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January 13, 2019

Procedure for Foreign Companies To Register Its Trademark In India?

Registration of Trademark is one of the important factor across the globe. And many foreign and domestic applicants are applying for its protection.

The Madrid Protocol agreement governs the International Trademark registration under which a mark can be registered internationally in multiple countries.

Also Read : Procedure For Registering Trademark In India ?

Certain countries have been declared as convention countries by India and accoreded similar privileges as those granted to the citizens of India. A person or a company from a convention country can apply for Trademark registration in India within 60 months of making an application in the home country.

If accepted, such a foreign national will be deemed to have registered his/ her Trademark in India from the same date on which he or she made application in the home country.
In case an application have been made for registration of trademark in more than one country, a period of 6 months would be reckoned from the date on which the earlier or earliest of those applications were made.

What is the eligibility criteria for International Trademark Registration

The following are the main requirement for obtaining international trademark in India?

The applicant should be an Indian national or domiciled in India.
The Applicant must have the real business in India.
The Applicant must have Trademark application/ trademark registration of your home country. It will be used as the basic mark for the International registration.
The applicant must choose one or more countries which are member countries of the Madrid Protocol Agreement.

What is the procedure for filing an International Trademark Application

The Trademark Application/ registration of home country is known as a basic mark which is submitted with the international Trademark Application.
An International Trademark application needs to be filed through the office of origin along with the basic mark application/ registration. Te application is forwarded to WIPO after certifying the international application.
The WIPO formally examine the international application, if approved, the mark will record in the international register and publish in t5he WIPO Gazette. After which they issue a certificate of registration and notify the contracting IP offices.
The Trademark offices in which you want to protect you mark will conduct further substantive examination under domestic law. Within 12 to 18 months either grant or refuse the Trademark protection. The decision of the cou8ntries will not affect the decision of other designated countries.

What are the benefits of filing international Trademark Application under the Madrid protocol?

Madrid Protocol is a one stop solution to obtain trademark protection in multiple markets.
Outweigh the costs of the international registration as compared to individual foreign filings.
Subsequent changes like renewal, change of name or address or ownership are cost effective with single procedure and fee payment. It is time efficient bas well.

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January 13, 2019

Assignment of Copyright in India

Copyright is a unique kind of Intellectual Property right which gives protection to original creator or author. Copyright is an exclusive right to reproduce or authorize another to reproduce artistic, dramatic, literary, or musical works. It is essential that work must show a minimum level of creativity and originality.

Once the copyright is registered by the owner that cannot be reproduced or published without the permission of the creator.

Also Read : How To Apply For Copyright Registration In India ?

Crucial points for Copyright Assignment

The ownership of the copyright may be transferred wholly or partially.
While assigning copyright to the third party the owner must specify the amount of copyright. And that third party cannot further assign that copyright without the permission of the owner.
In case the assignment of copyright will take place in future then that assignment shall take effect only when the work comes into existence.
The assignment of copyright is legally valid only when it is signed by the assignor or by his authorised signatory.
The rights of the assignor of copyright shall be diluted to the extents of the rights assigned to the third party.
The assignment deed shall specify the territorial extent of such assignment.
The assignment shall further specify the assigned rights and the amount of royalty paid.
The assignment agreement shall be subject to revision, termination, extension on terms mutually agreed upon parties.
In case the assignee fails to exercise its power within 1 year of assignment then the assignment in respect of such right shall be deemed to be lapsed.
If the assignment is contrary to the assignment which is being mutually agreed by the parties then it shall deemed to be as void.
In case of Manuscript, copyright is a personal property and if it is to be transmitted then it can transmitted by testamentary disposition.
The equitable assignment is just the agreement to assign and not the assignment.
After the transmission of the copyright the assignee will get right of translation, adaptation, dramatic and filmmaking in the work.

The basic motive behind the introduction of copyright assignment is to give benefits of ownership and distribution to the creator of the work , however the copyright assignment cannot be used to deprive the original creator of his original creation.

January 13, 2019

Is Independent Director really an independent person?

In the age of start-ups there are Directors who take up the charge of the company as they manage and controls the whole of the undertaking efficiently.

Directors are the representatives of the investors and ensures that the company is moving inna right direction to achieve its objectives. For every startup Board of Directors takes necessary steps to ensure that there is no mismanagement in the company.

Independent Director

Independent Directors are the Directors who are brought from outside to participate in Board Meeting of a company and must not be having any material or pecuniary interest in the Company. Only those who are not having any material or Pecuniary interest in the Company determined by the Board to Directors to become Independent Director of the Company. He is given sitting fees in the Board meetings of the Company.

Appointment of Independent Directors

Appointment of Independent Directors in a Listed and Unlisted Companies is very easy and the same is approves in the meeting of shareholders and Independent Directors are appointed as per the provisions under Companies Act, 2013 and they are as follows-

For Listed Companies- at least one third of the total Directors should be independent Directors.

For unlisted Companies- At least there should be two Directors who are Independent in case of unlisted companies.

Public companies should be having paid up share capital of 10 crores or more.
Public companies must be having turnover of Rs. 100 crores or more.
And public companies who should be having in aggregate, outstanding loans, debentures, and deposits exceeding 50 crore Rupees or more.

Term of Appointment

The appointment is for a term of 5 years commencing from the date of appointment and ending on 6th Annual general meeting of the company following the date of appointment. Such appointment can be terminated at any point of time according to the Companies Act, 2013.

The time period of the Independent Director must not exceed two consecutive periods of 5 years each and can be extended for a second term only after passing a special resolution.

Re-appointment of Independent director

According to the companies Act, 2013 Independent Directors can be reappointed only after the expiry of the second term but such reappointment can be done only after the expiry of three years.

Independent Directors always makes sure that the affairs of the company are conducted in a best way so that organisational objectives can be achieved easily.

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January 2, 2019

How to Transfer shares in a Private Limited companies

transfer of shares in private limited company

Transferring shares in a Private Limited Company is a simple one, in a Private Limited company it is the responsibility of the shareholders to determine the ownership of the company and for this very reason transferring of shares is important. And in this blog you will going to understand or answer to the question that how to transfer shares in a Private Limited Company–

Share transfer restrictions-

There are following restrictions which are involved in trasferring of the shares in a private Limited Company and those restrictions are mentioned under their Articles of association of the company. There are two kinds of share transfer restrictions that are described in AOA and those are as follows-

Power of Directors to refuse- eventually, every decision regarding the future of the company lies with the Directors of the Company, and if there is certain circumstance in AOA which is not being followed then the Directors can refuse to transfer the shares.

Rights of Pre-emption- if any shareholder wants to share its share either whole or part of its shares then before selling it to outside it is their duty to first ask existing members or shareholders.

If there is any private agreement between the shareholders regarding the transfer of the shares then they are not to be considered as legally binding upon them in any form.

Process of transferring shares are as follows-

Firstly one should see that or review the Articles of association for any sort of restriction associated with share transferee.
Secondly notice is to be given to the Board of Directors of the company for its intention.
Then price determination of shares is to be done. Evaluation of the price of shares is being done according to the clause mentioned in Articles of Association of the company.
Then shares must be firstly offered to the current members of the company.
The company should provide shareholders its share availability, the purchase date of shares and the price of the shares.

Selling of a Private Company shares

Firstly a proper transfer deed is to be prepared in a proper and prescribed format.
Then this deed is to be signed by the transferor and transferee of the shares.
Then this ded is to be stamped according to the Indian Stamp Act.
Then witness has to sign the deed who were present at the time of step 2.
Then share deed along with the share certificate have to be forwarded to the Board of Directors for approval.
And lastly if directors gives approval for the selling of the shares, then new share certificate is generated in the name of one in whose name the share is being transferred.

December 21, 2018

How to copyright a logo and a name in India

In India Copyright can be protected by either Copyright Registration or Trademark Registration process. There are different sets of steps which are required to be followed for obtaining the Trademark and Copyright Registration which we will discuss in the course of this blog.

By obtaining Copyright Registration and Trademark registration Brand value of a product is being protected. How to copyright a logo is itself confusing among the consumers.

Let us first clear the biggest misconception that logo and names can be protected with the copyright registration. Although the Brand name and a logo can be registered under a Trademark Act. therefore Copyright Registration cannot be sought or done with the Name of the Brand, but the logo can be done or protected under both Copyright and a Trademark, since it comes under Artistic work and therefore it can be protected under both Copyright and Trademark.

Let us discuss the procedure of obtaining the Trademark registration in India for the Brand name and the logo. Here are the steps which are involved in this procedure-

Firstly we do Free Trademark search of the Brand name to check that whether that brand name name is available or not. A name is available when a similar name or logo is not already registered.
Then Application is to be made by our professionals for the Trademark Registration and shall be filed with the department.
The there is mandatory waiting of 30 days in which in case of any discrepancies objections can be raised from the registry side.
Then once the Application is accepted by the registry the it will be published in the Journal for a total period of 4 months. During this period the third party opposition will be invited.
Then finally Trademark Registration is being done by the Registry if there is no Opposition from the third party.

In the same way you can make application for the protection of the logo under Trademark laws. After getting Trademark registration following steps has to be taken for Copyright Registration of the Logo. for Copyright registration following steps has to be taken:-

Firstly Copyright search has be conducted.
Then Application is to be made for Copyright Registration.
The same 30 days mandatory wait is to be done for objections to come from the Registry.
In case no objection the application is further forwarded to the examiner.
If no discrepancy is found then registration of copyright is approved.
Finally certification of registration of Copyright is granted to the Applicant.

Conclusion

In any case you are required to obtain the Trademark registration in India for both the logo and the name. But of you believe that your logo consist of some unique creation make sure to protect it with Copyright Registration in India.

December 20, 2018December 20, 2018

Types of Copyright in India

Copyright is a a form of intellectual Property which gives exclusive right to the Authors and creators of original work, and also it gives economic rights to the author which includes right to Copy or publication of a work, or any substantial part of asset.

Copyright of literary work

Books, poems and all literary work which is written by a author must take copyright of it because just writing the book and saving it in a Computer or hard disk does not make you a legal owner of that Book. therefore it is important to take copyright protection of each and every Literary work which is your original creation to do copyright of the same.

Copyright of Cinematography

Visual Collection of any moving object with sound is termed as Cinematographic film. It takes or requires lot of hard work to produce a cinema, and therefore there are lots of people who are involved in its production. And therefore the Producer of it can claim for the copyright of a Cinematographic Cinema. There are certain rights which are provided to the Producer and they are as follows:-

To sell or resell it or give it on hire
To make a copy, Photograph or produce it in parts.
Producer is the only person who will publish the film in public and in that sound recording of a movie is not covered.
Also the artists, the movie is not protected by the copyright of the film.

Copyright of Painting

Painting is an Artistic work and can be copyrighted, whoever makes that painting is said to be the original creation of that person.the person who buys a painting from an exhibition is not said to be the original creator of that painting unless that person has granted no objection certificate from its original creator.

Copyright of a Software

Software Developer uses Software Copyright and proprietary software companies to prevent unauthorised copying of their copyright.

Points of Copyright to keep in mind while remixing a song

Remix of a song is costlier to do a copyright of a song as Remix of a song is just a mix of songs which already there in market and not the original work of the creator.

There are certain issues which are faced in Copyright of a Music

Reproduce work in any form
Issue copy of the work
Perform the work in public
Make any films
Sound recording in the work
Translation of that work

December 18, 2018December 18, 2018

Partnership Firm Registration in India

Partnership is a group business form where people come together and put their ideas forward towards business with mutual understanding. Partnership can be between individuals, Business Groups, Government and many more Organizational Bodies.

Steps of Partnership registration Firm in India

Choose a Partnership Name- Partners are allowed to pick any name for their firm subject to the accompanying Principles. The names of a firm must not include words like crown, emperor, empress, empire, or words communicating or inferring the authorise, endorsement or support of the Government.

Create a Partnership deed- Then partnership Deed is to be prepared by all the partners of the firm to avail the benefits of Partnership. The following are the fundamental attributes of an Organization Deed-

Nature of Business to be carried on
Name and address of the firm as well as of the Partners
Duration of partnership
Capital contribution by each partner
Date of commencement of business
Profit sharing ratio among the partners

Consider whether extra statements are required- Partners may likewise say any extra statements.

Salaries, commissions and so forth, assuming any, payable to accomplices.
Method of getting ready records and game plan review.
Division of errand and duty , to be specific the obligation forces and commitments of the considerable number of accomplices.
The principles to be followed if there should be an occurrence of retirement, passing and and confirmation of an accomplice.

Choose whether or not to enlist the Partnership firm- then partners have to choose whether they should enlist the partnership Firm or not.

Application for Registration of Partnership Firm in Form 1-

Properly filled example of Affidavit
Ensure True Copy of Partnership deed
Proprietorship verification of the foremost place of business of rent understanding thereof
Sign the application, the application and proclamation must be marked by everyone of the accomplices, or by their specialist particularly approved for this benefit.

Anticipate that the registration procedure will continue formally- one should record the passage of the announcement in an enlist called the register of the firm and issue a certificate of registration. The Registrar keeps finished and forward data about all enrolled firm.

December 15, 2018

How does a Corporate Debtor File Petition For Insolvency Petition

Insolvency and Bankruptcy Code, 2016 is meant to make sure that the Corporate Debtors and Financial/Operational Creditors pay their dues in a fair and efficient manner.

Corporate Debtor is a Corporate Applicant

Lets before discussing the Filing of Petition by Corporate Debtor, first discuss about what is Corporate Applicant. Corporate Applicant can be referred to any of the following person-

A Corporate Debtor
A Person who is partnered up with the Corporate Debtor who is given right to file for Insolvency Resolution Procedure under the MOA and AOA of the Company.
A person who is given the chance of handling the operations and resources of the Corporate Debtor.
A person who holds control and supervises the financial operations of the Corporate Debtor.

The Process of filing the insolvency Application

Filing the Application in the form prescribed under the IBC, 2016- This form should be prepared and submitted to the Adjudicating Authority along with the Fees of Rs. 25,000/-.

Along with the Application following documents have to be provided as well-

Information pertaining to the account books for the prescribed period.
Information pertaining to resolution professional as an Interim resolution professional.
A resolution that has to be passed by about 3/4th of the Partners/Shareholders of the Company Debtors that approve the Insolvency resolution Professional

For initiating the insolvency Resolution Process form 6 has to be filed by the Applicant and the documents and information should be attached along with this.
If the Petition is filed for initiating the Insolvency resolution Process (in NCLT), then within 14 days , the authority has either accept and admit the application or reject it. Once the application is admitted then the Insolvency Resolution process begin.
If the application suffers from either misInformation or Missing application then the adjudicating authority shall reject the application.
If the application is rejected by the adjudicating authority then they will be given 7 days to correct the errors. If the errors is rectified then after the prescribed period adjudicating authority is going to accept the application. And if not then the application is rejected without any retries.

Necessary voting is needed in order to file the application, and the way to submit the application is very easy.

December 14, 2018

What is Committee of Creditors under Insolvency and Bankruptcy Code

When any person finds himself or herself unable to repay the Debt then they owe to the Financial or Operational Creditors, and then that person who is owing money is deemed to be insolvent.

However from being insolvent to insolvency Resolution is not that easy, there are multiple factors that play a major role and one of the major role is played by the Committee of Creditors.

Section 9 and Company of Creditors

Once there is no positive solution for Section 8 Demand Notice, the Operational financial creditors can file a petition to NCLT to start the process of Insolvency Procedure.

The Committee of Creditors will the decide whether to keep or pursue with that Resolution Professional or not.

The Final approval of the Insolvency Resolution plan is subjective voting percentage from the Committee of Creditors. In Insolvency and Bankruptcy Code the collective decision of the 75% of the committee was taken into account whereas it has now reduced to 66%.

Committee of Creditors: The Definition

Committee of Creditors is a committee consists of a representative of Financial/ Operational creditors to whom Corporate debtors owes a Debt to. The purpose of Committee of Creditors is as follows:-

Making decisions in the routine tasks associated with corporate Insolvency Resolution Process.
Approving or rejecting the Insolvency Resolution Plan.
Deciding upon the liquidation of the Corporate Debtor.

The Creditor of the committee is mostly comprised of Financial creditors rather than operational Creditors.

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December 12, 2018

NOTICE UNDER SECTION 142(1) OF INCOME TAX ACT 1961

Notice under section 142(1) of the Income Tax act is issued by a tax authority generally after ITR is filed and before Income tax assessment in the form of Inquiry.

Generally during the course of Assessment the Assessing officer sends the notice for demanding documents , books ,other documents or details for verifications and the Assessee is bound to produce details before assessing authority.

In case of Non- filing of Income tax return also Notice under section 142(1) is received and thereunder time frame is given to file ITR .

PENALTY

In case of non compliance the AO has to power to levy penalty of Rs. 10000/- for each failure under section 271(b)

PROSECUTION

Prosecution under section 276D for non compliance of section 142(10 is imprisonment upto 1 year with or without fine

NOTICE UNDER SECTION 143(2)

Notice under section 143(2) is issued to Assessee when case is taken under scrutiny by Income tax authority.

When notice under section 143(2) is issued and also Notice Under section 142(1) is issued to Assessee , informations as required time to time by assessing authority is submitted to Assessing authority who based on information submitted assess the case and issues final order for assessment.