Thursday, 28 May 2015

The Supreme Court of India - Restraining Use of Public Funds on Government Advertisements

Common Cause vs Union of India

In response to the writ petition filed by Common Cause and Centre for Public Interest Litigation (herein referred to as Plaintiffs) requesting the Hon’ble Court to regulate Government’s action in the matter so as to prevent misuse/wastage of public funds in connection with such advertisements, the Hon’ble Supreme Court passed an order dated April 23, 2014 establishing a committee comprising of (1) Prof. (Dr.) N.R. Madhava Menon, former Director, National Judicial Academy, Bhopal (2) Mr. T.K. Viswanathan, former Secretary General, Lok Sabha and (3) Mr. Ranjit Kumar, Senior Advocate to go into the matter and submit a report to the Court. On May 13, 2015, the Hon’ble Supreme Court considered these recommendations and accepted them, forming the Guidelines for Content Regulation on Government Advertising.

Brief Facts of the case:
  1. Common Cause and Centre for Public Interest Litigation are two registered bodies which approached the Hon’ble Supreme Court of India by filing a writ petition under Article 32 of the Constitution, seeking an appropriate writ to restrain the Union of India and all State Governments from using public funds on Government advertisements which are primarily intended to project individual functionaries of the Government or a political party;
  2. According to the petitioners such practice becomes rampant on the eve of the elections. Advertisements not only result in gross wastage of public funds but constitute misuse of governmental powers besides derogating the fundamental rights of a large section of the citizens as guaranteed by Articles 14 and 21 of the Constitution of India.
  3. The Writ Petitioners conceded to the importance of Government advertisements which convey necessary information to the citizens with regard to various welfare and progressive measures as also their rights and entitlements, however, had contended that in the garb of communicating with the people, in many instances, undue political advantage and mileage is sought to be achieved by personifying individuals and crediting such individuals or political leaders (who are either from a political party or government functionaries) as being responsible for various government achievements and progressive plans.
  4. After a round of exhaustive hearings, on April 23, 2014, the Court acknowledged the fact that the dividing line between permissible advertisements that are a part of government messaging and advertisements that are “politically motivated” at times gets blurred, and therefore felt the need to establish a Committee comprising of experts to look into this matter and submit a report to the Court.
  5. The Guidelines as proposed by the Committee talk about 5 essential principles to regulate the content of advertising, namely:
    1. advertising campaigns are to be related to government responsibilities,
    2. materials should be presented in an objective, fair and accessible manner and designed to meet objectives of the campaign,
    3. not directed at promoting political interests of a Party,
    4. campaigns must be justified and undertaken in an efficient and cost-effective manner and
    5. advertisements must comply with legal requirements and financial regulations and procedures.
  6. The Writ Petitions were resisted by the Union of India on the grounds that the issues sought to be raised pertain to governmental policies and executive decisions in respect of which it may not be appropriate for this Court to lay down binding guidelines under Article 142.
  7. The Hon’ble Supreme Court closed the matter by approving and adopting the recommendations of the Committee except what has been specifically indicated above with regard to:

    1. a. Publication of photographs of the Government functionaries and political leaders alongwith the advertisement(s).
    2. b. appointment of an Ombudsman
    3. c. the recommendation with regard to performance audit by each Ministry.
    4. d. embargo on advertisements on the eve of the elections.
Guidelines on Content Regulation of Government Advertising

Following are excerpts from the contents of the guidelines suggested by the Court appointed committee which affect Intellectual Property laws:

2.(2) Application
These Guidelines shall apply to the content of all Government Advertising till a suitable legislation is enacted by the Government to prevent the misuse of public funds on advertisements to gain political mileage as distinct from legitimate Government messaging.

6.(3)     Advertisement materials should be objective and not directed at promoting political interests of ruling party:
(ii) Government advertising shall maintain political neutrality and avoid glorification of political personalities and projecting a positive impression of the party in power or a negative impression of parties critical of the government.
(iii) Advertisement materials must not –
(a) Mention the party in government by name;
(b) directly attack the views or actions of others in opposition;
(c) include party political symbol or logo or flag;
(d) aim to influence public support for a political party, candidate for election; or
(e) refer to link to the websites of political parties or politicians.
6.(4)(d) Though advertising by governments should remain regulated all the time, it is particularly important to scrupulously follow these principles before and during the elections.
6.(5)     Government advertising must comply with legal requirements and financial regulations and procedures:
Governments shall ensure that all Advertisements comply with:-
(i) relevant laws regarding privacy, intellectual property rights, election laws and consumer protection laws apart from laws in respect of broadcasting and media; and
(ii) copyright laws and ownership rights associated with works subject to copyright are fully respected.

The Court Order can be accessed here.

One of the Guidelines that the Hon’ble Supreme Court has issued is in regard to Government personalities in advertisements. The Guideline specifies that only photographs of the President, the Prime Minister and the Chief Justice of India can be used in Government Advertisements and that no other person’s face/image may be used to advertise any government activity. Following in the steps of countries like Canada, Australia and the United Kingdom, these measures have been introduced so as to ensure personality rights of any political party / figure remain intact while at the same time protecting the interests and money paid by the taxpayers being added to the public fund.

This particular guideline might adversely affect all the political figureheads who have been banking on their goodwill and fame to further their campaign and gain political mileage by exploiting the public funds. These guidelines do not, however, prohibit any famous political party / figure to further their campaign and gain political mileage using their own funds. This specific guideline was essential as it prohibits the misuse / exploitation of public funds and hard earned taxpayer money by political parties to rise in popularity, especially during times of election when campaigning is most widespread and extravagant.


The establishment of these guidelines is therefore, perfectly balanced as it maintains the interest of the political figureheads / parties and the interests of the common public. The Court observed that the legitimate and permissible object of an advertisement, can always be achieved without publication of the photograph of any particular functionary either in the State of a political party. Being a mixture on public and private rights, the personality rights give a person the sole right to exploit their personality for commercial purposes, and since such famous figures / parties may do so with their own fund, their personality rights, which in themselves are an extension of Intellectual Property rights, are safeguarded while keeping the public interest at highest priority.

Friday, 22 May 2015

How can an International Patent Application be filed through PCT in India?

The International Patent Application through PCT, designating countries of interest can directly be filed at the Indian Patent Office with India as the receiving office.
Four copies of the International Application is required to be filed with the Patent Office.
The Patent Office prepares the certified copy of the priority documents and the same is transmitted to the International Bureau (IB) of the World Intellectual Property Organization (WIPO).

A search copy is also sent to the International Searching Authority (ISA). The ISAs conduct and issue search report on the patentability of the invention. The applicant may also consider examination of his application by the International Preliminary Examination Authority.

Depending upon the favorability of International search report and International Preliminary Examination report on Patentability the patent application may enter the national phase of the designated countries.

For further information on how can an International Patent Application be filed through PCT in India, please write to us at

What is Patent Cooperation Treaty (PCT)?

The Patent Cooperation Treaty (PCT) is an international patent law treaty, concluded in 1970 and entered into force in 1978. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application.

Thus an inventor of a member country can simultaneously obtain priority for his Invention in any or all of the member countries, without having to file a separate application in the countries of interest, by designating them in the PCT application. India joined the PCT on December 7, 1998.

The activities of the PCT are coordinated by the World Intellectual Property Organization (WIPO) situated in Geneva.

For further information on Patent Cooperation Treaty (PCT) in India, please write to us at

What happens to a patent application once it is examined?

Once the application for patent is examined, the Patent office generally issues an examination report to the applicant. Such examination report is known as First Examination Report (FER).

The applicant is given twelve months period from the date of issuance of the FER to comply with the objections raised in the FER. If the applicant is not able to meet the requirement within 12 months, or does not submit the documents which were sent to him for compliance within the said period, the application is deemed to have been abandoned.

If the application is found to be in order for grant, the patent is granted and the letters patent is issued to the applicant.

However if a pre-grant opposition is filed or pending, further action is taken after disposition of the pre-grant opposition.

For further information on status of a patent application once it is examined in India, please write to us at

Can published or disclosed inventions be patented in India?

Publication of an invention before filing of a patent application would disqualify the invention to be patentable as the disclosure of invention by way of publication is detrimental to novelty of the invention.

Hence, inventors should not disclose their inventions before filing the patent application. The invention should be considered for publication after a patent application has been filed. However the Patents Act does specifies certain conditions under which a grace period of 12 months for filing application is given even after publication.

For further information on whether a published or disclosed inventions be patented in India, please write to us at

How can a person apply for a patent in India?

In accordance with the provisions of Patent Act, the inventor, his assignee or legal representative of deceased person, who before his death was either the inventor or assignee, can apply for patents at the head office of the Indian Patent Office or its branches depending upon in whose jurisdiction he resides or has a domicile or has a principle office of business. In case of a foreign applicant, the application can be filed at the appropriate office, in whose jurisdiction the address for service or patent attorney’s office is situated.

The patent application can be accompanied either with complete specification or with provisional specification.

In case the application is filed with provisional specification, then one has to file complete specification within 12 months from the date of filing of the application or else the application will be deemed to be abandoned.

There is no extension of time to file complete specification after expiry of the said period.

For further information on how a person apply for a patent in India, please write to us at

For how long can I enjoy copyright protection in a work in India?

The duration of protection granted for works of Copyright caries depending on the type of work. Literary or musical works or artistic works other than photographs have a life span of which extends through the lifetime of the author and an additional 60 years from the year in which the author dies.
Cinematograph films, photograph and computer programmes are protected for 60 years from the year in which the work is made available to the public.

Sound recordings are protected for 60 years from the end of the year in which the recording is first published.

For further information on how long can I enjoy copyright protection in a work in India, please write to us at

How can I get a copyright in India?

In India a copyright can be registered under the Copyright Act, 1957 which provides for:
  1.  The application for registration- to be filed in a prescribed format on Form XIV as prescribed under the Copyright rules;
  2.  Making separate applications for registration of each work;
  3. Each application shall be accompanied by the prescribed fees;
  4. Application shall be signed by the applicant or the Advocate in whose favour Power of Attorney has been executed;

For further information on how to get a copyright in India, please write to us at

Does Indian law extends special protection to well-known trademarks?

Yes, the Indian Trademark Law extends extra-ordinary protection to well-known marks in India. The Trademark Act, 1999 defines well-known trademarks and the Indian Judiciary in plethora of cases has granted protection to well-known marks like granting of exparte-injunction and protecting unregistered marks in India. Reference can be made to the cases of Daimler Benz Akietgesellschaft v Hybo Hindustan, Whirlpool Co & Anr v. N R Dongre, Rolex Sa vs Alex Jewellery Pvt Ltd & Ors.

A list entailing well-known trademarks is also available at the Registry’s website at

For further information on special protection to well-known trademarks in India, please write to us at

Can non-traditional trademarks be registered in India?

Yes, non- traditional trademarks like three-dimensional marks, shape marks, sound marks, holograms, sole colour marks and colour combination marks can be registered in India.

Please note that any mark which is capable of being graphically represented, prima facie qualifies for trademark registration in India.
In view of the aforesaid, non-traditional trademarks like taste and smell marks are not deemed registrable under the Indian trademark law.

For further information on how a non-traditional trademarks be registered in India, please write to us at

How can I stop someone from misusing my logo or brand name?

If your brand name is registered then the remedy of infringement can be initiated to restrain misuse by third party. If trademark is pending then common law action of passing off can be initiated for prohibiting unauthorized use.
The reliefs that the Trademark Law provides in case of infringement or passing off are permanent and interim injunction, damages, accounts for profit, delivery of infringing goods.

Generally on discovering trademark misuse, trademark holders also send Cease & Desist notice to the infringer. Sending of Cease & Desist notice is most often sought as a means of restraining misuse of trademark as it is cost-effective and a milder form enforcing trademark rights against the infringer.

For further information on how to stop someone from misusing my logo or brand name in India, please write to us at

How to select an appropriate trademark for filing in India?

The trademark shall be distinctive, non- descriptive and original. Additionally, the following shall be taken care of while selecting a trademark to be filed in India:
-          The mark does not deceive the public or cause confusion;
-          Any content of the mark does not hurt the religious susceptibilities of any class or section of citizen in India;
-          The mark does not contain any scandalous or obscene matter;
-          The mark is not prohibited under the Emblems and Names Act, 1950;
-          The mark does not have a negative connotation in India;

For further information on how to select an appropriate trademark for filing in India, please write to us at

How can I trademark my company name or logo in India?

The procedure for registering a company name is same as above. A company name can be registered from classes 35 to 45 depending on the kind of services rendered by the company.
Procedure for registering a logo as a trademark is same as above, however, there are certain additional requirements for logo while filing. For example if the logo is filed in a particular colour combination then is it limited to that combination only or it is registered in all colours. If the logo is a 3D mark then certain statutory requirements like the application shall contain three different views of the mark.

For further information on how to register a company name or logo in India, please write to us at

Thursday, 21 May 2015

How can I register a brand name or a trademark in India?

In India brand name can be registered under the Trademark Law which provides for trademark registration. The various steps involved in registering a trademark are:

  1. Searching for a unique and distinctive brand name;
  2. Filing trademark application in the relevant class (es) with the Registry- which can be done manually at the appropriate Trademark Office or can be filed online at .
  3. Prosecution of trademark application and meeting of objections raised by the Registry i.e. examination of trademark application;
  4. Publication of Trademark Application in the Trademark Journal;
  5. If no opposition is filed within the stipulated period then mark is registered;
  6. Registered trademark is to be renewed in every 10 years;

For further information on how to register a brand name in India, please write to us at