What are intellectual property rights in indian law? explain with examples

Intellectual Property Rights (IPR) in India refer to the legal rights granted to individuals or entities over their creations or inventions. These rights allow the creators or owners to control the use of their intellectual property for a certain period, encouraging innovation and creativity by providing legal protection and economic incentives. The main types of IPR in India include:

1. Copyright

Definition: Copyright protects the original works of authorship, such as literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings.

Governing Law: The Copyright Act, 1957.

Examples:

• A novel written by an author.
• A song composed by a musician.
• A painting created by an artist.
• A film produced by a filmmaker.

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To what extent disputes relating to intellectual property rights are arbitrable?

We now deal with the first aspect of the matter, i.e., as to whether IPR disputes are arbitrable. This takes us to the question as to whether it is in the realm of a right in rem and therefore, not arbitrable. In this context, a clear distinction has been made inter-alia in the line of authorities referred to supra between a right in rem and an action in personam. A judgment in personam refers to a judgment against a person as distinguishable from a judgment against a thing, right or status. A judgment in rem refers to a judgment against a thing, right or status or condition of property which operates directly on the property itself. To make this illustrative, it can be said that a patent license issue may be arbitrable, but validity of the underlying patent may not be arbitrable. This has been alluded to by the Hon'ble Supreme Court of India in Booz Allen supra and the learned Single Judge has also noted this aspect of the matter as is evident from a reading of the order which has been called in question before us.

5(q) We are aware that after Booz Allen and Ayyasamy supra, there is one more judgment of the Supreme Court, which dealt with the question as to whether there can be an arbitration clause in a trust deed and as to whether a dispute pertaining to a trust or as amongst trustees of a public trust is arbitrable and the same was answered in the negative. This judgment is Vimal Kishor Shah Vs. Jayesh Dinesh Shah [(2016) 8 SCC 788] decided on 17.8.2016.

5(r) While Booz Allen dealt with disputes relating to rights in rem qua arbitration / arbitrability, Ayyasamy dealt with fraud qua arbitration / arbitrability. The third judgment dealt with a dispute touching upon a trust qua arbitration /arbitrability. Though the last of the three judgments, i.e., Vimal Kishor Shah was not cited before us, the same stand noticed by us.

5(s) Pivotal submission of Lifestyle on this aspect of the matter is that the aforesaid judgment of the Hon'ble Supreme Court of India has not considered or excluded IPR disputes from the scope of arbitrability. For absolute clarity on this aspect of the matter, learned counsel for Lifestyle referred to paragraph 14 of Ayyasamy case and said that the list of disputes which may not be arbitrable as adumbrated therein is not the ratio or conclusion of the Hon'ble Supreme Court of India, but a mere extract from a book titled 'The Law and Practice of Arbitration and Conciliation'. A perusal of paragraph 14 affirms this position and very fairly, learned Senior Counsel for QDS does not dispute this.

5(t) We also notice that the learned Single Judge has dealt with the rival submissions on this aspect of the matter and summarized the findings returned by the Court. Learned Single Judge has held that there is no quarrel with the proposition that the grant of registration of a copyright or design under the relevant statutes can be achieved through / only by statutory authorities constituted under the respective statutes. Learned Single Judge has gone on to hold in the present case that both parties are in reality claiming a better right of usage vis-a-vis the other and that this would clearly bring the facts of the present case within the realm of a right in personam rather than a right in rem. On this aspect of the matter, we have no difficulty in sustaining the finding returned and opinion of the learned Single Judge. At the risk of repetition, while a patent right may be arbitrable, the very validity of the underlying patent is not arbitrable. This has been articulated in Mustill and Boyd in their '2001 Companion Volume to the 2nd Edn. of Commercial Arbitration' . This has also been extracted by the Hon'ble Supreme Court of India in Booz Allen's case and the learned Single Judge has noticed this. Therefore, to this extent, there is no difficulty in agreeing with the learned Single Judge and holding that the disputes in the instant case as between Lifestyle and QDS are arbitrable.
Madras High Court

Lifestyle Equities Cv vs Qdseatoman Designs Pvt. Ltd on 13 October, 2017

CORAM : Ms.INDIRA BANERJEE, CHIEF JUSTICE

MR.JUSTICE M.SUNDAR

O.S.A.Nos.216 and 249 of 2017
and
C.M.P.No.14932 of 2017
O.S.A.No.216 of 2017 :

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Whether courts in India can grant interim relief even if place of Arbitration is outside India?

This is an application filed by the petitioner invoking Section 9 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') seeking an interim measure before commencement of the arbitral proceedings. Initially, the registry has noted a defect with respect to the request made by the petitioner before this Court to secure an interim measure under Section 9 of the Act, 1996, especially as per the agreement, the place of arbitration is designated in Singapore. The said question was considered by this Court and passed an order dated 20.2.2017, after hearing rival parties, whereby it is held that, as provided under sub section (2) of Section 2 of the Act it is evident that, subject to an agreement to the contrary the provisions contained in Section 9 shall apply to international commercial arbitration, even if the place of arbitration is outside India, if an arbitral award made/to be made in such place is enforceable and recognized under provisions of Part II of Act, 1996. It is also found that the agreement specifically provides, the agreement shall be construed and interpreted in accordance with the laws of India and shall be subject to the courts of Thiruvananthapuram, Kerala State and therefore, the application is maintainable before this Court under Section 9 of the Act, 1996, which has become final.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(ICA) No. 1 of 2017

Decided On: 07.07.2017

 Female Health Company UK Plc.Vs. Hll Lifecare Limited

Hon'ble Judges/Coram:

S.P. Chaly, J.

Citation:AIR 2017 Kerala 149

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Whether dispute involving enforcement of intellectual property rights can be referred to arbitration?

 I do not think it is possible to lose sight of the fact that in trade mark and copyright disputes, we very often are confronted with written agreements. In copyright matters, agreements are in fact a statutory requirement for an assignment. There must be a written document. The law does not say that the written document of assignment should have an arbitration clause. But many do. What Mr. Dhond suggests, in effect, is that in every one of these cases, all these arbitration clauses must be treated as entirely null, void and otiose. No law that I am aware of even remotely suggests anything of the kind. I think it would do a very great violence not only to the language but to the purpose and ambit of the Arbitration Act as also the Copyright Act, if I would have to read it in the manner Mr. Dhond suggests.

22. I find Mr. Dhond's protests, to the effect that the view I am inclined to take would turn the entire edifice of intellectual property law on its head, needlessly alarmist. It will do nothing of the kind. On the contrary, I believe an acceptance of Mr. Dhond's view must result in widespread confusion and mayhem in commercial transactions. We often have complex commercial documents and transactions that routinely deal with intellectual property rights of various descriptions as part of the overall transaction. This can be said of mergers, acquisitions, joint ventures, the setting up of special purpose vehicles, technology transfer and sharing agreements, technical tie-ups, licensing and so on. The range of fields of human activity that could possibly be covered by any one or more of these is limited by nothing but our own imagination: steel manufacturing, setting up of power plants, software, motor car manufacture, computer hardware, music, films, books and literature, performances and even services. If Mr. Dhond is correct, then in any of these cases, where intellectual property rights are transferred or, for that matter, in any way dealt with, no dispute arising from any such agreement or transactional document could ever be referred to arbitration, and every single arbitration clause in any such document would actually, in his formulation of it, be void and non-est ab initio. It would have to be so — Sukanya Holdings will not allow a dispute relating to intellectual property rights to be segregated from other disputes. I do not think the world of domestic and international commerce is prepared for the apocalyptic legal thermonuclear devastation that will follow an acceptance of Mr. Dhond's submission.

23. Not to put too fine a point on it, Mr. Dhond's argument misses a fundamental aspect of the Supreme Court's decision in V.H. Patel. What the Supreme Court had before it in that case was a reference to arbitration that related to three trade marks and injunction claims in relation to these. One of the arbitral declarations was that the three registered trade marks continued to be the assets of a particular firm. Others before the arbitrator were declared by arbitral award to have no right, title or interest in these marks. The arbitrator issued an injunction permanently restraining those others from using or explosing in the course of trade or otherwise any of those marks in any territory. No question was ever raised before the Supreme Court in V.H. Patel about the award on the issue of the trade marks being bad on account of nonarbitrability, nor did that issue give the Supreme Court pause. The only question of arbitrability was about the dissolution of the firm, and there, as we have seen, the Supreme Court found that reference to arbitration was indeed competent.

24. I note here that the Defendants Nos. 2 to 8 have all filed Affidavits, agreeing to submit their disputes to the arbitration under the arbitration clause in the Term Sheet. Each of them have also said that they were all sub-licensees of Defendant No. 1. They are also, therefore, covered by the amended Section 8 of the Arbitration & Conciliation Act, 1996.

25. In this view of the matter, I see no reason to deny the relief sought. There will be an order in terms of prayer clause (c), which reads as under:

“(c) That this Hon'ble Court be pleased to pass an order under Section 8 of the Arbitration and Conciliation Act, 1996 referring the present suit to arbitration pursuant to the Arbitration Agreement contained in the Term Sheet dated 13thJune 2012 executed between the Plaintiff and Defendant No. 1;”

In the High Court of Bombay

(Before G.S. Patel, J.)

Eros International Media Limited 

v.

 Telemax Links India Pvt. Ltd.

Notice of Motion No. 886 of 2013

In

Suit No. 331 of 2013

Decided on April 12, 2016

Citation:2016 SCC OnLine Bom 2179

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Compulsory Licensing of Pharmaceuticals : Socio-Legal Impact

Presentation is below : 

Compulsory Licensing of Pharmaceuticals : Socio-Legal Impact from Harshal Morwale

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WHETHER SALE OF FOREIGN OWNED TRADEMARKS REGISTERED AND USED IN INDIA ARE TAXABLE IN INDIA?

 Thus, the legislature, where it wanted to specifically provide for a particular situation, as in the case of shares, where the share derives, directly or indirectly, its value substantially from assets located in India, it did so. There is no such provision with regard to intangible assets, such as trademarks, brands, logos, i.e., intellectual property rights. Therefore, the well accepted principle of 'mobilia sequuntur personam' would have to be followed. The situs of the owner of an intangible asset would be the closest approximation of the situs of an intangible asset. This is an internationally accepted rule, unless it is altered by local legislation. Since there is no such alteration in the Indian context, we would agree with the submissions made on behalf of the petitioner that the situs of the trademarks and intellectual property rights, which were assigned pursuant to the ISPA, would not be in India. This is so because the owner thereof was not located in India at the time of the transaction.

IN THE HIGH COURT OF DELHI

WP (C) 6902/2008

Decided On: 25.07.2016

Appellants: CUB PTY Limited

Vs.

Respondent: UOI and Ors.

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Sanjeev Sachdeva, JJ.

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What are the parameters for testing distinctiveness of the Trade Mark?

The parameters for testing the distinctiveness of a mark as extent and period of use, goodwill and association in the minds of consumers, investments on advertisements, recognition in trade circles and channels of distribution and the relevant class of customers. 

Delhi High Court

P.P. Jewellers Pvt. Ltd. vs P.P. Buildwell Pvt. Ltd. on 24 September, 2009

Citation : 2009 (41) PTC 217 (Del)

S. Muralidhar, J.

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How to ascertain distinctiveness of a Trade Mark?

The usual approach followed by Courts of law, whilst ascertaining whether a particular trade mark has acquired a secondary meaning in relation to the product for which it is used, is to evaluate the trade mark on the anvil of various factors, viz. the extent of its use qua the product, the expenditure incurred by the plaintiff in marketing and promoting its product under the said trade mark, the profits and sales revenue revenue etc. These are valid parameters that objectively reflect the popularity, usage, consumer recognition and market strength of a trademark and thus help in ascertaining whether the trade mark has acquired a secondary meaning or not.

Delhi High Court

Cadila Healthcare Ltd. vs Gujarat Co-Operative Milk ... on 23 October, 2007

Equivalent citations: MIPR 2007 (3) 497, 2008 (36) PTC 168 (Del)

Bench: G Sistani

JUDGMENT 

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Whether domain name is protected under Trade Marks Law?

The original role of a domain name was no doubt to provide an address for computers on the internet . But the internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a domain name is also used as a business identifier. Therefore, the domain name not only serves as an address for internet communication but also identifies the specific internet site. In the commercial field, each domain name owner provides information/services which are associated with such domain name. Thus a domain name may pertain to provision of services within the meaning of Section 2 (1) (z) of Trade Marks Act, 1999.

Delhi High Court

Mr. Arun Jaitley vs Network Solutions Private Limited on 4 July, 2011

Author: Manmohan Singh

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What is the difference between Trade Mark and Property Mark?

The concept of a trade mark is distinct from that of a property mark. A mark, as defined by Section 2(1)(j) of the Trade and Merchandise Marks Act, 1958, includes a device, brand, heading, label, ticket, name, signature, word, letter or numerical or any combination thereof. A trade mark means a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use that mark. The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, to give an indication to his eye of the trade source from which the goods come, or the trade hands through which they pass on their way to the market, (per Bowen, L.J., in In re Powell's Trade Mark (1893) 10 R.P.C. 200. On the other hand, a property mark, as defined by Section 479 of the Penal Code means a mark used for denoting that a movable property belongs to a particular person. Thus, the distinction between a trade mark and a property mark is that whereas the former denotes the manufacture or quality of the goods to which it is attached, the latter denotes the ownership in them. In other words, a trade mark concerns the goods themselves, while a property mark concerns the proprietor. A property mark attached to the movable property of a person remains even if part of such property goes out of his hands and ceases to be his.

Supreme Court of India

Sumat Prasad Jain vs Sheojanam Prasad (Dead) & Ors on 29 August, 1972

Equivalent citations: 1972 AIR 2488, 1973 SCR (1)1050

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Whether unreleased film is entitled to protection of Trade Marks Law?

Even if the work has not been released, a sufficient amount of pre-release publicity of the title may cause a title to acquire recognition sufficient for protection. Relevant evidence from which secondary meaning for a literary title may be inferred as a question of fact include: (1) the length and continuity of use; (2) the extent of advertising and promotion and the amount of money spent; (3) the sales figures on purchases or admissions and the number of people who bought or viewed plaintiff's work; and (4) the closeness of the geographical and product markets of plaintiff and defendant. [Para no. 23]

Delhi High Court

Kanungo Media (P) Ltd. vs Rgv Film Factory And Ors. on 27 February, 2007
Equivalent citations: 138 (2007) DLT 312, 2007 (34) PTC 591 (Del)

Bench: A Sikri

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What is the difference between trade mark and design?

The "trade mark" and a "design" are entirely different connotations because the "trade mark" is a device, label, colour, name or any other mark put on a product to link it to its manufactuer/producer, who may be the proprietor of the registered trade mark or who might have acquired reputation in an unregistered trade mark on account of its prior use arid reputation in the trade. On the other hand, the "design" is merely a feature of shape, pattern, configuration, ornament or composition of lines or colours applied to an article to make it attractive and appealing to the eye of the consumer. A "trade mark" may also be attractive and appealing to the eye but it should be directly relatable to the producer/manufacturer of the goods whereas the "design" may be merely appealing or attractive to the eye and need not give any indication to the consumer/purchaser about the identity of the manufacturer or producer of the article. The fundamental difference, therefore,' between a "trade mark" and "design" is that "trade mark" signals to the mind the source or identity of the producers/manufacturer of the article whereas "design" appeals to the eye and attracts the consumer/purchaser. It need not necessarily reveal the identity of producer to the consumer though in certain well know designs the identity even may get conveyed. A producer or manufacturer may put his trade mark also on a designed product so that it is conveyed to the consumer that he has produced it.

Delhi High Court

Corning, Incorporated And Ors. vs Raj Kumar Garg And Ors. on 9 September, 2003

Equivalent citations: 2004 (73) DRJ 649, 2004 54 SCL 378 Delhi, 2004 (28) PTC 257

Bench: R Chopra

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Whether rights of prior user of Trade Mark will prevail over registered user of Trade mark?

Scheme of the Act is such where rights of prior user are recognized superior than that of the registration and even the registered proprietor cannot disturb interfere with the rights of prior user. The overall effect of collective reading of the provisions of the Act is that the action for passing off which is premised on the rights of prior user generating a goodwill shall be unaffected by any registration provided under the Act. This proposition has been discussed in extenso in the case of N.R. Dongre and Ors. v. Whirlpool Corporation and Anr. MANU/DE/0700/1995 : AIR (1995) Delhi 300 wherein Division Bench of Delhi High Court recognized that the registration is not an indefeasible right and the same is subject to rights of prior user. The said decision of Whirlpool [supra] was further affirmed by Supreme Court of India in the case of N.R. Dongre and Ors v. Whirlpool Corporation and Anr. MANU/SC/1223/1996 : 1996 (3) R.C.R. (Civil) 697 : (1996) 5 SCC 714.

B. The above were the reasonings from the provisions arising from the plain reading of the Act which gives clear indication that the rights of prior user are superior than that of registration and are unaffected by the registration rights under the Act. Secondly, there are other additional reasonings as to why the passing off rights are considered to be superior than that of registration rights.

Traditionally, passing off in common law is considered to be a right for protection of goodwill in the business against misrepresentation caused in the course of trade and for prevention of resultant damage on account of the said misrepresentation. The three ingredients of passing off are goodwill, misrepresentation and damage. These ingredients are considered to be classical trinity under the law of passing off as per the speech of Lord Oliver laid down in the case of Reckitt & Colman Products Ltd. v. Borden Inc MANU/UKHL/0012/1990 : (1990) 1 AllE.R. 873 which is more popularly known as "Jif Lemon" case wherein the Lord Oliver reduced the five guidelines laid out by Lord Diplock in Erven Warnink v. Townend & Sons Ltd. [1979) AC 731, 742 (HL)] (the "Advocate Case") to three elements: (1) Goodwill owned by a trader, (2) Misrepresentation and (3) Damage to goodwill. Thus, the passing off action is essentially an action in deceit where the common law rule is that no person is entitled to carry on his or her business on pretext that the said business is of that of another. This Court has given its imprimatur to the above principle in the case of Laxmikant V. Patel v. Chetanbhat Shah and Anr. MANU/SC/0763/2001 : 2002 (2) R.C.R. (Civil) 357 : (2002) 3 SCC 65.

The applicability of the said principle can be seen as to which proprietor has generated the goodwill by way of use of the mark name in the business. The use of the mark/carrying on business under the name confers the rights in favour of the person and generates goodwill in the market. Accordingly, the latter user of the mark/name or in the business cannot misrepresent his business as that of business of the prior right holder. That is the reason why essentially the prior user is considered to be superior than that of any other rights. Consequently, the examination of rights in common law which are based on goodwill, misrepresentation and damage are independent to that of registered rights. The mere fact that both prior user and subsequent user are registered proprietors are irrelevant for the purposes of examining who generated the goodwill first in the market and whether the latter user is causing misrepresentation in the course of trade and damaging the goodwill and reputation of the prior right holder/former user. That is the additional reasoning that the statutory rights must pave the way for common law rights of passing off.

C. Thirdly, it is also recognized principle in common law jurisdiction that passing off right is broader remedy than that of infringement. This is due to the reason that the passing off doctrine operates on the general principle that no person is entitled to represent his or her business as business of other person. The said action in deceit is maintainable for diverse reasons other than that of registered rights which are allocated rights under Recent Civil Reports the Act. The authorities of other common law jurisdictions like England more specifically Kerry's Law of Trademarks and Trade Names, Fourteenth Edition, Thomson, Sweet & Maxwell South Asian Edition recognizes the principle that where trademark action fails, passing off action may still succeed on the same evidence. This has been explained by the learned Author by observing the following:--

15-033 "A claimant may fail to make out a case of infringement of a trade mark for various reasons and may yet show that by imitating the mark claimed as a trademark, or otherwise, the Defendant has done what is calculated to pass off his goods as those of the claimant. A claim in "passing off' has generally been added as a second string to actions for infringement, and has on occasion succeeded where the claim for infringement has failed"

The same author also recognizes the principle that Trade Marks Act affords no bar to the passing off action. This has been explained by the learned Author as under:--

15-034 "Subject to possibly one qualification, nothing in the Trade Marks Act 1994 affects a trader's right against another in an action for passing off. It is, therefore, no bar to an action for passing off that the trade name, get up or any other of the badges identified with the claimant's business, which are alleged to have been copies or imitated by the Defendant, might have been, but are not registered as, trade marks, even though the evidence is wholly addressed to what may be a mark capable of registration. Again, it is no defense to passing off that the Defendant's mark is registered. The Act offers advantages to those who register their trade marks, but imposes no penalty upon those who do not. It is equally no bar to an action for passing off that the false representation relied upon is an imitation of a trade mark that is incapable of registration. A passing off action can even lie against a registered proprietor of the mark sued upon. The fact that a claimant is using a mark registered by another party (or even the Defendant) does not of itself prevent goodwill being generated by the use of the mark, or prevent such a claimant from relying on such goodwill in an action against the registered proprietor. Such unregistered marks are frequently referred to as "common law trade marks"

From the reading of aforementioned excerpts from Kerly's Law of Trademarks and Trade Names, it can be said that not merely it is recognized in India but in other jurisdictions also including England/UK (Provisions of UK Trade Marks Act, 1994 are analogous to Indian Trade Marks Act, 1999) that the registration is no defense to a passing off action and nor the Trade Marks Act, 1999 affords any bar to a passing off action. 

Equivalent Citation: 2016(66)PTC1(SC), 2015(2)RCR(Civil)810, 2015(7)SCALE136, (2016)2SCC683

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2758 of 2015 (Arising Out of SLP (C) No. 12671 of 2014)

Decided On: 17.03.2015

Appellants: S. Syed Mohideen 
Vs.
Respondent: P. Sulochana Bai

Hon'ble Judges/Coram:H.L. Dattu, C.J.I. and A.K. Sikri, J.

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Is government aware Facebook gets licence to uploaded content? asks Delhi High Court

New Delhi: The Delhi High Court on Thursday said "it appears" that when anything was uploaded on social media sites like Facebook and Twitter the websites got a licence to the intellectual property rights of the content without paying any royalty and asked the Centre whether it was aware of this.

"It appears there are certain settings by which a user of social media can opt to restrict use of intellectual property rights (IPR). It also appears there can be grant of IPR licence of the content uploaded," a bench of justices Badar Durrez Ahmed and Sanjeev Sachdeva said.

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Judgment relating to IPR dispute regarding film" Lai bhaari"

Justice Patel succinctly rules that Techlegal has “absolutely no proprietary or statutory rights in the phrase “lai bhaari”, no matter how spelled.”

He notes that awarding proprietary rights for common expressions to any individual or company has dangerous consequences and such disputes cannot be the mandate of intellectual property protection laws. He notes that this would amount to “a form of censorship and the gagging of speech and expression.”

The judgment also notes that the trademark registration produced by the Plaintiff is of the domain name laibhaari.com, and not of the colloquial Marathi expression ‘Lai Bhaari’, and that both are completely different things. Plus, the registration is applicable only to the narrow range of services under Class 38of the Trade Marks Act. In fact, when Techlegal Solutions tried to trademark the expression ‘Lai Bhaari’ the Registry apparently opposed it and the application is still pending.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 1503 OF 2014
IN
SUIT (L) NO. 629 OF 2014
Techlegal Solutions Pvt. Ltd.
V
Mrs. Genelia Ritiesh Deshmukh 

CORAM: G.S. PATEL, J
DATED: 3rd July 2014

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The “magic” of reverse image searches can help IP litigators protect their clients from copyright infringement.

Intellectual-property litigators are now using online tools and research databases more and more to assist in efficiently advising their clients. While many lawyers use Google for finding information, not many know that they can use Google to do a “reverse image search” to assist their clients in preliminary consultation regarding similarity of such visual intellectual property (trademarks and copyrights) to other already existing images on the Internet. With this free technology, instead of inputting search terms to find images online, users may upload images or pull images from other websites and see what other online images are similar.

How Does It Work?
There are several reverse image search engines available with their own search algorithms, unique layouts, and target demographics. Examples are TinEye, Byo Image Search, GazoPa, RevIMG, IM2GPS, Idée, Google Images, and imgSeek, and SnapTell, which was acquired by Amazon in 2009. Without a doubt, however, the most popular options are Google Images and TinEye. Even though Google Images arrived on the reverse image search scene rather late (debuting only last year), the strength of its database of images has quickly made it the search engine of choice for reverse searches.

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Domain name is entitled same protection trade mark

Internet domain names are of importance and can be a valuable corporate asset. A domain name is more than an Internet address and is entitled to the equal protection as trade mark. With the advancement and progress in the technology, the services rendered in the Internet site have also come to be recognised and accepted and are being given protection so as to protect such provider of service from passing off the services rendered by others as his services. In yahoo Inc. (supra) it was observed that in a matter where services rendered through the domain name in the Internet, a very alert vigil is necessary and a strict view is to be taken for its easy access and reach by anyone from any corner of the globe.

Bombay High Court

Rediff Communication Limited vs Cyberbooth & Another on 22 April, 1999
Equivalent citations: 1999 (4) BomCR 278
Author: A Shah
Bench: A Shah

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Legal Issues When Hiring Someone to Build Your Site

Given the costs associated with hiring employees, a vast majority of businesses now hire independent contractors to build and/or maintain their websites. This raises a host of legal issues.

First and foremost, it should be a requirement that the person or business developing your site agree to put everything in writing. As with any contractual situation, oral agreements are useless. Handshake agreements and oral promises simply are not enforceable in court. Sad, but true, so get it in writing!

The second issue to consider is jurisdiction. The World Wide Web is aptly titled. If your business is in Los Angles and your site designer is in Toronto, how are you going to enforce the agreement? At a minimum, you should designate the jurisdiction of any disputes as you desire, to wit, Los Angeles in this case. That being said, you need another hammer as well.

The hammer is, of course, the requirement of milestones. Milestones are simply stages of site development. At each milestone, the site designer is required to meet certain thresholds, get approval from you for the progress made and payment of an indicated amount. Milestones are critical because web designers tend to have an artistic side, which means they can take forever to accomplish a site design unless “motivated”. Milestones motivate them.

A major issue that is often missed is the assignment of copyright. Most site owners go through the following thought progression. I am the owner of the site. I am paying this person to create the site based on conversations we have had. When I pay them, I become the owner of the design including copyright of it.

While logical, this thought process is simply wrong. Under federal law, the creator of a work is the owner of the copyright unless they are the employee of a business. In this case, our site designer is an independent contractor. As a result, they maintain ownership unless you take affirmative steps to obtain it. This is handled by including a clause in the agreement that details the specific IP rights to be assigned from the designer to you. Fail to include such a clause and you could end up seeing parts or your entire site reproduced on other domains!

As you can see, there is far more to hiring a site designer than just finding a qualified individual. Think through the process, negotiate a deal, get it in writing and make sure you obtain all the intellectual property rights! Don’t use a pre-printed form!

source;student law

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