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What is Trade Mark?
A Trade Mark or a brand name is a word, device, logo, sound, smell or a combination thereof that is used to distinguish the goods and services of one manufacturer or service provider from another manufacturer or service provider.
Why Register your Trade Mark?
Registering your Trade Mark provides important statutory benefits that enhance any rights you may have acquired under common law through your use of the Trade Mark. A registered Trade Mark gives its proprietor the exclusive right to use the mark in relation to goods and services for which it is registered. A registered proprietor can enforce his rights against any person who uses an identical or deceptively similar mark in connection with the same or similar goods and services by instituting a suit for infringement and recovery of damages. A suit for infringement cannot be instituted for unregistered Trade Marks. The burden of proof on the Plaintiff is much lower in an infringement proceeding than in a passing off action.
Are Sound, Smells and Three Dimensional marks registrable?
Yes. Sound, smell or 3D representation is eligible for registration in India. For registering smell, the exact chemical combination/ formula along with a sample will have to be submitted to the Trade Mark Office. For registering a sound mark, the musical notes of the sound along with a sample of the sound recording will have to be given to the Trade Mark office.
Who can apply for registration and what are necessary elements of a Trade Mark application?
Any person claiming to be the proprietor of a Trade Mark can apply for registration by filing an application in the prescribed form. The application must contain the following elements:
1. The name, address and state of incorporation/nationality of the applicant;
2. A graphical representation of the mark in question along with any claim as to colour , 3D aspects of the mark, description of the mark, etc. if necessary;
3. Specification of the goods/services for which the mark is used/proposed to be used along with the class(es) under which those goods/services fall as per the classification of goods/services provided in the Act;
4. use claim or a statement that the mark is going to be used in future;
5. Address for service in India;
6. If it is a convention application then the details of the priority application must be provided.
The above said points are highlights of the necessary details which must be provided in the new Application.
What are the possible grounds for refusal to register a mark by the Trade Mark Office?
The Examiner primarily considers whether a mark is liable to be refused registration on absolute grounds and/or relative grounds for refusal as enumerated in Sections 9 and 11 respectively of the Trade Marks Act, 1999.
What is the duration for registration of the mark?
Once the registration certificate in the mark is generated it remains valid for a period of ten years from the date of original filing of the application for registration of the mark. A registration may be renewed for a further period of ten years. There is no absolute duration for the existence of a Trade Mark registration, and one may maintain a registration for as long as she/he wants by timely renewing it.
What are the safeguards to be taken by a proprietor of a registered Trade Mark to protect his rights?
The principles of Brand Protection form the basis of Trade Mark Law. Maintaining a Trade Marks Journal watch system is important is important for the purpose of awareness regarding any new offending mark that might have been applied for the purpose of registration.
The Patents and Trade Mark Office publishes on an average two journals in a month. It is especially advisable for companies and corporations to maintain a system of journal watch in order to safeguard their interests in their Trade Marks. Further, the party must oppose any mark which is similar or identical to the Trade Mark owned by them within the prescribed time helps in keeping a check on any offending Trade Mark from being registered.
What is Infringement?
Trade Mark infringement is a violation of the exclusive statutory rights obtained by the proprietor of a registered Trade Mark. Use of the registered Trade Mark without the authorization of the Trade Mark owner or any licensees (provided that such authorization was within the scope of the license) amounts to infringement. Infringement may also occur when one party, the "infringer", uses a Trade Mark which is identical or confusingly similar to the registered Trade Mark, in relation to products or services which are identical or similar to the products or services which the registration covers.
What are the remedies available against infringement?
The owner of the registered Trade Mark is entitled to a permanent injunction and may also seek damages.
Can a Trade Mark be assigned or licensed further.
Yes a Trade Mark can be assigned /licensed to another person.
What is a collective mark?
Collective mark means a Trade Mark distinguishing the goods and services of members of an association of persons (not being a partnership firm) from those of others. The proprietor of a collective mark is the association of such members. The use of the mark by the members is governed by the regulations framed by the association.
What is a Certification Trade Marks?
Certification marks are usually given for compliance with defined standards, but are not confined to any membership. The may be used by anyone who can certify that the products involved meet certain established standards. The most commonly known certification marks may include WOOLmark which certifies that the goods covered by it are made of 100% wool. An important requirement for certification marks is that the entity which applies for registration is considered to becompetent to certify' the products concerned. Certification marks may be used together with the individual Trade Mark of the producer of a given product. The label used as a certification mark evidences that the company's products meet the specific standards required for the use of the certification mark.
What is Copyright?
As per Section 14 of the Copyright Act, the Copyright means an exclusive right given to the creators or owners of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings to do or authorize the reproduction, communication to the public, adaptation and translation of the work for which the copyright has been vested in them.
What works may be copyrighted?
As per Section 13 of the Copyright Act, 1957, all original literary, dramatic, musical and artistic works, cinematograph films, sound recordings and software can be registered under the Act. A copyright is provided to an original work which is capable of being reproduced or communicated in a tangible medium of expression.
Is registration of work necessary to claim copyright?
The copyright in a work is acquired at the moment when the work comes into existence. However, the registration of a copyright is a proof of the first ownership in the work and serves as a prima facie evidence in a court of law in disputes relating to ownership of copyright. Copyright registration of original and creative works helps in so that they can be disseminated among the public without the fear of unauthorized copying or piracy.
Can titles and names be subject of a Copyright?
Titles, names, short word combinations, slogans, short phrases, methods, plots or factual information may or may not be granted copyright protection. Such categories of work are not ordinarily protected unless the work can be considered to be an original expression of the author.
Whether unpublished works are registered?
Yes, unpublished works can be registered. If a work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office. It is also open to the Applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office. Where the work is registered as unpublished and is subsequently published, the owner may apply for changes in the Register of Copyrights in the requisite form and with the prescribed fee.
What is the term of copyright protection in India?
The term of protection of copyright depends on the type of work.
In case of Literary, dramatic, musical and artistic work (other than photographs)– the copyright subsists during the lifetime of author and until sixty years from the beginning of the calendar year next following the year in which the author dies.
In case of Photographs, cinematograph films, sound recordings, works of government, public undertakings, international organizations, anonymous, pseudonymous and posthumous works – the copyright subsists until sixty years from the beginning of the calendar year next following the year in which the work is first published.
What is copyright infringement?
Copyright infringement is the violation of the exclusive right to use a work or any other right conferred under the Copyright Act, 1957. The following acts involve infringement of copyright:
Making infringing copies for sale or hire or letting them or selling them for hire
Distributing the infringing copies for the purpose of trade or to such an extent so as to prejudicially affect the interest of the owner of the copyright
Permitting any place for the performance of works in public where such performance constitutes infringement of copyright
Importing infringing copies of the work in India
Public exhibition of infringing copies by way of trade
What is copyright society?
A copyright society is a registered collective administration society. Such a society is formed by copyright owners. A copyright society can issue or grant licences in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act.
What is a design?
• ‘Design’ means only the features of shape, configuration, pattern, ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms.
• A design may be applied by any industrial process or means, whether manual, mechanical or chemical, separate or combined which in the finished article appeal to and are judged solely by the eye.
• A design however does not include any mode or principle of construction or anything which is in substance a mere mechanical device.
• A design does not include any trade mark, property mark or any artistic works which have been defined in the Trade Marks Act, 1999, Indian Penal Code, 1908 and the Copyright Act, 1957.
What are the essential requirements for registration a design?
• The design should be new and original
• The design should not have been previously published or used in any country before the date of application for registration
• The novelty of the design may reside in the application of a known shape or pattern
• The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article.
• The design should be applied or applicable to any article by any industrial process.
• The features of the design in the finished article must appeal to and judged by the eye.
• The design must be capable of being sold separately.
• The design should not comprise or contain any obscene or scandalous matter.
• For filing a design application, one would require to submit the following information/documents:
What are the requirements for filing an application for design registration?
• Name, address and nationality of the applicant
• Front, back, top, bottom, left side, right side and perspective views of the design (Photographs are preferred by the Design Office. Clear line drawings of the various views can be filed in case the product is not yet manufactured)
• Name of the article and International class number, if possible
• Nature of the article and its purpose of use
• Particulars of priority application (where applicable)
• Certified copy of Priority Document (when priority claimed) along with its English translation. Priority document can be filed after the filing of application but within three months’ time from the date of filing application subject to payment of late filing fees
• Power of Attorney/General Power of Attorney signed by the applicant
What is the procedure and time involved for design registration?
After filing the application, the Design office takes around 2-3 months’ time to send Examination Report. The time limit however to respond to such official action is within three months’ time from the date of official communication failing which the applicant shall be deemed to have withdrawn his application. After complying with the examiner’s requirement, the Design Office generally issues registration certificate within 4-5 months’ time. Ordinarily, an application for registration of a design should be disposed off within 6 months from the date of application and in any case where the procedure has not been completed within such period due to any neglect or default of the Applicant, the application shall be deemed to be abandoned.
Where is a Design Published?
After a design is registered, relevant view(s) of the article alongwith other information is made available in the official gazette, which is published on every Saturday.
What is the duration of Design?
The duration of the registration of a design is initially 10years from the date of registration. Where priority is claimed and has been allowed the duration is 10 years from the priority date. Period of registration may be extended by further period of 5 years. The registered design holder may make application for such extension as soon as the design is registered.
How to restore a lapsed design?
In case a design registration ceases to have effect due to failure to pay fees for extension an application for restoration may be filed within one year from the date of lapse.
What are the requirements for Private Limited Company Registration?
You need a minimum of two directors for a private limited company. The maximum members can be 200. If you are the sole owner, you can register as a One Person Company.
What are the benefits of Private limited company?
It provides creditability to business in the eyes of financial institutions, suppliers and potential clients. It makes easier for companies to get loans at favorable terms from banks or convincing potential clients while entering into deals.
What are the responsibilities of a director?
The director has been entrusted with the responsibility of managing the company in the best efficient manner. The responsibility of a director depends upon the kind of directorship he holds in the company. For instance, an executive director or a managing director has greater responsibility than a non-executive director who might hold the directorship as an expert or consultant. A director is liable for misconduct or fraud or if found guilty of default.
Is it allowed to change registered office of the company after registration?
Yes, a company can change its registered office any time after following specified procedure. The changed address can be situated within the same state or in a different state from the state in which it was originally registered.
What is the Tentative Time-period Lapsed in the Incorporation of a Private Limited Company in India?
Based on the requirement of obtaining diverse requisite documents, authenticity of the documents submitted by the directors/shareholders, the speed of processing and filing forms & documents, and the briskness of the proceeding performed by the concerned government authorities, the approximate time taken by the entire procedure for incorporation may range from one to Two Weeks.
What is a Public Limited Company?The Public Limited Company is a wider form of the limited company, which has no restriction on the maximum number of shareholders, listing its shares in the stock market, transfer of shares, and raising funds from public and accepting public deposits; all of these activities cannot be done by a private limited company. Again, unlike a private limited company, a public limited company is governed and managed by a Board of Directors constituted as per the unanimous consent of the shareholders. However, a public limited company has much more compliance burden, as compared to that necessary for a private limited company.
What are the Primary Requirements for setting up a Public Limited Company in India?
For setting up a public limited company anywhere in India, there are required a minimum of Seven Shareholders and Three Directors; the directors can also be shareholders. The requirement of the minimum paid-up share capital worth INR 5 Lac has been removed by the Companies (Amendment) Act, 2015.
What is the Liabilities of Public Limited Company?
As a public limited company deals with public money, it has to make rather heavy compliances strictly, which are bulkier than those performed by a private limited company. Apart from the regular compliances related with income tax, there are much periodic and annual compliance to be made by a public limited company with ROC/MCA, SEBI, RBI, etc. These regulatory liabilities are in addition to securing and promoting steadily the profits and welfare of all shareholders of the public limited company.
What is LLP?Limited Liability Partnership is a corporate entity registered under Limited Liability Partnership Act, 2008. It is a form of partnership firm that enjoys limited liability. It is a hybrid form of a partnership that includes the features of a company. Compliances for a company are applicable to LLP.
Can a partnership firm convert itself into LLP?
An existing partnership firm can be converted into LLP by complying with the Provisions of clause 58 and Schedule II of the LLP Act. Form 17 needs to be filed along with Form 2 for such conversion and incorporation of LLP.
Is the conversion of LLP into a Private Limited Company possible?
LLP Act, 2008 and Companies Act, 2013, both do not have any provision regarding the conversion of an LLP into a Private Limited Company. You can only incorporate a new private limited company with the same name for which a no objection certificate is required by the LLP.
How many partners can form an LLP? Is there any maximum limit?
As per LLP Act, 2008 a minimum of two partners can incorporate an LLP. There is no maximum limit for the partners.
What are the rights and duties of a designated partner?
The rights and duties of a designated partner are governed by LLP Agreement executed between them as per the Act.
Is it mandatory that all the designated partners have to be the partners of the LLP?
As per the general rule, every designated partner of an LLP must also be the partner of an LLP. However, there are some exceptions to the general rule:
• If the partners of the LLP are a body corporate then in such case the nominees of the bodies corporate can act as a designated partner.
• If the LLP agreement specifies certain persons to be a designated partners in an LLP without being a partner in the same LLP than such people can act as a designated partner.
Who can form One Person Company?An OPC can be formed only by a natural person who is an Indian citizen and stayed in India for a minimum of 182 days in the immediately previous calendar year.
What is the minimum number of Directors required to form an OPC?
Minimum one Director is required to incorporate an OPC. Further, the sole member can also become the first director of the Company till the member appoints any other director.
What is the minimum capital requirement to start an OPC?
As per the Companies Act, 2013 and Company (Incorporation) Rules these is no minimum capital requirement to incorporate an OPC in India. You can even start an OPC with a capital contribution as low as Rs. 2. However, the maximum capital allowed is Rs. 50 lakh.
Who can be a Nominee?
As per Rule 3 of Companies (Incorporation) Rules, 2014 only a natural person who has attained majority and is an Indian citizen and resident of India in the previous calendar year can become a Nominee Director in an OPC.
When does a One Person Company require converting itself mandatorily?
A One Person Company is required to be converted into a Private Limited or Public Limited company when it crosses the threshold limit of paid-up capital of Rs. 50 Lakhs or Average Turnover of Rs. 2 Crores in any year.
What are the disadvantages of an OPC?
Disadvantages of forming an OPC are-
• Ineligible to carry Non- Financial Business Activities,
• Can’t convert voluntarily in any form of the company before two years of incorporation and prohibited to convert itself at any time into section 8 Company.
• Restrictions of a Private Limited Company apply to OPC also.
• It is more suitable for small entrepreneurs due to limited share capital structure.
Is it necessary to have 2 directors for Section 8 Company Registration?
Yes, you need a minimum of two directors for a Section 8 company registration.
Is it necessary to have a charitable object to register a Section 8 Company?
Yes, it is necessary to have a non-profit motive to incorporate a Section 8 company.
What is the life span of the Section 8 Company?
The life span of the company is not dependent on or related to the life of any particular person(s) or individual(s). It could go on indefinitely until it accomplishes its objective, merges with another such company, or goes bankrupt.
What are the requirements for registration of a Nidhi Company? A Nidhi company is registered as a Public Limited Company. Hence, the requirements for incorporation of a Nidhi company are a minimum of three Directors and Seven Shareholders. However, the MOA of a Nidhi company must state that the primary objective of the proposed company is to nurture and promote a habit of thriftiness and savings among its members, and accept deposits from or lend loans only to its members, for the mutual benefits of them. Who can invest in a Nidhi Company? Only shareholders/Members of aNidhiCompany, who have a membership ID, can invest in the scheme. To be a member, you must be 18-years and above as per age proof and must be a citizen of India. How many branches can a Nidhi Company open? A Nidhi Company can open 3 branches in its district only if it has earned profits after tax consistently during the preceding three financial years. For any additional branch, Nidhi will be first applying for approval from the Regional Director. .
What is Income Tax?
Income tax is tax levied on the income of a person by the Government of India as per the provisions contained in the Income Tax Act 1961. It is levied on income earned during the year starting from 1 April and ending 31st March.
What are previous Year and Assessment Year?
Previous Year is the financial year in which the income is earned. The income earned during this previous year is charged to tax in Assessment Year, which is the year after previous year. For example for the Income earned in Financial Year (Previous Year) 2016-2017 the assessment of tax is carried out in 2017-2018. Thus 2017-2018 is the Assessment Year.
Who is liable to pay Income Tax?
Every person is liable to pay tax in India if his total income is more than the income notified by the government in the slab rates. Here, the definition of person includes :
• An Individual
• A Hindu Undivided Family (HUF)
• A Company
• A Firm
• An Association of Persons (AOP) or a Body of Individuals (BOI)
• A Local Authority
• Artificial Juridical Persons
On what amount is Income Tax calculated?
For calculating income tax, notified slab rates are applied to the taxable income of a person earned during previous year. Taxable income is to be calculated as per the provisions and rules contained in the Income Tax Act, 1961. One has to calculate income under various heads of Income and net them after deducting deductions available under Chapter VI-A to get Net Income Chargeable to Tax.
What is Income Tax Return?
An Income Tax Return is a statement of income earned to calculate tax liability and payment or refund of taxes. Thus, the purpose of filing the return is to report our income and taxes paid thereon to the government.
Who can file IT return in ITR-1?
You can file return in ITR-1 (Sahaj) if you are an individualhaving:
• Income from other sources
• Salary
• Pension
• Income from up to one house.
• Agriculture Income less than Rs. 5,000.
• Total Income is less than Rs. 50 lakh.
Who can file return in ITR-2?
You can file return in ITR-2 if you are an Individual or HUF having:
• Income from items in ITR 1 which is more than Rs. 50 lakh.
• Income from capital gains.
• Foreign Income.
• Agricultural Income more than Rs. 5,000.
• Income from Business or Profession under a Partnership firm.
Who can file return in ITR-3?
You can file return in ITR-3 if you are an Individual or HUF having:
Income from items mentioned in ITR 2.
Income from Business or Profession under a Proprietorship Firm.
Who can file return in ITR-4?
You can file return in ITR-4 (Sugam) if you are an Individual or HUF having:
• Section 44AD – Business (Deemed Profit-8% or 6%)
• Section 44ADA –Professional (Deemed Profit-50%)
• Section 44AE – Transporters (Deemed Profit- Rs. 7500/vehicle per month)
Who can file return in ITR-4?
You can file return in ITR-5 if you are an Individual or HUF having:
• Firm
• Limited Liability Partnerships
• Association of Person
• Body of Individuals
• Artificial Juridical Persons
• Local Authority or Co-operative Society
What are the benefits of filing income tax return (ITR)?
Filing of ITR is basically a legal obligation which everyone who falls under is required to comply with. But, it also helps in getting bank loans, visas, for claiming refund against excess income tax paid, as a proof of income certificate and most importantly for tax payer’s self-satisfaction.
Is having PAN (Permanent Account No.) mandatory for income tax return filing?
Yes, a person must have PAN in order to proceed for filing of income tax return.
How do I renew my FSSAI registration?
FSSAI license can be renewed 30 days before the expiry of original license. It typically takes 30-40 for renewal of the license. The government fee is same for renewal as for new license issue.
Is it mandatory for 100% export units to get FSSAI licensing?
Yes, FSSAI license is mandatory for both export and import of food products. You will need to apply for FSSAI Central License for your export unit.
What is a Digital Signature?
It is a physical signature in an electronic format.
Who can obtain a Digital Signature?
A Digital Signature can be obtained by any person (Indian Citizen and Foreign Nationals) and any type of business entity (Partnership, LLP, Company, Trust and others).
How long does it take to obtain a Digital Signature?
A Digital signature can be obtained within 1-3 working days from date of submitting the application along with the required Documents.
Is physical verification required before issuing Digital Signatures?
No, physical verification is not required for issuing a Digital Signature.
What are the documents required to register DSC?
To obtain a Digital Signature, application form for the Digital Signature must be submitted along with a self-attested copy of the applicant’s identity proof and address proof and also along with photograph of applicant.
Who must obtain Import Export Code Registration?
Any person who intends to import or export goods and services from or to India must obtain Import export Code, one can apply IE code online and get their IE code certificate or IE code license online.
Is there any tax levied onImport Export Code?
No, tax is not levied on Import Export Code. However, custom duty maybe levied. Custom duty depends to the category of the products imported or exported. This can be found at the custom departments’ website.
What is the time taken to acquireImport Export Code?
After submitting all the requisite documents IEC is typically allotted by DGFT in 5-10 days. It is not necessary to show proof of any import or export to obtain IE Code.
Who is not required to obtain Import Export Code?
You will not need an IEC code under the following cases:
• Person exporting or importing goods for personal use and not for activities related to business.
• Persons exporting or importing goods to/from Nepal or Myanmar through Indo-Myanmar border areas, a value of which does not exceed Rs.25,000/- in a single assignment.
• Ministries or departments of central government do not require obtaining IEC.
What is ISO?
ISO certification has been largely considered as a quality management tool which provides a kind of identity to company’s quality management system. It standardizes how businesses and organizations involved in commerce and industry manage information and processes. It simply means that organization has met certain requirements.
What is ISO 9000?
It is a kind of ISO certificate which represents a quality of the product on an international basis and also ensures that the company meets up with all the required quality measures. ISO 9000 family of standards consist of basically three core of standards:
• ISO 9001 – Quality Management Systems – Requirements
• ISO 9000 – Fundamentals and Vocabulary
• ISO 9004 – Quality Management Systems – Guidelines for performance improvements.
What is the role BIS (Bureau of Indian Standards) in ISO 9000?
BIS stands for Body of India and is the founder of ISO. For the advancement of ISO 9000 standards the technical and its sub-committees are responsible. BIS officers who are included in Quality and industry experts’ panel are nominated by BIS. They are the one who enthusiastically participates in the gatherings offered by Technical Committee ISO/TC 176 and its Sub-committees.
What is ISO 9004 certification?
To improve the quality of a product, organizations have implemented some rules and regulations as per the requirements of IS/ISO 9001. The standard IS/ISO 9004 has an important element of `self- assessment’ and this standard are not agreeable to certification.
How to implement the requirements of ISO 9001 certification in my business?
As a minimum, you should familiarize yourself not only with the requirements of IS/ISO 9001, but vocabularies given in IS/ISO 9000 and direction standard IS/ISO 9004 will help you to clearly understand your association’s activities and processes and appropriately interpret the requirements of the standards. Implement the requirements in the different activities and processes adding value to these processes and activities. For training programs on general awareness on the requirements, our National Institute of Training for Standardization (NITS) may be reached.
What are the standards in ISO 9000 family of standards?
The other standards of ISO 9000 family have also been adopted by BIS. The new IS/ISO 9000 family involves three main standards:
• ISO 9000 Fundamentals and vocabulary
• ISO 9001 Quality management system requirements
• ISO 9004 Managing for sustained success of organization
What is ISO Audit?
ISO audit is the basic tool to check the quality process system to ensure that organization is following the requirements as prescribed. Once you take an ISO certification, ISO audit needs to be done on an annual basis.
