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March 3, 2019

Removal or Resignation of Partner from LLP

Limited Liability Partnership (LLP) is a company where all partners are having Limited liability. Which means that one partner is not liable for the negligence of other partner.

Features of LLP

Limited liability protection is one of the main advantages in small and medium sized businesses.
The existence and running of a limited liability partnership is not dependent on other partners. The change of partners in Limited Liability partnership will not affect in the continuity of the Limited Liability Partnership.
The liability of partners in LLP is limited to the amount of capital invested and there is no minimum limited to the amount of capital to be invested.
However in a partnership firm minimum there should be two members and maximum there can be 10 members, whereas in LLP minimum two members are required and maximum there can be N numbers of members.

Removal or resignation of Partners

Removal or resignation of Partners can happen for many reasons and those reasons are as follows-

Death of the partner
Dissolution of the LLP
If partner is declared to be of unstable mind
If partner is declared as insolvent

A partner can be removed from LLP if there is such resignation or removal clause in an agreement, until then no majority of partners can remove the partner by voting.

Removal of partner by majority, for that form is to be filled within 30 days duly signed by designated partners and the same has to be validated by a Chartered Accountant.

If a partner himself wants to resign the he must file or requires a notice to be given to the designated partners about its resignation 30 days in advance.

The procedure of removal of Partners from LLP is simple and the procedure is as follows-

Preparation of financial statements and division of assets among the partners from the date of resignation.
Redrafting the LLP agreement
Tax compliances applicable to retiring Partner

March 3, 2019

Sound Trademark in India

Any musical notes or sans or words can be trademarked in India. Earlier only sound Trademark was done in the West i.e. mostly in United States of America, then before few years only the same has been adopted in india and from now in India also sound of a particular product or any sound which is unique is eligible for its Trademark in India. Although the cases of registered sound Trademark are very rare.

There are certain clauses which describes that how sound Trademark can be registered.

First and foremost an Applicant must mention in its application that the application is for the protection of sound mark and not for anything else otherwise like other applications it will be considered as same word and device mark unless mentioned in the Application form.

Registration of a sound mark depends on whether the said sound mark is unique or not, and on the basis of its uniqueness only the registry will decide on its registration. Registry will see everything like by registering ones sound mark it must not hamper any other person’s mark or right.

Now in this blog we have discussed that what sound Trademarks can be registered by the Registry, now we will understand and look the sound marks which cannot be registered by the Registry and they are as follows-

All those simple pieces of music comprising just one or two notes.
Common songs used as chimes
All forms of popular music already in use in entertainment industry and other services
Nursery rhymes for children cannot be marked for product and services aimed at children.
Music which is closely associated with a particular region or country for a unique set of goods or services native to that area.

March 3, 2019March 3, 2019

What is the commencement of certificate of business?

There used to be a certificate for the commencement of the business. It was put into the full force until the Companies (Amendment) Ordinance, 2018. Under this ordinance until and unless a company has not filed a declaration within 180 days from the Company Registration that company cannot commence their business. This declaration states all the shareholders of the company and have paid the values of shares as what stated in the MOA of the company. So here in this blog we will discuss the format of this declaration, and documents required for this declaration and fees and penalties for complying with the orders.

Format

I am authorised by the Board of directors of the company through resolution Number______ dated_____ to sign this form and thereby declare that all the requirements of the Companies Act, 2013 and the Company Ordinance Amendment, (2018) and the rules made thereunder in respect of the subject matter of this form and matters incidental thereto have been complied with. I further declare that:

Whatever is stated in this form and in the attchments thereto is true, correct and complete and no information material to the subject matter of this form has been supressed or concealed and is as per the original records maintained by the company.
All the requierment attachment have been completely and legibly attached to this form.
Every subscriber to the MOA has paid the values of share agreed to be taken by him.
The company has filed with the Registrar a verification of its registered office as provided in sub section (2) of section 12.

Documents that have to be attached-

COI of the Company
PAN of the company
List of directors and shareholders of the company
Bnak statements of the Directors and shareholders of the company
ID proofs of the same
Receipt proof (if any)

Fee structure of the share certificate

Share capital involved

Fee to be paid

Less than 1 lakh	Rupees 200
1,00,000- 4,99,999	Rupees 300
5,00,000- 24,99,999	Rupees 400
25,00,000- 99,99,999	Rupees 500
1,00,00,000 or more	Rupees 600

What if you don’t comply with the Declaration

Penalty on the company- if the company do not file the declaration then there is a penalty of Rs. 15000/- on the company.

Penalty on directors- the defaulted Directors have to pay the penalty of INR 1000/- per day after the 180 days limit has been passed.

Company removal- if the registrar has the reasonable cause after the 180 days of incorporation then he can also strike off the company from the companies register.

Not filing a declaration according to the new amendment in the year 2018 is a hassle. Therefore to get relief from the hassle you can get in touch with BIATConsultant for further assistance and we can ensure that your company is registered hassle free and also ensures for its commencement declaration.

March 3, 2019March 3, 2019

How to rectify your already registered Trademark

Trademark rectification is a legal procedure that is applied to correct the error which has been made in the Trademark Application. Or this Application is filed to correct the error or to do changes in the already applied Trademark application. There are two prominent reasons for doing so and they are as follows:-

The Mark which might be wrongly registered.
Or if the Mark is still in the Trademark registry after it has been expired.

Trademark Rectification: Eligibility Criteria

Anyone whose Trademark is registered into registry in a wrong way.
Anyone whose Trademark application had the correct mark, but the data registered in the register was wrong.
Anyone whose Trademark registration period of 10 years is over and the mark ar still present.
Anyone who wants to cancel the Trademark registration.

For applying for Trademark rectification one must have Trademark registration of the same first after then only that person can apply for Trademark Rectification.

What are the grounds for trademark Rectification or Trademark Cancellation?

The Trademark registration was done without proper means. Or the Registration has been obtained through untrue representation of facts, or the Trademark has already been registered.
The Trademark is still inside the registry even after there is some case against it or that Trademark can create some confusion.
If there are changes, amendments or modifications needed to be made to a registered Trademark according to the most recent advancement.
If the Trademark is not being used by a person from over 5 years.
If the Trademark hasn’t been renewed after its prescribed time of 10 years.
If the trademark registration has been obtained through unscrupulous or by fraud.
If more classes is to be needed in the same Trademark.

Where is Trademark Rectification Application is filed?

In order to file the Trademark rectification application, it can be filed either physical by going to trademark registry or by it can also be filed online by filling a form. However more physical approach is recommended.

Trademark Rectification Procedure

Filing the application for Trademark rectification in a prescribed format, through prescribed fee and through prescribed individuals.
The application should include the case statement.
Once you have finished the application, you can submit it to either Registrar or IPAB.
After the registrar receives the application they are going to make contact with the registered proprietor of the mark to give counter statement.
As the counter statement arrives to the evidence stage, the parties are required to file their evidences in an affidavit form.
After this, a hearing happens and the order for subsequent removal or rectification for Trademark is passed.

February 2, 2019

What Is International Copyright And How To Register International Copyright

Copyright is a protection which is given to people or entiuties who want to take protection under Literary work, cinematographic work, Sound recording, Artistic work or in computer software in India or outside India. It encourages development of culture, science and innovation., along with assiting audiences with acess to the entertainment or knowledge they seek.

For those people who wants to seek copyright protection outside India, for those there is one Treaty named Berne Convention which is signed by various countries according to which copyright protection can be taken in various countries by filing single application.

According to Berne Convention for the protection of Literary and Artistic Work.- which was adopted globally in the year 1886. This safeguards the rights of creative individuals with regard to the work they produce.

There is anither convention named Universal Copyright Convention (UCC) which was adopted global;ly in the year 1952 in geneva and serves as an alternative to the Berne convention for the sttes which did not sign it but invested in participating in the multilateral copyright protection.

Trade Related aspects of Intellectual Property rights or TRIPS is global agreement overseen by the world Trade Organization. It lays minimum satndards for many forms of Intellectual proerty organization that is applicable to the citizens belonging to other WTO members.

Then again we have Indian Copyright Laws in place too they only provide pcopyright protectionh to the person in India only i.e. within the geographical and political borders of India.

January 16, 2019January 16, 2019

Difference Between Trademark Objection and Trademark opposition In India

Trademark objection and Trademark Opposition are two different things where trademark opposition is raised by the Registry itself after seeing the Deceptively similar Trademark Under Section 11 or Section 9 of the Trademarks Act, 1999, whereas Trademark opposition is raised by the third party when Brand name is published in a journal after accepting the Trademark by registry then for three + one month it is open for third parties to raise opposition if they find that Trademark to be deceptively similar with their Trademarks or there is a chance of causing confusion amongst the consumers then third parties can raise opposition by filing TM-O form followed by the prescribed fees.

Trademark objection is a part of Trademark examination process. In this process trademark examiner examines your trademark examination and issues Trade,mark examination report against your mark. In most of the cases objection is being raised by the registry whose reply is to be given within the specific time i.e. within 30 days calculated from the date of issuance of the examination report. Whereas trademark opposition is filed by the Third party, and it is mainly done after the advertisement of the acceptance of the mark, from the Trademark registry in trademark Journal.

What is Trademark objection?

Trademark objection is a form of preliminary negation which is issued by a Trademark examiner after examination of the trademark Application and which is raised by the registry on the mark which is deceptively similar or having lack of distinctiveness with the already registered mark. These objections are very common which is raised by the registry in almost every Application but can be clear by giving the proper representation before the Examiner.

For better guidance to clear Trademark objection it is recommended to take advice or hire a professional or trademark Attorney to represent your case, unless you know what you are doing. It is advised not to use sample format which is available online as it may result in rejection of your Trademark a sit does not give good impression in the mind of the registrar. It is advised to respond the Trademark reply within 30 days.

What is trademark opposition?

Trademark opposition is a legal proceeding which is instituted by Third Parties. It is like stealing or using somebody’s exclusive right or idea. It is to be raised within three months of publishing in a journal. Opposition is a third party action done by people having genuine interest in the Trademark or by a person who feels that Trademark Registration of that Trademark would be the decorum, market, or any affect related to the business of that person.

Opposition is the activity which is being increasing and easier than ever before. In case you applied for a Trademark, even though a Trademark examiner reviewed and approved it. Trademark opposition is a serious matter which should be kept in mind while registering a Trademark. Oppositions can sometimes lead to accusations and claims of infringement and monetary damages.

In case Trademark of an applicant is being objected then he/she should reply or respond to that within 2 months of the receipt of communication from the registrar of Trademarks.

While under Trademark objection there is no fees involved in replying whereas in filing of Trademark opposition there is prescribed fees is to be submitted t the registry. Objection reply should be filed within 1 month whereas counter statement of Opposition to be submitted within 2 months. Under trademark Objection process is under trademark registry only whereas under trademark opposition there is separate process from trademark registration. Under trademark objection no response will lead to removal or no appeal lies against rejection and acceptance is published in Trademark journal whereas in trademark opposition no response of Trademark opposition can lead to removal or appeal lies against the judgement,m and the judgement is communicated to the Parties.

For any further assistance take help of Trademark Attorney from BIAT consultant.

January 16, 2019January 16, 2019

D.M. entertainment Vs. Baby Gift House & ors. (MANU/ DE/ 2043/ 2010)

Daler Mehndi a famous Pop star from Punjab has created a niche audience and is immensely famous amongst Punjabi- Pop music lovers. And Appellant company was registered in 1996 to manage artist’s escalating career.

In this case Defendants were engaged in selling of miniature toys of Daler Mehndi which was causing heavy loss to the Plaintiffs. Therefore plaintiff company filed suit for permanent injunction for infringing artist right of Publicity and false endorsement leading to Passing Off.

The Plaintiff company had been assigned all the rights, titles, and interest in the personality of the artist along with the Trademark. And it was contended by the Plaintiff’s company that Defendants were illegally using the unassigned and unlicensed product and sold it to the consumers which creates confusion in the mind of consumers that the mark is somehow related to the Plaintiff and which commercially exploits the plaintiff’s economy and reputation. And hence, it was submitted that such a use leads to Passing off. It was further submitted that such use was committed without the permission from the Person or any other person authorized by him. And it clearly shows the intention of the Defendant to commercially exploit the Plaintiff.

Section 29 of the Trademarks Act, 1999 ( hereinafter the Act) lays down the aspect of infringement of trademark. It elucidates that when a person is using , in course of any Trademark, which identical or deceptively similar to a registered mark which he is not entitled or licensed to use shall be deemed to infringe on the rights of a lawful person who has the lawful right over the mark.

The Act does not give a specific description of Passing off as a result it has been derived through Judicial precedents, common law. Passing boff plea could be taken when mark is created which is deceptively similar mark and is created to create confusion in the mind of the consumers that results in the loss damage or loss of the business for the person or company who/which is the lawful owner of the trademark.

Character merchandising is an area of law which is unexplored in India. The first case that dealt in this was Star India Private Limited Vs. Leo Burnett India Pvt Ltd.. the courts in India in these earlier cases had not dealt with publicity rights. I this Compensatory cost of rs.1 Lakh was given to the plaintiff and in this the intent of the judiciary was clear.

January 13, 2019

Company Registration is now free of cost

Start ups are the best option for the youngsters to show their talent in the business. India is an exemplary place to start a business with a mob of most business efficient people. India is a country that has become great for investment.

Small business or people with excellent business ideas have many opportunities to incorporate a business with no cost. In this blog we will get to know the process of its incorporation and the step taken by government of India for small enterprise or business to legalise and expand their business.

Free of cost company incorporation

Company registration in India has now become effortless. Here are certain steps which are taken by the Government to make incorporation of companies easy and flexible and they are as follows-

Company can now be registered at zero cost up to an authorized cost of INR 20 Lakhs.
Company name filing will have a procedure.
Digital signature will not be required for company name approval.
Reserve Unique Name (RUN) is a new service that has been launched by the Government.
Director Name Approval (DIN) is not required for company name approval.
Director Identification number (DIN) is required in case of Spice form filing.

Now register all type of companies free of cost

Free incorporation of companies brings transformation that makes things simpler and easy for business in India. All forms of companies i.e. Private Limited company, public Limited Company, One person company etc is free of cost

There are some cost which is required to be paid by people those will register company now. Here are certain points under which some entities will be chargeable with a basic amount and they are follows-

Director Identification Number (DIN) fees of Rs. 500 per Director.
Digital Signature Certificate (DSC) fees of Rs. 600/- per promoter.
State stamp duty which comes around from Rs. 200/- to Rs. 10,000/-.
Professional fees comes around from ( Rs. 5000/- to 14,000/-).
Stamp paper and miscellaneous cost comes around to Rs. 500/- to Rs. 2000/- (depends on the number of members).

Easy steps to claim free of cost company registration

It is very easy to register a company in india if the name chosen by a company is unique and now it is free of cost as well. But you need to follow a basic rule and should hire a professional to guide you in best possible way. Since there is no Direct procedure, therefore it is required for a company or any individual who wants to register its company name should hire a professional as their signatures are required. This process is also less time consuming.

Therefore free of cost company registration is just like a revolutionary step which is taken by Government of India. Business registration is one of the major benefits of country’s wealth. India secures the position in the top 10 economic nation in the world. Things will be built in a better way.

January 13, 2019

Public Announcement of Corporate Insolvency

Once an application for Insolvency bankruptcy has been submitted under section 9, IBC states that immediately after submitting application for Interim resolution Professional has to be appointed and a public announcement has to be made regarding the same.

When is the public announcement made?

Right after the initiation of application for insolvency bankruptcy has been submitted then appointment of interim resolution professional announcement has to be made in public and if not done so then the Interim resolution professional himself has to make an announcement.

What constitutes in Public Announcement?

Public announcement includes following things:-

It should contain corporate debtor credentials in which name and address of the corporate debtor.
Credentials Of the authority ( whoever is the authority) in which the corporate debtor is registered or incorporated is to be provided.
The last date of submissions of the claims has to be there.
Details of interim resolution professional who is going to responsible for conducting the insolvency resolution procedure has to be there.
If there are any false and misleading claims, then information about this claim nad penalties given to them has to be published accordingly.
The closing date of insolvency resolution process to be mentioned.

How to make an announcement?

Form A of the schedule has to be filled to make a public announcement.
The announcement is to be publicise:-

In English language and in regional language in news paper. And this newspaper should have a wide circulation at the corporate office and the principle office of the corporate debtor. And the circulation should be everywhere where corporate debtor conducted his business.
If there is a website of corporate debtor, then there also announcement has to be made.
If there is a website specified for the purpose of public announcement, then there also public announcement has to be made.

The announcement shall provide the last date of submission of the proofs of claims by the operational financial creditors. The date is to be 14 days from the appointment of Interim Resolution Professional.

The expenses depends on the applicant to bear them or else the same can be reimbursed by the creditor of companies to a particular cost.

January 13, 2019January 13, 2019

What is Patent Cooperation Treaty(PCT)

The Patent Cooperation Treaty (PCT) is an international treaty administered by the World Intellectual Property Organization (WIPO). PCT system makes it possible for every Patent holder to obtain its Patent protection in several countries by just filing single application through PCT.

The granting of patents remain under the national or regional legislation of the national or regional Patent offices. It is called the “ national Phase”.

In the national phase, each patent office is responsible for processing the application in accordance with its national patent laws, and for deciding whether to grant patent protection.

Advantages of Patent Cooperation Treaty

Applicants and patent offices of contracting states benefit from uniform formality requirements, international search, supplementary international search and preliminary examination reports, and centralised international publication.

Who can file PCT application

The visegrad Patent Institute is appointed as an international Searching Authority ( ISA) and an International Preliminary Examination Authority (IPEA) under the PCT system for applicants who are nationals or residents of Czech republic, Hungary, The republic of Poland and the Slovak republic. The two letter code representing the visegrad Patent institute is XV.

How to file your PCT Application

Requests must be made on a printed form or be presented as a computer printout, unless the receiving office or WIPO’s website. A special programme for electronic (E-PCT) filing is available from WIPO.

Where to file your PCT Application

Applicants who wish to file an international PCT application have to use the national office (which acts as a receiving office) in the country of which they are national or resident or the international bureau as a receiving office.