed to invest in this fraudulent scheme by the promises of abnormally high
profits.
l. Sale of illegal articles:This would include trade of narcotics, weapons and wildlife etc., by posting information on
websites, auction websites, and bulletin boards or simply by using email communication.

Research shows that number of people employed in this criminal area. Daily peoples
receiving so many emails with offer of banned or illegal products for sale.
m. Online gambling:There are millions of websites hosted on servers abroad, that offer online gambling. In fact, it
is believed that many of these websites are actually fronts for money laundering.
n. Defamation: Defamation can be understood as the intentional infringement of another person's right to his
good name.
Cyber Defamation occurs when defamation takes place with the help of computers and / or
the Internet. E.g. someone publishes defamatory matter about someone on a website or sends
e-mails containing defamatory information to all of that person's friends. Information posted
to a bulletin board can be accessed by anyone. This means that anyone can place
Cyber defamation is also called as Cyber smearing.
Cyber Stacking:Cyber stalking involves following a persons movements across the Internet by posting
messages (sometimes threatening) on the bulletin boards frequented by the victim, entering
the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc.
In general, the harasser intends to cause emotional distress and has no legitimate purpose to
his communications.
p. Pedophiles:Also there are persons who intentionally prey upon children. Specially with a teen they will
let the teen know that fully understand the feelings towards adult and in particular teen
parents.
They earns teens trust and gradually seduce them into sexual or indecent acts.

Pedophiles lure the children by distributing pornographic material, then they try to meet them
for sex or to take their nude photographs including their engagement in sexual positions.
q. Identity Theft :Identity theft is the fastest growing crime in countries like America.
Identity theft occurs when someone appropriates another's personal information without their
knowledge to commit theft or fraud.
Identity theft is a vehicle for perpetrating other types of fraud schemes.
r. Data diddling:Data diddling involves changing data prior or during input into a computer.
In other words, information is changed from the way it should be entered by a person typing
in the data, a virus that changes data, the programmer of the database or application, or
anyone else involved in the process of having information stored in a computer file.
It also include automatic changing the financial information for some time before processing
and then restoring original information.
s. Theft of Internet Hours:Unauthorized use of Internet hours paid for by another person.
By gaining access to an organisation's telephone switchboard (PBX) individuals or criminal
organizations can obtain access to dial-in/dial-out circuits and then make their own calls or
sell call time to third parties.
Additional forms of service theft include capturing 'calling card' details and on-selling calls
charged to the calling card account, and counterfeiting or illicit reprogramming of stored
value telephone cards.
t. Theft of computer system (Hardware):-

This type of offence involves the theft of a computer, some part(s) of a computer or a
peripheral attached to the computer.
u. Physically damaging a computer system:Physically damaging a computer or its peripheralseither by shock, fire or excess electric
supply etc.
v. Breach of Privacy and Confidentiality
Privacy
Privacy refers to the right of an individual/s to determine when, how and to what extent his or
her personal data will be shared with others.
Breach of privacy means unauthorized use or distribution or disclosure of personal
information like medical records, sexual preferences, financial status etc.
Confidentiality
It means non disclosure of information to unauthorized or unwanted persons.
In addition to Personal information some other type of information which useful for business
and leakage of such information to other persons may cause damage to business or person,
such information should be protected.
Generally for protecting secrecy of such information, parties while sharing information forms
an agreement about he procedure of handling of information and to not to disclose such
information to third parties or use it in such a way that it will be disclosed to third parties.
Many times party or their employees leak such valuable information for monitory gains and
causes breach of contract of confidentiality.
Special techniques such as Social Engineering are commonly used to obtain confidential
information
DATA SECURITY & CONFIDENTIALITY:

The 1998 Data Protection Act came into force on 1 March 2000. The purpose of the Act is to
protect the rights of individuals about whom data (information) is obtained, stored, processed
and disclosed.
What is data protection?
Data protection is essentially that area of the law that governs what may, and what may not,
be done with personal information. Such personal information may be in electronic (eg
stored on computer hard drive) or manual form (in a manual filing system).
The law
The Data Protection Act is mandatory and Law Centre (NI) is therefore required under law to
comply with the Act. This means that we must:

Notify the Information Commissioners (IC) Office

Adhere to the eight data protection principles below

Educate and train staff in the correct use of data

Consequences of breaching the Data Protection Act:

Staff can be criminally liable if they knowingly or recklessly disclose personal data in
breach of the Act.

A serious breach of data protection is also a disciplinary offence and will be dealt with
under the Law Centres disciplinary procedures. If a member of staff accesses another
employees personnel records without authority this constitutes a gross misconduct
offence and could lead to summary dismissal.

2. Policy Statement
Law Centre (NI) is committed to fulfilling its legal obligations within the provisions of the
Data Protection Act.
3. Notification
The Information Commissioner maintains a public register of data controllers who process
data (information) and who are required to notify their details to the Commissioner. Law

Centre (NI) has notified the Information Commissioner of the types of processing we
undertake since 1996 and have been placed on the register.
4. The Eight Data Protection principles
There are eight principles of data (information) processing with which the data controller
must ensure compliance. In this instance the Law Centre is the data controller.
Personal data shall be:
Principle 1: processed fairly and lawfully
Principle 2: obtained only for the purpose stated
Principle 3: adequate, relevant and not excessive
Principle 4: accurate and, where necessary, kept up-to-date
Principle 5: not be kept for longer than is necessary for that purpose
Principle 6: processed in accordance with the rights of data subjects under the Act
Principle 7: appropriate technical and organisational measures shall be taken against
unauthorised or unlawful processing

personal data and against accidental loss or

destruction of, or damage to, personal data

Principle 8: not transferred to countries without adequate protection
5. Employment: Code of Practice
Law Centre (NI) will adhere to the Employment Codes of Practice issued by the Information
Commissioner on:

Recruitment and selection

Employment records

Monitoring at work

The Administration Manager (Belfast) has the responsibility for the implementation of these
codes.
6. Compliance with data protection principles
Principle 1: Processed fairly and lawfully
This means that when Law Centre (NI) is collecting personal information from individuals:

that they are made aware of the uses of this information

individual consent has been obtained for any secondary uses of their personal
information

individuals are made aware of disclosures of their personal information to third

parties.

Information held by the organisation include details on the following:

clients

personnel

applicants for recruitment and selection

training participants

mailing lists

Sensitive personal information

The Data Protection Act introduces categories of sensitive personal information as to an
individuals:

Racial or ethnic origin

Political opinion

Religious beliefs or other beliefs of a similar nature

Trade union membership

Physical or mental health condition

Sexual life

Criminal or alleged offences

Criminal proceedings, convictions or disposal of proceedings

Law Centre (NI) processes sensitive data for the following purposes:

Advice/legal proceedings

Employment law obligations

Vital interests of the data subject

Legal rights

Insurance and pensions

Principle 2: Obtained only for the purpose stated

Personal information can only be obtained for one or more specified and lawful purposes and
should not be processed in any manner incompatible with those purposes which are described
in our Data Protection Register Entry, that is:

Staff administration

Administration of membership records

Fundraising

Realising the objectives of a charitable organization or voluntary body

Principle 3: Adequate, relevant and not excessive

Law Centre will only hold personal information which is adequate, relevant and not excessive
in relation to the purpose or purposes for which they are processed. This means that the
minimum of personal information should be held in order to fulfil its purpose. It is not
acceptable to hold information on the basis that it might be useful in the future without a view
of how it will be used. The Law Centre has a responsibility to continually monitor
compliance with this principle and to audit what information is kept.
Principle 4: Accurate and, where necessary, kept up-to-date
This principle places a duty on the Law Centre to take reasonable steps to ensure the accuracy
of the information processed on Law Centre information systems.
In collecting information the Law Centre needs to take all reasonable steps to make sure the
information is correct and the source of the information is reliable and to check this, if
necessary.

Similarly, third parties who supply personal information to the Law Centre should advise the
Law Centre of any corrections or amendments that need to be made.
The significance of the inaccuracy is important, obviously minor inaccuracies which have no
impact are of less importance but nevertheless the validity of the system and the training and
skills of staff inputting data should be checked.
Any inaccuracies should be corrected as soon as possible in order to limit the damage and
distress caused.
Any information should include the source and date and any alterations should be dated.
Principle 5: Not kept longer than is necessary
Law Centre (NI) will ensure that personal information is not retained any longer than is
necessary. This will require the Law Centre to undertake regular assessment and deletion.
We are legally obliged to keep client files and financial records for a period of six years
Principle 6: Processed in accordance with the rights of data subjects under the Act
Individuals have a general right of access to their own personal information, which is
processed by Law Centre (NI) in accordance with established Law Centre Access
procedures. They have the right:

To have a copy of the information

To stop processing where this is likely to cause distress

To have information rectified, blocked or erased

Claim compensation

Principle 7: Appropriate technical and organizational measures shall be taken against

unauthorized or unlawful processing of personal data and against accidental loss or
destruction of, or damage to, personal data
Law Centre (NI) has a duty to ensure that appropriate security measures are in place when
handling personal information. This applies to both information technology and manual files.
PRIVACY:

Privacy is one of the most complex legal issues facing e-commerce ventures today. Many
sites, such as the one in our case study, have little interest in actively profiling their users or
discovering personal information about them. However, these sites will often collect
significant amounts of personally identifiable data that may trigger liability risks.
Our task in this section is to assess the liability risk of a site's information collection
practices. We can break this task down into four main steps. First, we must determine what
information is collected by the site. Second, we must evaluate the potential liability for those
information collection practices. Third, we must choose whether to develop a privacy policy
to disclose those practices. And, fourth, we must verify our compliance with statutes or
regulations.
Information Collection
Many e-commerce sites directly ask users for personal information through forms. However,
in addition to such information, many sites also record data about their users' browsing
habits. This data can be matched with personal and demographic information to create a
profile of user preferences. Sites might use these profiles to target advertising or offer
customized services.
Automatic software logs and third-party cookie placements are two of the most easily
overlooked aspects of information collection. Many sites have no interest in actively profiling
their customers and might even insist to their counsel that they collect no personal
information. But most of these sites do collect information automatically through their server
software, and many allow third-party cookie placement.
COMMON TECHNOLOGIES
Cookies
Cookies collect information as a user surfs the web and feed the information back to a web
server. An online vendor's site will send cookies (which is most simply an identification
number) to a user's computer, where it is stored in a file on the user's hard drive and serves as
a digital identifier tag that notifies the vendor whenever that user re-enters the vendor's
website.

Cookies have two main uses. First, by allowing the site to "remember" the user, they can
customize a website by producing special content targeted to a specific user. Second, cookies
are used by network advertising agencies, such as DoubleClick, to target product
advertisements based on long-term profiles of users' buying and surfing habits.
Web bugs (or pixel tags)
Web bugs are images--usually invisible because they are only one pixel wide by one pixel
high--that are embedded in web pages and HTML-formatted emails. Advertising networks
often use web bugs on web pages to add information to personal profiles stored in cookies
and to collect statistics about how many hits the site gets.
Liability for Online Profiling
Although the FTC has recommended legislation to regulate online profiling (Website) (FTC,
2000), current American privacy law contains almost no general prohibitions against the
collection of consumer data. Today, most privacy initiatives target specific industries or types
of data, such as consumer credit reports, cable TV subscriber information, or personal
financial information. SeeProtected Categories for more information.
Electronic Communications Privacy Act (ECPA)
The ECPA, imposes civil and criminal penalties for the intentional interception, disclosure,
or use of electronic communications that affect interstate or foreign commerce. Electronic
communications are defined as any transfer of information by means of wire or
electromagnetic system. The major obstacle to using the ECPA to restrict online profiling is
that it exempts parties from liability if they obtain the prior consent from "users" or "parties
to communication".
Common-law Privacy Tort
The common law doctrine of personal privacy includes four grounds for tort liability
1. Unreasonable intrusion upon the seclusion of another

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person."
2. Unreasonable publicity given to another's private life
"One who gives publicity to a matter concerning the private life of another is subject to
liability to the other for the invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to
the public."
3. Publicity that unreasonably places another in a false light before the public
"One who gives publicity to a matter concerning another that places the other before the
public in a false light is subject to liability to the other for invasion of privacy, if (a) the false
light in which the other was placed would be highly offensive to a reasonable person, and (b)
the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be placed."
4. The appropriation of another's name or likeness
"One who appropriates to his own use or benefit the name or likeness of another is subject to
liability to the other for invasion of his privacy."
Developing A Privacy Policy
Under current law, companies are not legally obligated to post privacy policies. Indeed,
privacy policies may actually put companies at legal risk. The FTC has investigated and sued
companies for failure to comply with their stated policies. Moreover, once a partial disclosure
of information practice has been made, companies may even face an obligation to fully
disclose all privacy practices.
Privacy Audit
The first step is to conduct a privacy audit to decide what information will be collected, how
it will be used, and whether it will be shared with outside parties.

General information about privacy policies

Privacy policies should be drafted in plain and direct English. If the site targets
consumers in non-English-speaking nations, translations should be available.

Privacy policies should be customized. Sensitive or personally identifiable

information may require a higher degree of protection than aggregate or nonpersonally identifiable information.

Elements of a privacy policy

1. Notice
o What data is being collected? How? Are cookies or web bugs used?
o What is the primary use of the data? What are other secondary uses?
o What third parties will have access to the information?
o What security measures are in place to ensure the confidentiality and accuracy
of information?
o Are goods and services offered on the website made available to users only if
they provide personal information?
o Will the site owner disclose users' personal information if it believes in good
faith that the law requires it?
If third-party advertisers collect data on consumers through ads placed on the site, this
practice should be disclosed and consumers should be informed that the site itself does not
retain such information. Similarly, if data collection is outsourced to another company or a
third-party, this practice should be disclosed even if the data is intended for internal use only.
2. Choice: opt in or opt out?
Most companies have adopted the opt-out approach, which allows consumers to choose not to
allow their data to be shared with third parties or used for marketing purposes. Under opt-out,
the default choice is to allow use of personal data. Under opt-in, the default is to restrict use
of personal data.
3. Access and accuracy

Companies must decide whether they will allow users to access their data, correct
inaccuracies, or remove information they do not wish disclosed. Companies benefit from
accurate customer information, and user access can improve customer service by ensuring
that goods are properly shipped or customers receive information that most accurately
matches their interests. However, the consumer access to data may require additional
expenses, computing resources, and personnel. Online access may not always be feasible,
particularly for companies that store more sensitive data such as medical information. In such
cases, written mail might be more appropriate.
4. Data security and integrity

Are technical and physical safeguards in place to prevent unauthorized access,

especially for sensitive or personally identifiable information?

Are sufficiently robust encryption techniques used when confidential information is

stored in a file or travels across a network?

Are employees and managers trained appropriately?

Is data obtained from trusted sources? Is data up-to-date?

Where appropriate, are there measures to ensure that data is stripped of personally
identifying information?

5. Redress and enforcement

If consumers feel that their privacy has been violated, how should they contact the
company? What steps will the company take to resolve those issues?

What measures are in place to ensure compliance with the policy?

Is there an accessible and responsive dispute resolution process?

Are there ongoing assessment procedures? Are the results publicly disclosed?

6. Revision of policy

Is the privacy policy subject to change or otherwise conditional?

Posting a privacy policy

To provide notice to consumers, the privacy policy should be posted prominently. In the
matter of GeoCities, the FTC developed a list of requirements for adequate notice:

A clear and prominent hyperlink or button labeled "PRIVACY NOTICE" on the home
page, which directly links to the privacy policy;

Clear and prominent display of the elements of the policy with a button that must be
clicked on at the bottom of the screen to make it disappear; and

A clear and prominent hyperlink to the privacy policy at each location where personal
identifying information is collected, along with the following statement in bold
typeface: "NOTICE: We collect personal information on this site. To learn more about
how we use your information, click here."

CHILDREN'S ONLINE PRIVACY PROTECTION ACT (COPPA)

COPPA applies to two major categories of websites:

Commercial websites directed to children under 13

General audience websites with actual knowledge of personal data collected from
children under 13

If a site satisfies either of these descriptions, personal information cannot be collected from
children without parental consent. COPPA also imposes other restrictions requiring notice,
parental access to information and the option to change it, the ability to opt-out of future
information collection, and assurances of information security.
INTERNATIONAL ASPECTS OF COMPUTER AND ONLINE CRIME:
With the explosive growth of computer use around the globe and more people gaining access
to and using the World Wide Web, computer-based frauds and financial crimes are
increasingly likely to have international dimensions. In most cases the legal environment for
computer-based crimes is different in every county.

Further, identifying, locating and

extraditing suspects from around the globe present additional challenges. Finally, due to
differing privacy rights of individual in the various jurisdictions of the world makes securing
electronic evidence of computer-based frauds, financial crimes and other criminal acts very
difficult.
PRINCIPLES TO COMBAT HIGH-TECH CRIME

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.

There must be no safe havens for those who abuse information technologies.
Investigation and prosecution of international high-tech crimes must be coordinated
among all concerned States, regardless of where harm has occurred.
Law enforcement personnel must be trained and equipped to address high-tech
crimes.
Legal systems must protect the confidentiality, integrity, and availability of data and
systems from unauthorized impairment and ensure that serious abuse is penalized.
Legal systems should permit the preservation of and quick access to electronic data,
which are often critical to the successful investigation of crime.
Mutual assistance regimes must ensure the timely gathering and exchange of
evidence in cases involving international high-tech crime.
Transborder electronic access by law enforcement to publicly available (open source)
information does not require authorization from the State where the data resides.
Forensic standards for retrieving and authenticating electronic data for use in
criminal investigations and prosecutions must be developed and employed.
To the extent practicable, information and telecommunications systems should be
designed to help prevent and detect network abuse, and should also facilitate the
tracing of criminals and the collection of evidence.
Work in this area should be coordinated with the work of other relevant international
fora to ensure against duplication of efforts.

ACTION PLAN TO COMBAT HIGH-TECH CRIME

In support of the PRINCIPLES, we are directing our officials to:
1. Use our established network of knowledgeable personnel to ensure a timely, effective
response to transnational high-tech cases and designate a point-of-contact who is
available on a twenty-four hour basis.
2. Take appropriate steps to ensure that a sufficient number of trained and equipped law
enforcement personnel are allocated to the task of combating high-tech crime and
assisting law enforcement agencies of other States.
3. Review our legal systems to ensure that they appropriately criminalize abuses of
telecommunications and computer systems and promote the investigation of high-tech
crimes.
4. Consider issues raised by high-tech crimes, where relevant, when negotiating mutual
assistance agreements or arrangements.

5. Continue to examine and develop workable solutions regarding: the preservation of

evidence prior to the execution of a request for mutual assistance; transborder
searches; and computer searches of data where the location of that data is unknown.
6. Develop expedited procedures for obtaining traffic data from all communications
carriers in the chain of a communication and to study ways to expedite the passing of
this data internationally.
7. Work jointly with industry to ensure that new technologies facilitate our effort to
combat high-tech crime by preserving and collecting critical evidence.
8. Ensure that we can, in urgent and appropriate cases, accept and respond to mutual
assistance requests relating to high-tech crime by expedited but reliable means of
communications, including voice, fax, or e-mail, with written confirmation to follow
where required.
9. Encourage internationally-recognized standards-making bodies in the fields of
telecommunications and information technologies to continue providing the public
and private sectors with standards for reliable and secure telecommunications and
data processing technologies.
10. Develop and employ compatible forensic standards for retrieving and authenticating
electronic data for use in criminal investigations and prosecutions.

UNIT -1
INTELLECTUAL PROPERTIES
INTRODUCTION TO INTELLECTUAL PROPERTY LAW:
Intellectual property Right (IPR) is a term used for various legal entitlements which attach to
certain types of information, ideas, or other intangibles in their expressed form. The holder of
this legal entitlement is generally entitled to exercise various exclusive rights in relation to
the subject matter of the Intellectual Property. The term intellectual property reflects the idea
that this subject matter is the product of the mind or the intellect, and that Intellectual

Property rights may be protected at law in the same way as any other form of property.
Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition,
registration or enforcement of IP rights must be pursued or obtained separately in each
territory of interest. Intellectual property rights (IPR) can be defined as the rights given to
people over the creation of their minds. They usually give the creator an exclusive right over
the use of his/her creations for a certain period of time.
EVOLUTIONARY PAST:
The need for international protection of IP became evident when foreign exhibitors refused to
attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid
their ideas would be stolen.
1883 - Paris Convention for the Protection of Industrial Property, the first major international
treaty designed to help the people of one country obtain protection in other countries for their
intellectual creations in the form of industrial property rights. It entered into force in 1884
with 14 States, which set up an International Bureau to carry out administrative tasks, such as
organizing meetings of the member States.
In 1886 - the Berne Convention for the Protection of Literary and Artistic Works. The aim of
this Convention was to help nationals of its member States obtain international protection of
their right to control, and receive payment for, the use of their creative works such as: novels,
short stories, poems, plays; songs, operas, musicals, sonatas; and

drawings, paintings,

sculptures, architectural works.

Like the Paris Convention, the Berne Convention set up an International Bureau to carry out
administrative tasks.
In 1893, these two small bureaux united to form the United International Bureaux for the
Protection of Intellectual Property (BIRPI). Based in Berne, with a staff of 7, this small
organization was the predecessor of WIPO. Following the entry into force of the Convention
Establishing WIPO in 1967, WIPO became a specialized agency of the UN with a mandate to
administer IP matters in 1974.
INTELLECTUAL PROPERTY BASICS:
Types of intellectual property:
IPRs are fundamental to encouraging investment in research as without some form of
protection, investors and inventors would not be able to benefit from their creative efforts.
Owners of rights can prevent unauthorised use of their IP, to stop copying, to control
distribution, and to retain, license or sell their IP.

A number of common IPRs are outlined in the table below

Patents
A patent protects an invention. It gives the holder an exclusive
right to prevent others from selling, making and using the
patented invention for a certain period (typically 20 years from
Copyright

filing date)
Copyright protects the expression of literary or artistic work.
Protection arises automatically giving the holder the exclusive

Trademarks

right to control reproduction or adaptation.

A trademark is a distinctive sign which is used to distinguish the
products or services of one business from others. Trademarks are

Design

often closely linked to brands.

Protects the form of outward appearance or aesthetic style of an
object. Does not protect functionality or unseen (internal) design

Database

elements.
Database right prevents copying of substantial parts of a
database. The protection is not over the form of expression of
information but of the information itself, but in many other

Trade

aspects database right is similar to copyright.

A trade secret is a formula, practice, process, design or

secrets

compilation of information used by a business to obtain an

advantage over competitors. Trade secrets are by definition not
disclosed to the world at large.

AGENCIES RESPONSIBLE FOR INTELLECTUAL PROPERTY REGISTRATION:

1. Ministry of Commerce & Industry Department

of

Industrial

Policy

and

Promotion (DIPP)
The Department of Industrial Policy and Promotion under the Ministry of
Commerce & Industry is responsible for Intellectual Property Rights relating to
Patents, Designs, Trade Marks and Geographical Indication of Goods and oversees
the initiative relating to their promotion and protection. These include the outlining of
policy and its implementation through the Office of the Controller General of Patents,
Designs and Trade Marks. It promotes awareness regarding protection of the
Intellectual Property Rights inherent in industrial property in conjunction with the
World Intellectual Property Organization (WIPO) and apex industry organizations

apart from similar initiatives involving regional industry associations. It also provides
inputs on various issues relating to the Agreement on Trade Related Aspects of
Intellectual Properties (TRIPS) related to World Trade Organization (WTO) in
these fields. The Department undertakes technical cooperation programmes with the
World Intellectual Property Organization (WIPO), Geneva for the modernization and
up gradation of intellectual property administration relating to patents, designs,
trademarks and geographical indications and the organization of Human Resource
Development

and

awareness

generation

activities

in

the

country.

The major initiatives by the Department this year include modernization of IP

infrastructure and establishment of new integrated offices in Delhi, Kolkata, Chennai
and Mumbai. A programme costing Rs.153 crore has been implemented in the 10th
Five Year Plan. The programme focused on: Infrastructure development;
computerization; human resource development; training and awareness. Further
modernisation of IP Offices to provide additional human resources, higher level of
computerisation to support on-line processing, strengthening of data-base and novelty
search facilities, awareness generation activities, accession to international
treaties/conventions is being taken up in 11th Five Year Plan. The Department has
introduced e-filing facility for patent and trademark applications. Along with the
legislation, rules have also been amended to install a user-friendly system for
processing of IP applications. All rules and forms are available on the website:
www.ipindia.nic.in.
These initiatives along with the legislative reforms which were already in place have
resulted in increase in filing of patent applications from 4824 in the year 1999-2000 to
28,882 applications in the year 2006-2007.

The number of applications examined

has also gone up to 14,119 in 2006-07 against the figure of 2824 in the year 19992000. A total of 7359 patents have been granted in 2006-07.
2. Ministry of Human Resource Development (HRD) Department of Secondary &
Higher Education
Copyright Act
The Copyright Office under the Department of Secondary and Higher Education in
the Ministry of Human Resource Development has taken several measures to
strengthen the enforcement of copyright. These include setting up of Copyright
Enforcement Advisory Council, organization of seminars/workshops to create greater
awareness about copyright law among the enforcement personnel and the general
public, setting up of collective administration societies and creation of separate cells

in state police headquarters. The States and Union Territories of Assam, Goa, Gujarat,
Haryana, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra,
Meghalaya, Orissa, Rajasthan, Sikkim, Tamil Nadu, West Bengal, Andaman &
Nicobar Islands, Chandigarh, Dadra & Nagar Haveli and Daman & Diu have either
set up copyright enforcement cells or special cells in the Crime Branch to look after
copyright offence cases.
In order to facilitate proper coordination between the industry and the enforcement
agencies in the matter of enforcement of copyright laws, the Ministry requested the
State Governments to designate nodal officers. The States of Andhra Pradesh, Goa,
Haryana, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Rajasthan, Tripura, Uttar
Pradesh and West Bengal and the Union Territories of Chandigarh, Daman & Diu,
Lakshadweep and Pondicherry have designated nodal officers.
The Copyright Enforcement Advisory Council (CEAC) was set up on November 6,
1991 to review the progress of enforcement of the Copyright Act periodically and to
advise the government regarding measures for improving the enforcement of the Act.
The term of Copyright Enforcement Advisory Committee is 3 years. The CEAC is
reconstituted after periodically after expiry of the term. The current CEAC has been
reconstituted

on

22nd

February,

2005

for

period

of

years.

The Copyright (Amendment) Act, 1994 provides for setting up separate Copyright
Societies for different categories of works. So far four Copyright Societies have been
registered: one each for cinematograph films (Society for Copyright Regulation of
Indian Producers of Films and Television, SCRIPT), musical works (Indian
Performing Right Society Limited, IPRS) and sound recordings (Phonographic
Performance Limited, PPL) and the last one recently established is the Indian
Reprographic Rights Organization (IRRO) for books/literature/artistic photocopy
rights. These societies have been actively participating in generating awareness about
Copyright and IPR issues. They also have set up their own Anti Piracy Cells which
in collaboration with Police/Enforcement authorities have been actively engaged in
curbing piracy in musical/sound recording works. Department of Secondary and
Higher Education interacts frequently with these Copyright Societies and encourages
them

to

be proactive

in

the

field

of

Copyright

Administration.

The Department implements a Scheme of Intellectual Property Education, Research

and Public Outreach for effective implementation of the cause of promoting
awareness/research on Copyright/IPRs and WTO matters. Under the Scheme,

financial assistance is provided to UGC recognized universities, institutions affiliated

to those universities, educational institutions, Copyright Societies and Registered
voluntary organizations for creating general awareness by way of organizing seminars
and workshops on Copyright matters and carrying out activities on IPR related
matters.
The Copyright Act in India was enacted in the year 1957. It has been amended five
times since then, once each in the years 1982, 1984, 1992, 1994 and 1999. Though the
amendment in the year 1994 was quite comprehensive, only minor changes were
introduced through the amendment made in the year 1999 to bring the Act in
conformity with the TRIPS Agreement.
In order to keep pace with the developments at national and international level,
particularly with the rapid advance of technology, it has become necessary to consider
amendments to the Act once again. The Government of India has asked for
suggestions from various individuals, stakeholders, experts and industries in the
Copyright Act, to make it more effective and amendments to the Act are expected to
be finalized shortly.
3. Ministry of Agriculture Plant Variety and Farmers Rights Protection Act
(PVPFR)
In order to provide for the establishment of an effective system for protection of plant
varieties, the rights of farmers and plant breeders and to encourage the development
of new varieties of plants it has it has been considered necessary to recognize and
protect the rights of the farmers in respect of their contribution made at any time in
conserving, improving and making available plant genetic resources for the
development of the new plant varieties. Moreover to accelerate agricultural
development, it is necessary to protect plants breeders rights to stimulate investment
for research and development for the development of new plant varieties.
Such protection is likely to facilitate the growth of the seed industry which will ensure
the availability of high quality seeds and planting material to the farmers. India having
ratified the Agreement on Trade Related Aspects of the Intellectual Property Rights
has to make provision for giving effect to Agreement. To give effect to the aforesaid
objectives the Protection of Plant Varieties and Farmers Rights Act, 2001 has been
enacted in India. For the purposes of this Act, Protection of Plant Varieties and
Farmers Rights Authority has been established and is located at NASC Complex,
DPS Marg, Opp- Todapur, New Delhi. The Authority has received a total of 140
applications (uptill October 2007) for registration of new, extant and farmers varieties

for rice, wheat, millet, maize, sorghum, pigeon pea, black gram and green gram.
Details are available at www.plantauthority.in.
4. Ministry of Information Technology Semiconductor Integrated Circuits LayoutDesign Registry (SICLDR)
The Semiconductor Integrated Circuits Layout-Design Registry (SICLDR) for
receiving IPR applications and granting Registrations to qualifying cases has been
set up in the Department of Information Technology, Electronics Niketan, 6 CGO
Complex, Lodi Road New Delhi Frequently Asked Questions on Semiconductor
Integrated Circuits Layout-Design Act, 2000 are at www.mit.gov.in.
5. Ministry of Finance Central Board of Excise and Customs
The Indian Customs has issued a notification No 49/2007-Customs

dated 8-5-

2007 which prohibits import of goods infringing intellectual property rights of the
right holders under the Copyright Act, 1957, the Trade Marks Act, 1999, the
Patents Act, 1970, the Designs Act, 2000 and the Geographical Indications of Goods
(Registration and Protection) Act, 1999. Besides, the procedure for registration of a
notice with the Customs by right holders and the conditions for such registration, etc.
have been laid down in the Intellectual Property Rights (Imported Goods)
Enforcement Rules, 2007 notified under notification 47/2007-Customs (NT) dated the
8th May,2007 (hereinafter referred to as the said Rules). The said Rules lay down a
detailed procedure to be followed by the right holders or their authorized
representatives as also by the Customs for seeking suspension of release of suspect
imported goods.
It is pertinent to mention that while the mandatory obligations under Articles 51 to 60
of the TRIPS dealing with border measures are restricted to Copyright and Trade
Marks infringement only, the above Rules deal with Patents, Designs and
Geographical Indications violations as well, in conformity with the practice
prevailing in some other countries, notably EU countries. The notification states that
while it is not difficult for Customs officers to determine Copyright and Trade Marks
infringements at the border based on available data/inputs, it may not be so in the case
of the other three violations, unless the offences have already been established by a
judicial pronouncement in India and the Customs is called upon or required to merely
implement such order. In other words, extreme caution needs to be exercised at the
time of determination of infringement of these three intellectual property rights.
INFRINGEMENT:

Infringement is a legal term for an act that means breaking a law. IP rights are infringed
when a product, creation or invention protected by IP laws are exploited, copied or otherwise
used without having the proper authorisation, permission or allowance from the person who
owns those rights or their representative.
It can range from using technology protected by a patent to selling counterfeit
medicines/software or copying a film and making it available online.
All of these acts will constitute a civil infringement but some copyright and trade mark
infringements may also be a criminal offence such as the sale of counterfeits including
clothing.
1.3. How will action be taken against you
Trading standards are primarily responsible for enforcing the criminal IP laws, with support
from the police, and with investigative assistance from the IP rights owners. Private criminal
investigations and prosecutions may also be launched by the right owners in some cases.
Criminal IP offences may be taking place in your workplace in a variety of ways. These
include:

employees selling copies of protected works or supplying fake goods within the
working environment

company servers and equipment being used to make available (i.e. uploading)
infringing content to the internet with the knowledge of management

using the work intranet to offer for sale infringing products to colleagues

external visitors entering your premises, to sell counterfeit and pirated items

using unlicensed software on business computer systems with the knowledge of

management

How to avoid infringing

The Intellectual Property Office (IPO) can not advise you on whether your design would
infringe an existing design. If you are concerned that you may be infringing, you may wish to
obtain professional advice from a patent attorney, trade mark attorney or a solicitor.
If you are infringing you should be aware that the owner may be able to sue you. The legal
practitioner may also be able to advise you on agreeing, if it is possible, some form of terms
between you and the owner of the registered design (such as licensing the right to use the
design or buying it from them).
How to avoid infringement
It is important that you and your business take preventative steps to avoid infringing
the IP rights of others by seeking permission - which usually means obtaining a licence for
the activity.
REGULATORY:
Regulatory Framework
1. Copyright
Copyright protection is mainly regulated by the Copyright Law. It is the basic law for
copyright protection stipulating copyright and its neighboring rights. This Law will not be
applicable to:
(1) laws and regulations, resolutions, decisions and orders of State organs, other
documents of a legislative, administrative or judicial nature and their official translations;
(2) news on current affairs; and
(3) calendars, numerical tables and forms of general use, and formulas.
2. Patents, Utility Models and Industrial Design
Patents, Utility Models and Industrial Design are covered by the Patent Law. It is the core
legislation in the patent legal system. Patent rights will not be granted for any of the
following according to the Patent Law:

(1) scientific discoveries;

(2) rules and methods for intellectual activities;
(3) methods for the diagnosis or treatment of diseases;
(4) animal or plant varieties;
(5) substances obtained by means of nuclear transformation; and
(6) designs that are mainly used for marking the pattern, color or the combination of the
two, of prints.
3. Trademarks
The Trademark Law stipulates the basic protection of trademark, the definition of registered
trademark, the right holders, and the content of rights as well as penalty provisions.
It provides that "any sign that distinguishes the goods of a natural person, legal person, or
other organizations from those of others, including any word, device, letter, number, threedimensional sign, color combination, sound and combination thereof, may be registered as a
trademark."
4. Geographical Indications
The Provisions for the Protection of Products of Geographical Indication regulates and
protects Geographical Indications.
The products of geographical indication include:
(1) those grown or cultivated in the region; and
(2) those made, wholly or partially, of the raw materials from the region and produced or
processed with the particular techniques in the region.

5. Undisclosed information (Trade Secrets)

"Trade secrets" refers to any technology information or business operation information which
is unknown to the public, can bring about economic benefits to the obligee, has practical
utility and about which the obligee has adopted secret-keeping measures.
6. Plant Variety Protection
The new plant variety means a cultivated plant variety, or a developed one based on a
discovered wild plant, which is new, distinct, uniform and stable, and whose denomination is
adequately designated.
7. Domain Names
Domain Name refers to the character identification of hierarchical structure that identifies and
locates a computer on the Internet and corresponds to the IP address of this computer.