By SHAIWAL SATYARTHI
Intellectual property law rests on an elegant model that divides the field into seven principal sub-fields – copyright, patent, trademark, design, geographical indication, breeders and farmers right, and semiconductor and integrated circuit – each protecting a distinct subject matter and promoting a unique social goal. India has enacted seven laws related to aforesaid sub-fields providing a range of distinct legal platforms for protection of fruits of human creativity.
An appropriate combination of laws needs to be exploited to achieve optimal protection of a specific intellectual asset. For example a patent can protect an invention related to the "ball-point" in a "ball-point pen". The shape of a pen can be protected by a design registration, the name of the pen can be a trademark, the style in which certain words are inscribed on the pen or the literature accompanying it could be protected by copyright. Similarly, the internals of a restaurant can be registered as a service mark, its name as a trademark that would help to differentiate it from other restaurants involved in similar service.
Under the copyright law, a composition of lines or colours made by an artist and as applied to an article in the shape of a label or a carton can perform the role of a "trade mark" as the same is capable of being used in relation to goods and it is for this reason under Section 45 of the Copyright Act, the Registrar of Trade Marks in empowered to issue a search report in respect of such artistic works as are used as a trade mark as a pre-requisite for Copyright registration. The Trade Marks Rules 2002 in Rule 24(3) provides that any person may request the Registrar in Form 60 (TM-60) to cause a search to be made and for issue of certificate under section 1 of section 45 of Copyright Act, 1957 to the effect that no trade mark identical with or deceptively similar to such artistic work, as sought to be registered as copyright under the Copyright Act, 1957 has been registered as a trade mark under the Trade Marks Act, 1999 in the name of or that no application has been made under that Act for such re-registration by any person other than the applicant. Similarly Rule 16 of The Copyright Rules, 1958 says that “every application for registration of copyright shall be made in accordance with Form IV ” and column 13A of Statement of Particulars of Form IV, which is given in first schedule of The Copyright Rules,1958, says that “if the work is an ‘artistic work’ which is used or is capable of being used in relation to any goods, the application shall include a certificate from the Registrar of the Trade Marks in terms of the proviso to sub-section(1) of section 45 of the Copyright Act,1957 .This would mean that an artistic composition of lines or colours as applied to an article can perform the role of a "trade mark".
The practice is to seek relief for violation of trade marks under the copyright law, simultaneously with infringement and passing off action under trade mark law. Protection of trade mark by copyright law is very important because vesting of copyright in a person is not concerned with any specific goods or services. In addition, the plaintiff can invoke the jurisdiction of local courts by joining causes under trade mark and copyright laws. The copyright has the capacity to protect trade mark labels on all types of goods or services, whether same, similar or different, without the mark being well-known mark or enjoying large reputation in the market. Thus, the Copyright law gives impetus to every trade mark becoming absolute for all goods or services when used on anyone of them. Copyright protection is time limited, whereas protection of any copyright material as a trade mark introduces perpetuity under the Trade Mark Law.
Copyright in a Trade Mark
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