THE DIWAN SCOOP THE OFFICIAL NEWSLETTER ISSUED BY DIWAN ADVOCATES ISSUE NO. 4 JULY 2017 Understanding Geographical Indications BY SOMYA MISHRA, ADVOCATE, DIWAN ADVOCATES “Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing.” -Ronald Reagan Article 22.1 of the TRIPS agreement explains Geographical Indications as follows: “GIs are for the purpose of this agreement, indications which identify a good as originating in the territory of a member, or a region or locality in that territory, when a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” As a party to the TRIPS Agreement, India is required to protect GI and hence in order to fulfill that obligation, the Geographical Indications of Goods (Registration and Protection) Act, 1999 was enacted. Section 1(3)(e) of the THE GEOGRAPHJCAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999 defines “geographical indication” as: “An indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, IN THIS ISSUE: Understanding Geographical Indications- 1 From the Diary of a Lawyer- 2 Enigma of Smell Marks- 2 Conversion of Sole Proprietorship to Private Ltd. Company- 3 Legality of “Open Data” in India- 3 where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.” In this present age of high technology advancement, protection through Geographical Indication is the only method which manages to stand at par with the expectations of various artisans that their manual labour will be appreciated with protection and encouragement. Prior to the introduction of Geographical Indications, protection could have been allotted as per the following three alternative ways for preventing the misuse of Geographical Indications: (i) Under the consumer protection laws; (ii) Through passing off action in courts; (iii) Through certification trademarks. However, the above could grant protection in other dimension but for the indigenous knowledge. Apart from protection, identity was also a requirement for the makers of such products. Passing off action could not give a relief as satisfactory as infringement action could have given. In order to get a relief for infringement, a legal recognition is a mandate.
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THE DIWAN SCOOPT H E O F F I C I A L N E W S L E T T E R I S S U E D B Y
D I W A N A D V O C A T E S
I S S U E N O . 4J U L Y 2 0 1 7
Understanding Geographical Indications B Y S O M Y A M I S H R A , A D V O C A T E , D I W A N A D V O C A T E S
“Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing.” -Ronald Reagan
Article 22.1 of the TRIPS agreement explains Geographical Indications as follows: “GIs are for the purpose of this agreement, indications which identify a good as originating in the territory of a member, or a region or locality in that territory, when a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” As a party to the TRIPS Agreement, India is required to protect GI and hence in order to fulfill that obligation, the Geographical Indications of Goods (Registration and Protection) Act, 1999 was enacted.Section 1(3)(e) of the THE GEOGRAPHJCAL INDICATIONS OF GOODS (REGISTRATION AND PROTECTION) ACT, 1999 defines “geographical indication” as: “An indication which identifies such goods as agricultural goods, natural goods or manufacturedgoods as originating, or manufactured in the territory of a country, or a region or locality in that territory,
IN THIS ISSUE:
Understanding
Geographical Indications-
1
From the Diary of a
Lawyer- 2
Enigma of Smell Marks- 2
Conversion of Sole
Proprietorship to Private
Ltd. Company- 3
Legality of “Open Data” in
India- 3
where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.” In this present age of high technology advancement, protection through Geographical Indication is the only method which manages to stand at par with the expectations of various artisans that their manual labour will be appreciated with protection and encouragement. Prior to the introduction of Geographical Indications, protection could have been allotted as per the following three alternative ways for preventing the misuse of Geographical Indications: (i) Under the consumer protection laws; (ii) Through passing off action in courts; (iii) Through certification trademarks. However, the above could grant protection in other dimension but for the indigenous knowledge. Apart from protection, identity was also a requirement for the makers of such products. Passing off action could not give a relief as satisfactory as infringement action could have given. In order to get a relief for infringement, a legal recognition is a mandate.
A lawyer doesn't rise just with the degree; a lawyer rises with the knowledge of law. Law is a vast subject where learning never tends to cease. When a lawyer prepares a case for arguments, he should not only be thorough withthe facts of the case, but also should look at the law as it exists on the date when the matter is coming up for argument. It is very essential for a lawyer to stay updated with the prevalent legal position at all times in order toavoid the common mistake of assuming certain things.
Being a lawyer, one should never rely upon memory as far as legal procedure and relevant judicial issues relevant to a case are concerned. One should read the legal provisions every time he prepares for a case even if he has already read the same provision hundred times previously. Law is just like a mystery novel; the more pages you turn, the better you brush your memories while moving closer towards unleashing the unexpected turn of events in the subject.
Visual and auditory are the two commonly used senses which make us capable of identifying the graphical representation of trademarks created for distinguishing the goods or services of one person from those of others. Apart from these traditional form of trademark, there also exist non-traditional marks - wherein our senses to smell and taste are used. However, such non-traditional form of marks must be visually represented by the applicant and most show it is distinctive from the product itself. But story for registering smell or olfactory mark is the most difficult conundrum for the Trademark Registries all over the world and for the applicant. The biggest impediment is how one represents a smell in a visual way. The answer to this being subjective in nature has different interpretation such as the representation of criminal formula will represent the substance , therefore description of smell is required, which should be so precise that that particular smell would not beconfused with any other. Moreover, the other pertinent condition is that the smell must not result from the nature of the good itself.This further becomes evident in the light of the fact that under Rule 25 (12)(b) of the Trademark Rules, 2002, an application for registration of a trademark mandates its graphical depiction, Rule 28 and 30 requiring that it be represented on paper, in a durable form. The above was about Indian Jurisdiction, Now Lets’ look at the practice prevailing in major Trademark Registries USA For olfactory marks to be recognized and granted, the Trademark Manual of Examining Rules provides for the registration of non-visual trademarks incapable of being graphically represented, however, it excludes instances where the smell is quintessential to the product EU Currently, there is not a single Community scent mark on the register today, as the most commonly quoted mark “the smell of fresh cut grass” lapsed in December 2006 as a result of non- renewal. CONCLUSION The smell or olfactory mark defies the two basic conditions for registration of trademark – distinctiveness and descriptiveness. it remains important to recognize that only in the presence of a medium that adequately describes the nature of smell/scent to be trademarked, can the very essence of the trademark – its distinctiveness – so be captured. Only when a graphical representation giving a clear, precise and objective image of the mark is made, the mark gets registered. However, the subjective nature of interpretation of smell makes it less likely for them to achieve the status of trademarks, thus this peculiarity always keep them open for discussion.
From the Diary of a Lawyer B Y S A L R M . K H A N , D I W A N A D V O C A T E S
- SALAR M. KHAN, ADVOCATE
It is essential for a lawyer to stay updated with the prevalent legal position at all times.
T H E D I W A N S C O O P P . 0 2J U L Y 2 0 1 7
Enigma of Smell Marks B Y S H R U T I D H I N G R A , A S S O C I A T E ( D I W A N A D V O C A T E S )
Salar M. Khan, Advocate, Diwan Advocates
Many entrepreneurs start their business as a sole
proprietorship due to the low compliance requirements.
As the business and revenue grow there arises a need to
separate the bank accounts and tax filing of the sole
proprietor and that of the business. In order to achieve
this separation, a possible solution is to convert the sole
proprietorship into private limited company.
Following is the procedure for converting sole
proprietorship business into private limited company:
1-Obtaining digital signature certificate – digital
signature certificate is required to be obtained by any
one of the director of the company.
2-Uploading form with registrar ; Application is
required to be made in form INC-29. E-form INC-29
deals with the one single integrated application for
reservation of name, incorporation of a new company
and /or application for allotment DIN. This e-form is
accompanied by supporting documents including details
of directors and subscribers, MOA and AOA etc. are to
be drafted once the e-form is processed. When the
above process is found complete, company would be
registered. Also DINs gets issued to the proposed
directors who do not have a valid DIN. Maximum 3
directors are allowed for using this integrated form for
allotment of DIN while incorporating a company.
3-Further attachment to this conversion would be
following:-
(i) Affidavit by the sole proprietor
(ii) Statement of assets and liabilities as on date by
chartered accountant if the proprietorship is doing
business from long.
(iii) Income tax returns acknowledgement
(iv) PAN card of the sole proprietor.
Data available for the public access and public use is
termed as “Open Data”. Data is one of the most important
aspect of this world for the use of the people for both
commercial and non-commercial purposes. Thus, for the
secure use of the data and to prevent its
misinterpretation or misuse, it’s necessary that it should
be licensed to ensure that all users have the same and
permanent right to use the data. Hence, for the same
purpose Indian government has initiated the notification
of the National Data Sharing and Accessibility Policy on
17th March, 2012.
Under the National Data Sharing and Accessibility Policy,
all users are provided with a worldwide, royalty-free,
non-exclusive license to use, adapt, publish (either in
original, or in adapted and/or derivative forms), translate,
display, add value, and create derivative works (including
products and services), for all lawful commercial and
non-commercial purposes, and for the duration of
existence of such rights over the data or information. But
this policy has exempted some kind of data which
includes personal information, military insignia, name,
crests, logos and other official symbols of the data
provider(s) etc. Thus, this license is governed by Indian
law.
Conversion of Sole Proprietorship to Private Ltd. Company
B Y S U N I T A J O D H A A N D S O N I L Y A D A V , S T U D E N T ( L A W C E N T R E - I ,
D E L H I U N I V E R S I T Y )
T H E D I W A N S C O O P P . 0 3J U L Y 2 0 1 7
Legality of “Open Data” in India B Y C H E R R Y G U P T A , S T U D E N T ( L A W C O L L E G E , D E H R A D U N )
