Monthly Archives: November 2017

Why Do You Need to Register a Trade Mark?

Recognition of a Trade Mark or a Brand is created through consistent quality products/services, advertising/marketing campaigns, brand recall, geographic presence, sales team, positioning, among many other parameters. However, with growing competition, every market player is required to have an edge over the other in order to win the race of profitability, along with gaining trust of the consumer as well as to build a strong reputation and goodwill for its goods/services so as to maintain its position in the Market. Registration of a Trade Mark gives one such exclusive competitive advantage, wherein, for instance, Trade Marks such as the ‘arches’ of  or the ‘swoosh’ of  creates an impact on the consumer’s mind, and easily connects with the masses of consumers worldwide. However, there are lot of chances that these Trade Marks are infringed, duplicated or counterfeited, hampering the business. In order to prevent these incidents, Registration of Trade Marks provides a strong protection against such incidents.  There are other various reasons for registering Trade Mark that can be categorised as:

LEGAL IMPORTANCE

Trade Mark helps in identifying the source of origin of goods/ services, the very first step taken by the company is to have a distinctive Trade Mark that becomes a crucial factor for business identity. With successful Trade Mark and brand comes a greater risk or misuse of mark or stealing of mark by the competitors.

Registering a Trade Mark can help avoid various sorts of legal proceedings that may otherwise run the business into loss and create undesired ownership/reputation issues/loss. In the event of unfair competition, counterfeit, or fraud; owner of a Trade Mark (TM) may rightfully seek the doors of court for injunction[1], wherein adopting or commercially exploiting a pre-existing Trade Mark may also lead to trial and strong damages. This statutory right extends to 10 years and can be re-registered, wherein one can be a perpetual owner of his/her Trade Mark, 1999[2] and keep on taking advantages provided by the registered Trade Mark.

 

SIGNIFICANCE OF REGISTERED TRADE MARK AMONG CONSUMERS

A registered Trademark i.e.  associates a comprehensive value to the goods and services of the businesses that are registered by the Trade Mark registry, assuring the quality of product or services. This influences the consumer’s purchasing decisions.[3] Registration of a Trade Mark affirms the reliability of the product/services, which is later converted to consumer loyalty. For example, a consumer won’t think twice before choosing an  product/services over XYZ product due to its assurance of good quality, goodwill and brand value that ITC has built over the years through various actions/initiatives, one of which being – registration and enforcement of their Trade Mark. We can say that Registration of Trade Mark makes the business unique and distinguishing from others, which attracts customer’s attention and therefore prevents any sort of market confusion

COMMERCIAL ASPECT

Registration of Trade Mark by the Trade Mark Office compliments a business strategy by giving it a statutory right to use its mark (business name/logo) exclusively and gives right to restrain others from using the same or similar mark.[4] Hence, bare minimum due diligence is a prerequisite before filing a trademark application in the Trade Mark Office. Moreover, this provision of exclusive right not only gives the right to the owner to sue the infringers but also builds its face value, brand value and reputation. A registered Trade Mark has the biggest role to play in commercial aspect of the business.

An extensive use and success of the goods/services through word of mouth, consumer’s acceptance, Internet or social media etc, which helps in attracting more consumers, leads to making of a trade Mark in to a brand identity of the business, which becomes very important to be protected from its misuse. In case these brands are infringed, the business can be expected to incur a huge amount of loss on account of creation of confusion in the market place deviating a large section of consumers, which in turn damages the brand, reputation and business as a whole. Also, a Registered Trade Mark can attain so much value apart from the core business that it paves way for brand expansion. For example, AMUL-THE TASTE OF INDIA,  has been the most successful brand with respect to dairy products, its promotion and quality of goods have been up to the mark since its inception i.e. 1965. Thus, its registration in the Trade Mark Office and wide promotion through its Website www.amul.com has given it a higher brand value, reputation as well greater protection against the infringer. The presence of awareness of the brand all over the world has made it a ‘well – Known mark’[5] and has helped it to achieve a Trans-border Reputation[6], thereby giving it a protection all over the world.

Further, Trademarks are an important part of the merger and acquisition process, and can contribute to the overall value of a business. Trademark validation not only provides both sides of the deal with the necessary transparency to assess this value, but also prevents the occurrence of any unexpected issues after the merger or acquisition has been completed.

Because of the above reasons, the potential investors will always be interested in a business that has a registered Trade Mark for its goods/services. A trademark only holds value if it has been properly registered and maintained. Therefore, a registered Trade Mark not only affirms the security, but also aids clarity in any merger or franchising of the business, positively influencing its perceived value.

 

CONCLUSION

A brand/trademark is built based on a good quality of service or product, and through accessibility of the service/product to consumers across globe, which has become easier over the years through Internet. This brand value or value of the trade mark, opens up a window for a business to enter into a different line of goods/products. What can be a more substantial example for this than the Trade Mark ‘Kolkata Knight Riders’, which began as an IPL team for cricket that shot to fame so much so that it became a brand in itself attaining a value of about $ 3.8 Billion. This large recognition and huge brand value paved way for the owner to enter into different line of business such as sale of KKR sports jerseys. Moreover, anyone who intends to sell the same in the name of KKR, has to seek permission from the owner.

Now a days, building a brand is easier, but maintaining the brand from external interference (counterfeiters/infringers) is a bigger problem. This external interference not only infringes the product and makes the company suffer huge loss, but also leads to lower the reputation of the company, thereby having a negative impact on the reliability and faith of consumers for the goods/services of a product.

Registered trademarks are one of the few assets of a business that can provide you with a long-term competitive advantage through protection, especially in today’s highly competitive and brand-driven marketplace.

Therefore, to summarize, a Trade Mark plays a vital role preventing unfair competition and confusion in the market, a strong marketing strategy and in identifying the source of the product/services. A registered Trade Mark, thus increases reliability of a business.

References:

[1] Hearst Corporation Vs Dalal Street Communication Ltd., 1996 PTR 1 (Cal)

[2] Section 25(1) of The Trade Mark Act,1999.

[3] Qualitex Co. v. Jacobson Products Co, 514 U.S. 159 (1995).

[4] Section 29 of The Trade Mark Act, 1999;

[5] OA/56/2011/TM/KOL

[6] Whirlpool &Anr vs. N.R. Dongre, (1996) PTC 415 (Del).

[7] http://www.trademarkeagle.co.uk/why-register-a-trademark

[8] https://www.wardtrademarks.com/why-you-should-register-your-trade-mark/

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Effect of Acquiescence on Trademark

The dictionary meaning of acquiescence is the reluctant acceptance of something without protest.

The Trade Marks Act 1999 talks about the “acquiescence” under Section 33 of the Act and is based on the well settled principle-

 “Equity aids the vigilant, not those who slumber on their rights.”

It means a person who has been wronged must act relatively swiftly to preserve his rights.

The proprietor of the trade mark must remain vigilant about any unauthorized use of his mark by others and if he doesn’t, he would not be entitled to claim any relief under the Act due to inaction on his part.

Condition prior to Trade Mark Act 1999

Prior to the provisions in Trade Marks Act, 1999 there was not any clear and precise law regarding the defense of acquiescence under the Trade Marks Act, 1940 and under the Trade and Merchandise Act, 1958 and the scope of acquiescence was based on judicial pronouncements. Under Trade Mark Act, 1940 the court permitted the defendant to take the defense of acquiescence under ‘special circumstances’ in Section 10(2) of the 1940 Act which says,“In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of trade mark which are identical or nearly resemble each other in respect of the same goods or description of goods subject to such conditions and limitations, if any, as the registrar may think fit to impose.

 Under Trade and Merchandise Act, 1958 the plea of acquiescence can be availed by the defendant under the ‘special circumstance’ under clause (1) of sub-section (b) of Section 30 of 1958 Act which is as follows –

Section 30 – Acts not constituting infringement :- (1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to use of a registered trade mark – (b) the use by a person of a trade mark in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or bulk of which they form part, the registered proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed or obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark.

 Acquiescence under Trade Marks Act 1999

 The act came into force in 2003 and it clearly lays down the provision for acquiescence under Section 33 which is mainly evolved from the various opinions and judgments of the courts over the years.

 Section 33– Effect of acquiescence:

(1) Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trademark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark—

(a) to apply for a declaration that the registration of the later trade mark is invalid, or

(b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used unless the registration of the later trade mark was not applied in good faith.

(2) Where sub-section (1) applies, the proprietor of the later trade mark is not entitled to oppose the use of the earlier trade mark, or as the case may be, the exploitation of the earlier right, notwithstanding that the earlier trade mark may no longer be invoked against his later trademark.

Section 33 of the Act in simple words allows the defendant to take the plea of ‘acquiescence’ against the proprietor of the trademark for his ignorance and inaction even after being aware of the use of the proprietor mark in good faith for the period of continuous five years.

The Supreme Court in the Ramdev Food Products Ltd. Vs. Arvind Rambhai Patel [AIR 2006 SC 3304] crystallized the law on the point as – The principle of acquiescence would apply where the plaintiffs found (i) sitting by or allowing another to invade the rights and spend money on it, (ii) it is a course of conduct inconsistent with the claim for exclusive rights for trademark, trade name, etc.

The Delhi High Court in Jolen Inc. Vs. Doctor & Company [2002 (24) PTC 29 (Del)] observed that the defendant can avail the plea of acquiescence not only if he proves that the plaintiff is standing by but he has also to prove that the plaintiff has turned a blind eye for a substantial period. Bombay High Court in the case of Emcure Pharmaceuticals Ltd. Vs. Corona Remedies Pvt. Ltd. upheld that a mere failure to sue without a positive act of encouragement is no defense and is no acquiescence.

The exception to this section is in the words “good faith”. If the proprietor of the mark is able to prove that the defendant adopted the mark in bad faith, to trade upon the reputation and goodwill of the proprietor’s mark for commercial gains, then the plea of acquiescence doesn’t hold good. In the case of  M/s. Hindustan Pencils Pvt. Ltd. Vs. M/s. India Stationary Products Co. Ltd. [AIR 1990 Del. 19]- Delhi High Court held, if the user even after knowing that he is violating the right of the owner of the trademark, acts fraudulently, the relief of injunction is not denied.

Thus a mere delay in filing a suit would not amount to acquiescence. If the plaintiff even being aware of the use of a similar mark sits idle and allows the defendant to grow and popularize its business under the similar mark over a substantial period of time. However, it is clear that the defendant can only be allowed to raise the plea of acquiescence if he proves that he adopted the mark in good faith and without knowledge of the earlier similar mark being in use. Acquiescence can be a ground for granting injunction and factors such as knowledge of unauthorized use of the mark, ignorance, and inaction by the proprietor for a substantial period of time, mala fide intentions of the user are to be considered while deciding the plea of acquiescence, thereby, not only allowing the defendant to use the mark concurrently, but also to get the mark registered!

About the author:     Ankit Chaudhary, Faculty of Law, Delhi University, intern at Khurana & Khurana Advocates and IP Attorneys and can be reached at info@khuranaandkhurana.com

Freedom of Panorama

Freedom of panorama is a derived from German word Panoramafreiheit. It is the right of individual to publish photographs of the public buildings and the public structures which are attached to the public places permanently and is one of the exception of the Copyright law. “French-Italian model” and the “German-English model” are the two modular frameworks on which the freedom of panorama is based. On one hand, where the French-Italian model does not lay down the restrictions on the copyright law, the German-English model, on the other hand, states freedom of panorama as an exception to the copyright law. Indian Copyright Act has incorporated the German-English model with certain modifications to suit the Indian scenario.

Article 5 of the Berne Convention,1886 has laid down the “principle of assimilation” which means that countries who are the members of the convention enjoy the rights as laid down in the convention along with the national law of the State. Article 17 of the Convention has permitted the States to enact necessary legislation to prevent the infringement of any work thereby following one of the essential principles of the International Law. Article 9 of the Berne Convention mentions that audio and visual reproduction of copyrighted work amounts to the copyright infringement. Article 9 of the Berne Convention is contradictory to the Section 52 of the Copyright Act, 1957 as it follows the principle of assimilation and the basic principles of the International Law.Italian Copyright law follows the French-Italian model by recognizing the freedom of panorama and states that the photographs and video recording of sculptures, artistic work and architectural structures having public access, will not amount to copyright infringement if such a reproduction is used only for personal purpose but, if it such photographs or video recordings are used commercially, it will amount to the copyright infringement.

For example: – Photography of the Eiffel Tower at night amounts to copyright violation. However, photography during the daytime is rights-free and does not amount to infringement. The interesting explanation to such a law in France is that the in 1923 the creator and the owner of the copyright of the Eiffel Tower died and the Eiffel Tower entered public domain in the year 1993. Thus, in 1999 Las Vegas had its own Eiffel Tower. Although, the copyright expired in 1993 the lights in the Tower were installed in the year 1985, adding to the aesthetic beauty of the pre-existing structure and classifying the tower’s light display as an “art work” within the purview of Copyright Laws. Hence, the night-time photography of Eiffel Tower will amount to the copyright infringement, as it does not fall within the public domain till date.[1]

Looking into the Indian scenario, even though there is no provision explicitly defining the Freedom of Panorama, the Copyright Act, 1957 under Section 52 sub-clause (t) and sub-clause (u) has provided for the provision related to the Freedom of Panorama. Section 52(t) states that the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or any other work of artistic craftsmanship, permanently situated in a public place or any premises to which the public has access, will not amount to copyright infringement. Section 52(u) has included the cinematographic films within the ambit of the freedom of panorama.According to sub-clause (u)the following inclusions in the cinematographic films does not amount to the copyright infringement:-

  • Any artistic work which is situated permanently in a place which can be accessed by the public.
  • Any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.
  • Use of the author’s artistic work where the author is not the copyright owner or it was the author’s commissioned
  • Reconstruction of any structure or building in accordance with the architectural plans by which the building was constructed.

All in all, Section 52 of the Copyright Act, 1957 has resolved a potential conflict which could have arisen, if any architectural structure or any sculpture displayed in the public is photographed or used in a cinematographic film without the prior permission of the artist.In practice, Section 52 does conflict with certain aspects of the copyright law yet, it has been seen that Section 52 prevails over the other provisions.

Neelkant Darshan was a short feature film shot in the Akshardham Temple where photography and videography is prohibited. Section 14(c)(i)(A) of the Copyright Act, 1957 provides the architects and the author of an architectural work have the right to protect their work from being stored in any medium by electronic means. A tourist if photographs the Akshardham Temple by virtue of Section 14(c)(i)(A) will be deemed to infringe the copyright. However, by virtue of Section 52 of the Copyright Act, 1957, such photography and videography will not amount to infringement of copyright as the temple is situated permanently in an area easily assessable to the public.Therefore, it is quite evident that Copyright law is clear about the concept of Freedom of Panorama; however, conflict may arise if a building is trademarked and recorded in a video!

About the Author: Trishala Sanyal, intern AKK New Law Academy Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

Reference:

[1] https://petapixel.com/2017/10/14/photos-eiffel-tower-night-illegal/

Copyright Protection to Architectural Works

Issue of infringement of architectural works requires understanding of protection of works when they are reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

For example: if an architect uses a part of the architectural design of another architect in order to build his own building, without the prior permission of the architect who owns the copyright from which the other architect derives his work, it would amount to infringement. This permission may be obtained through an assignment or a license for the use of the same. However, not all inspiration amounts to infringement of copyright. Copyright law allows portions of a copyrighted work to be used without the author’s permission for specific purposes such as criticism, comment, news reporting, research, teaching etc. under the doctrine of fair use which is often used as a defense.

The protection of architectural works through Copyright against infringement and imitation is provided in the copyright act 1957. Therefore answer to the question of whether architects could protect their “Architectural works” from infringement? Is yes. Discussion on what is protected as part of Copyright of a building, needs clear understanding of what is a copyright, what is an architectural work, and is it an work of art or not?

Architectural works were not afforded legal protection or any form of copyright protection till the “Berne Convention” of 1908 was revised, after which it was included in the ambit of “literary and artistic” works protected at international level.

Despite architectural works being considered artistic works, some structures have been kept outside the scope of copyright protection, like bridges, dams, tents, boats are not considered “buildings”.

 Freedom of Panorama

“Freedom of Panorama” is an exception to the other provisions of the Copyright Act, 1957. The term has not been explicitly incorporated in the Act but Section 52 of the Copyright Act interprets similar meaning to the terminology and lays down certain acts which do not lead to copyright infringement. The section is explained by the following points:-

  • Any painting, engraving, drawing or the display of a work of architecture, photograph of a work of architecture can be made or published and has been incorporated under section 52 (1)(s).
  • The making and publishing of a drawing, painting, photograph of a sculpture, or other artistic work, engraving or any other work of artistic craftsmanship, if such work is situated in a public place permanently or any premises where the public has an access.
  • Any artistic work which is permanently situated in a public place or where the public has an access is included in a cinematograph film.
  • It is in this regard that the Indian Copyright Law can be appreciated, as against European and American copyright law which allows this freedom only if the copyrighted work is used for non-commercial or educational purposes, the Indian law is not subject to such demarcations.

Protection under the ambit of Copyright Act

“In general, any original work made by a person is eligible for copyright protection. Originality refers to the fact that an author must have created the work through the application of the author’s own creativity and labour. In addition, such work must have been reduced to a material form. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright, although it is advised that the author/owner of the copyright gets their work registered to make sure they can enforce the rights conferred by the Copyright Law, should their copyright be infringed. Different countries have different laws pertaining to copyright of artistic works.

Indian law provides protection to the architectural works under the uniform copyright law. Section 13 of the Indian Copyright Act, 1957 numerates the types of artistic works that are eligible for copyright protection.

According to Copyright act 1957-

Section 2(b) “work of architecture” means any building or structure having an artistic character or design, or any model for such building or structure;

Section 2(c) “artistic work” means—

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an
engraving or a photograph, whether or not any such work possesses artistic quality;

(ii) a work of architecture; and

(iii) any other work of artistic craftsmanship.

In India architects can register their original works under the Copyright registration system. Also, being a signatory to Berne Convention as well as Universal Copyright Convention, works protected in other Berne signatory countries will automatically be protected in India without the need for registration. Architecture may be defined as the “art of designing and constructing buildings”, and therefore has both functional as well as artistic attributes. Section 57 of the Indian Copyright Act also takes into consideration the moral rights of the creator of the artistic work as well as the rights of integrity and attribution of the author. The Indian copyright law has also widened its scope to allow protection to the architectural design of commercial buildings. We, at Khurana & Khuranahadthe opportunity to register the copyright for architectural design of a commercial building for our client Riis Retail, a company based out of Denmark, vide diary no. 12158/2010/CO/Aon 10thof November, 2010!

 Protection under the ambit of Design Act

Section 2(d) of the Design Act, 2000 has defined the term design as “ the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

The Design Act, 2000 provides for registration of Architectural works under Class 25-03 and 25-99. Due to multiple provisions conferring protection to architectural works, a conflict mayarise, whether Architectural works should be protected under the Copyright Act, 1957 or under the Design Act, 2000 or whether Section 15(2) of the Copyright Act, 1957 would come in play for determination of what works would be protected through Designs vs Copyrights.

Application of Mischief rule by the courts

Mischief rule pertains to the interpretation of the statutes and is applied by the Courts when there is a conflict between two laws or provisions of law on interpreting it by the words as stated in the particular law or is interpreted by the courts to resolve the confusion in its application. In the case of Microfibers Inc. vsGirdhar& Co. &Anr.,[1]the question was whether the design of an “artistic work” in fabrics should be protected under the Copyright Act or the Design Act. The court by applying the mischief rule stated that the “the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent inspite of commercial production.[2] The court had held that if the design is registered under the designs act, the design would lose its copyright protection, and if the design has not been registered it would still continue to enjoy copyright protection as long as the threshold limit of its application through an industrial process does not go beyond 50 times, after which it shall lose its copyright protection. Delhi High Court by giving a reference to the particular case in Holland L.P. &Anr. vs A.D. Electro Stell Co. Pvt. Ltd[3]., where it was argued by the plaintiff that under section 2(c) read with section 13 of the Copyright Act he had the “right to convert a two dimensional artistic work into a three dimensional constructions”[4]and that the “drawings” are capable  of being copyrighted under Section 15(2) of the Copyright Act. Thus by the virtue of the two statements the copyright should stay with him. The court rejected the plaintiff’s contention and stated that the drawing was capable of being registered under the Design Act and it would lose its copyright if it is reproduced by the industrial process more than 50 times and would also fall under the public domain.

International Conventions protecting the architectural structures 

 Article 2(1) of the Berne Convention requires member countries to extend copyright protection to, among other things, “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”[5]However, the Berne Convention does not explicitly define what works constitute a “work of architecture” entitled to protection, except that such works may be “incorporated in a building or other structure.” The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly incorporates the Berne Convention’s mandate for architectural copyright protection without further defining what constitutes a work of architecture. Architectural works were not included in the Convention of 1886, except for the Article 4 which states “plans, sketches and artistic works relating to architecture were specified.

Thus, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers lack the knowledge to protect and enforce the IP rights in their building designs. Most of the countries have now modified their laws to meet the requirements of the Berne Convention with regard to the copyright protection for architectural works. Further, the basic use of spaces such as windows and doors, which are elementary to any building’s structure, are not themselves protected by copyright law. In such a scenario the Delhi High Court’s judgment and the harmonious construction of the Copyright Act and the Design Act has acted as a balancing beam to tackle the issue.

.

About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

[1] RFA (OS) NO.25/2006

[2] https://indiankanoon.org/doc/112937069/

[3] CS(COMM) 83/2017

[4] https://indiankanoon.org/doc/151057483/

[5] https://www.law.cornell.edu/treaties/berne/2.html

Copyright Protection for Architectural Works- Part II

Application of Mischief rule by Courts

Mischief rule is pertains to interpretation of statutes, and is applied by Courts when there is a conflict between two laws or provisions of law on interpreting it by the words as stated in the particular law or is interpreted by the courts to resolve the confusion in its application. Delhi High Court in Microfibers Inc. vs Girdhar& Co. &Anr.[1] where the “artistic work” in the fabrics was in question that if the design would be protected under the Copyright Act or the Design Act. The court by applying the mischief rule stated that the “the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent inspite of commercial production.[2]  In other words it means that the copyright is protected in an article till 50 reproductions by the industrial process are made and beyond this limit the copyright ceases to exist. Delhi High Court by giving a reference to the particular case in  Holland L.P. &Anr vs A.D. Electro Stell Co. Pvt. Ltd[3]. , where it was argued by the plaintiff that under section 2(c) read with section 13 of the Copyright Act that he had the “right to convert a two dimensional artistic work into a three dimensional constructions”[4] and that the “drawings” are capable to be copyrighted under Section 15(2) of the Copyright Act thus by the virtue of the two statements the copyright should stay with him. The court rejected the plaintiff’s contention and stated that the drawing was capable to be registered under the Design Act and it would lose its copyright if it is reproduced by the industrial process more than 50 times and had also entered the public domain.

International Conventions protecting the architectural structures 

Article 2(1) of the Berne Convention requires member countries to extend copyright protection to, among other things, “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”[5] However, the Berne Convention does not explicitly define what works constitute a “work of architecture” entitled to protection, except that such works may be “incorporated in a building or other structure.” The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly incorporates the Berne Convention’s mandate for architectural copyright protection without further defining what constitutes a work of architecture. Architectural works was not included in the Convention of 1886, except for the Article 4 which states “plans, sketches and artistic works relating to architecture were specified.

Thus, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers lack the knowledge to protect their building designs intellectually. Most of the countries have now modified their laws to meet the requirements of the Berne Convention with regard to the copyright protection for architectural works. Certain structures are considered to be outside the protection of copyright law. For instance, certain structures such as bridges, dams, cloverleaf’s, tents, recreational vehicles, walkways, mobile homes, and boats cannot be considered “buildings”. Further, the basic use of spaces such as windows and doors, which are elements that can be found in the majority of buildings, are not in and of themselves protected by copyright law. In such a scenario the Delhi High Court’s judgement and the harmonious construction of the Copyright Act and the Design Act has acted as a balancing beam to tackle the issue.

[1]RFA (OS) NO.25/2006

[2]https://indiankanoon.org/doc/112937069/

[3]CS(COMM) 83/2017

[4]https://indiankanoon.org/doc/151057483/

[5]https://www.law.cornell.edu/treaties/berne/2.html

About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

Intellectual Property, Singapore: Registered Designs legislative amendments enters into force

Intellectual Property of Singapore (IPOS) in its constant endeavor to grow the IP regime and provide an effective legal framework to the local design industries of Singapore has taken a significant step forward as the Registered Designs (Amendment) Act 2017 (“Act”) and its corresponding subsidiary legislation amendments comes into force from October 30, 2017 [1] [2]. Key features of the amendment are as follows:

 Expanding the scope of Registered Design:

This amendment allows the broadening of scope of the designs that can be registered. In simpler words, an applicant can protect more types of features for their designs. This includes the design features related to a non-physical product and also includes the feature of colors and handicrafts.  A new category which has been introduced into the ‘Registered Designs Act’ is a Non-Physical product which can be a virtual of projected design. A “non-physical product” is anything which

  • doesn’t have a physical shape or feel;
  • is a projection of a design on a surface or into a medium (including air); and
  • has an intrinsic utility.

A virtual keyboard can be an example of a non-physical product which does not have a physical shape/form and is projected by light onto a surface, and which has an intrinsic utility function to type characters in the same way as a physical computer.

Changing the default ownership position of  commissioned designs:

Prior to the amendment, when the designers were commissioned to create a design, the commissioning party was considered to be the owner of the rights in the design, not the creator/ designer. According to the amendment, Section 4 of the Registered Designs Act gives the ownership rights to the designer/ creator by default unless the parties have contracted otherwise.

Extension of Grace Period:

Inclusion of a new section 8A in the Act allows to broaden the circumstances where the designs are disclosed by the designers and to lengthen the grace period for designers to get their designs registered in cases where the designs were disclosed to the public prior to date of filing the registration application. The grace period has been extended from 6 months to 12 months. In other words, the designer can still file a design application for his/her design within 12 months of any disclosure made by him/her for the same design. This new Section 8A shall apply in cases where the disclosure was made on or after the date of commencement of the legislative changes (i.e. 30 October 2017).

Allowing multiple designs to be filed in a single application:

The amendment allows the applicants to file a single application for multiple designs. This must be done at the time of filing the application for registration of their designs on ‘Form D3’. A maximum of 50 designs can be filed within a single application.

Further for providing convenience in filing applications, the amendment includes a new Section 16 A which states that for correcting any non-compliance or to comply with either or both of the formal requirements of Section 11 (2) (c) and 11 (4) (a), subject to the permission of the Registrar, a new application can be filed by the applicant for registration of the design. An additional benefit is granted to the applicant i.e. the new application filed by the applicant shall be treated as filed on the date of filing of the previous application for registration of design.

A per the released Circular No. 6/2017 [2], the corresponding subsidiary legislation amendments to the Registered Designs (Amendment) Act 2017 can be found in the Registered Designs (Amendment No. 2) Rules 2017, the Registered Designs (International Registration) (Amendment) Rules 2017 and the Copyright (Amendment) Regulations 2017.

The above amendments as already mentioned allows greater ownership rights for the local designers and to get protection for more type of features for their designs.

The updated legislative amendments in relation to the changes above will be made available on the IPOS website (https://www.ipos.gov.sg/resources/ip-legislation) [4] after it is published in the Government Gazette.

Author: Shilpi Saxena, Jr. Patent Associate at Khurana & Khurana Advocates and IP Attorneys can be reached at shilpi@iiprd.com.

References:

[1]https://www.ipos.gov.sg/docs/default-source/resources-library/design/Guidelines-and-Useful-Information/registered-designs-infographic-legislative-amendments.pdf

[2]https://www.ipos.gov.sg/docs/default-source/resources-library/design/circulars/2017/(2017)-circular-no-6—designs-related-legislative-amendments-to-enter-into-force-on-30-october-2017.pdf

[3]https://www.ipos.gov.sg/

[4]https://www.ipos.gov.sg/resources/ip-legislation

Recourse against Counterfeiting

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With the increase in innovation and creation, the range of counterfeit goods has expanded significantly leaving no industry impenetrable. While the damage to rights holders is obvious, counterfeit goods may also cause physical illness, injury or even death. As one would have thought, the US Federal Bureau of Investigation has named counterfeiting ‘the crime of the 21st century’.[1]

Counterfeited goods are the replicas of the real product, usually produced with the intent to take unlawful advantage of the goodwill and stature of the real product. In common trade parlance, it is also known as piracy. It has grown considerably to a point where it has now become a widespread phenomenon with an impact on global economy. Since India has massive International boundaries with eight neighbouring countries, it makes the country vulnerable to counterfeited products. This is hindering India’s economic development, especially when the nation is suffering a dearth of strategies against anti-counterfeiting.The law of the land provides a wide array of remedies against counterfeiting under various statutes,however, it does not provide a specific law on Counterfeiting. Few of the laws that provide anti-counterfeiting remedies are: The Trademarks Act 1999, The Copyright Act 1957, The Patents Act 1970, The Designs Act, The Geographical Indications Act 1999, The Customs Act, 1962, The Drugs and Cosmetics Act 1940, The Prevention of Food Adulteration Act 1954, The Consumer Protection Act 1986, The Indian Penal Code, The IT Act 2000.

LEGAL FRAMEWORK

India has no legislation dealing specifically with counterfeiting and piracy, but the legislators, through various statutes have provided statutory, civil, criminal and administrative remedies. However, Counterfeiting has been majorly dealt by Intellectual Property Law as it directly invokes the Intellectual Property Rights of the aggrieved. For instance, Trademark law necessitates appropriate action against passing off, which refers to theimitation of marks or goods in order to take advantage of the goodwill of the lawful owner as well as causes confusion among the consumers. Similarly, Copyright Law provides remedies against plagiarism,which is the act of appropriating the literary composition of another author.

Some of the remedies provided by the Indian legal system acting against counterfeiting have been briefly discussed below:

The TRADEMARKS ACT, 1999:  Trade Mark Act provides civil as well as criminal remedies against infringement of any trademark, whether registered or not. Although, the statute neither defines counterfeiting nor provides penalties against it, theterm can be categorised as what has been mentioned in the act as ‘falsifying a trade mark’ or ‘falsely applying a trade mark’. The trade mark law provides administrative remedies, whereby the aggrieved can redress his grievance by seeking intervention from the Trademark Registry, which acts through the Registrar of Trademarks. The act also allows the owner of the trade mark to file a suit against infringement.[2] Further, the trademarks act empowers the court to grant ex-parte injunctions in appropriate cases in order to restraint the infringers from selling counterfeit goods and for discovery of documents or other related evidence. Further, the statute provides for civil relief including injunctions, rendition of accounts of profits and delivery up of infringing products for its destruction.[3]

The Trade Marks Act, 1999 provides penalty for applying false trademark and/or trade description, etc. with imprisonment up to three years and fine ranging from fifty thousand to two lakh rupees.[4]

THE COPYRIGHT ACT, 1957: The statute appears to have a very strict outlook towards infringers, considering that the Copyright law does not provide any requirement for registration.Section 55 of the Copyright Act, 2000 provides various civil remedies such as injunctions, damages and account of profits.

The statute gives right to the police officers to go ahead with the investigation by seizing all the infringing copies.[5] Further, the registrar of copyright has the power to investigate any alleged ship, dock or premise and order to confiscate them.[6]Section 63 of the Act provides for imprisonment up to three years and fine for indulging in activities of infringement.

THE PATENTS ACT, 1970: Under this statute, the patentee is granted a monopoly right in respect of an invention for a term of 20 years. Any violation necessitates the judiciary to intrude and secure such right. However, the patentee is required to institute a suit for seeking remedies, such as interlocutory/interim injunction, damages or account of profits and permanent injunction[7], all of which are recognized as civil remedies. The Patents Act does not provide criminal remedies. However, criminal liability arises where an article is wrongfully represented to be patented or secrecy requirements under the act are breached.

DESIGN ACT, 2000: Section 22 provides that anyone committing an act of piracy shall be liable to pay to the rights holder up to ₹ 50, 000 (approximately $1,000) per registered design. The rights holder may also seek interim relief and an injunction, provided that the right holder must prove that the alleged infringing act involves their design resulting in an economic loss.

GEOGRAPHICAL INDICATIONS ACT, 1999: The Geographical Indications of Goods (Registration & Protection) Act, 1999 provides for protection to all undertakings located in the area, which may use the geographical indication on specific goods that they produce. The act provides the right to the GI owners to obtain reliefs in  cases of infringement[8] and also provides for criminal remedies where the term of imprisonment varies from 6 months to 3 years and fine from ₹ 50,000 to ₹ 2 lacs.[9]

Since, the fundamental issue of this piece concerns the remedies for counterfeiting, the article briefly discusses the civil as well as criminal remedies for redressal of grievances. .

INDIAN PENAL CODE 1860: The Penal Code sets out punishments for cheating, counterfeiting and possession of instruments for making counterfeits etc. under chapter XII of the Act. The code’s provisions can be invoked in criminal actions, in addition to the provisions of specific statutes.

BORDER MEASURES: The first lines of defence against the cross-border movement of counterfeited/ pirated articles are the National Customs and Border protection. The Customs Act regulates the import and export of goods through provisions provided under section 44-51. Further, Sec 11 strengthens the IP enforcement as it empowers the government toenforce prohibition on the import and export of certain goods to protect Patents, Trade Marks and Copyrights[10] and gives power to the custom officials to confiscate goods imported or exported, unlawfully or illegally.[11]

The Government of India had notified the ‘Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007’ with a view to bolster the Customs Act and provide remedies to protect IPRs at borders. Thus, importing of infringing goods is prohibited under the Customs Act 1962, read with the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007.

The law allows holders of specific IP rights such as trademarks, copyright, patents, designs and geographical indications to record their grievances with Customs officials for prompt seizure of counterfeit goods at the port itself.

CIVIL REMEDY V. CRIMINAL REMEDY

CRIMINAL REMEDY

IP rights are private rights that are mostly enforceable through civil litigation. However, the prevalence of counterfeiting, passing off and piracy along with the economic damage they cause has led to an increased importance of criminal sanctions. It can be observed that, only few statutes like Trademarks Act, the Copyright Act, and the Geographical Indications Act provide criminal remedies. The punishment varies from 6 months to 3 years of imprisonment and fine ranging from INR 50,000 to 200,000/-.

The statutes acknowledge this crime as cognizable wherein the police can take action and carry out search and seizure without court warrant.

Despite having a robust legal framework for anti-counterfeiting in liaison with Police, the mandate of the statute is debilitated by the lax attitude of Police. In addition, Criminal trials become excruciatingly lengthy resulting in heavy backlog of cases for the courts. This has resulted in low conviction rates, thereby reducing the efficacy of criminal remedy sought against the counterfeiters. To counter this, the courts have adopted the practice of plea bargaining, wherein the offender accepts his or her guilt in lieu of remission of imprisonment and in turn imposing on him, heavy cost payable to the aggrieved party thereby disposing the case in a favourable manner.

 

CIVIL REMEDIES

Civil remedies against counterfeiting mostly include injunctions, damages and/or rendition of accounts. The mandate civil remedy is to stop distribution, manufacturing, or retailing of the infringing product or gaining profits from using the pirated product of the rightful owner of the products.

A civil court may even grant ex-parte injunctions while the proceedings are on. Further, the courts have widened their scope in order to deal with a serious issue of counterfeiting and the jurisprudence under this subject is growing as the courts have introduced the following interim reliefs under civil remedies through various case laws:

  • Anton Pillar Order: which gives right to the right holder to visit the defendant’s premises along with thelocal commissioner appointed by the court, to search and seize the counterfeit goods. These goods are returned to the defendant with an undertaking that the goods will be safely preserved until further orders of the court. The court in the case of Microsoft Corporation v Jayesh &anr. 2014, passed the anton pillar order in order to adduce evidence supporting the case of counterfeiting. On the basis of the report of the Court commissioner, the court passed permanent injunction restraining the defendants from selling or distributing the counterfeited/pirated goods and delivery up of the counterfeiting goods. However, the court did not grant the damages to the plaintiff as no evidence of unlawful gain could be produce by the plaintiffs.
  • John Doe order: It is similar to Anton Pillar order, the only difference here is that the defendants are unknown/ or not known. Moreover, this action is taken when it is difficult to identify the counterfeiter or where the counterfeiter is operating out of temporary premises.[12]

Code of Civil Procedure 1908 governs the procedures adopted in the civil cases. Counterfeiting is a widespread commercial crime rather than a conventional one. The CPC has also established a commercial court in High Court, in 2016, which has the jurisdiction to deal with cases relating to ‘counterfeiting’.

The listed few civil remedies are not enough to compensate the loss suffered by the right holders, neither do they prevent future counterfeits and since,more often than not, people take the recourse to civil remedy, the court is putting its best efforts to expand the horizon of civil course in order to make it efficient enough to resolve the issue and provide justice to all the aggrieved. Therefore, the courts alsoaward punitive remedy in addition to damages and payment of the plaintiff’s counsel fee, on case to case basis with a view to deter recidivists andcompensate victims for an otherwise uncompensable loss.

In the case of Time Incorporated v. Lokesh Srivastava[13], the accused was awarded punitive damages of Rs. 5 lakhs in addition to compensatory damages of Rs. 5 lakhs for imitation of plaintiff’s Trademark. The Delhi High Court laid down their point of view that in cases of infringement of Trademarks, Copy rights, Patents etc., the courts must grant punitive damages in order to make the infringers realize that they would be liable to reimburse the aggrieved party and pay punitive damages as well, which may spell financial disaster for them.

CONCLUSION

The biggest problem in defying counterfeiting is the paucity of legal framework and the ever increasing degree of similarity between the genuine and counterfeited products. Therefore, in addition to the existingprovisions of civil andcriminal laws, it is incumbent upon the government to take up initiatives to educate people about the menace of counterfeiting and its repercussions. Methods like Capacity building programmes that educate officials and the general public to distinguish between a fake and real product can be facilitated by government and trade organisations to combat counterfeiting.

Taking recourse to criminal or civil remedies against counterfeiting depends upon the objective that the Plaintiff seeks to achieve, keeping in view the consequences of the counterfeiter’s act. The recourse to civil or criminal remedies provided by appropriate law for an act of counterfeiting should be construed on the basis of the magnitude of the act’s consequences. For instance, if an act of counterfeiting is awfully against public interest including,  public health and safety, the prevention of corruption and organized crime, tax and customs income, local and regional industries, foreign investment and investor confidence, international trade relations, etc., it must be criminalized and the right holder must seek criminal remedy to punish and deter counterfeiters, who do not respect law and strategically carry out their criminal activity designed toevade justice and endanger public health and safety. A criminal action can be an effective remedy to safeguard the interest of general public, especially when the issues of infringement and counterfeiting are growing epidemically.

Likewise, a civil recourse can be taken up where a defendant can be easily identified and is based in a specific established market. The advantage of a civil suit is that the courts can grant an interim injunction along with an Anton Piller order for search and seizure of counterfeit products.

India has a dynamic legal framework for combating counterfeiting and piracy; however, there are gaping holes in the area of enforcement. However, the slow court procedure and laxityon part of Police in matters of counterfeiting, severely handicap any recourse that an aggrieved might take up. Thus, it is utmost important that strong IP laws be supported by equally strong enforcement. The development and implementation of a carefully thought-out strategy will give the IP right holders the relief they desire and rightfully deserve.

About the Author :  Ms. Pratistha Sinha , Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at anirudh@khuranaandkhurana.com.

References:

[1]http://ficci.in/sector/5/add_Docs/WTR_36%20India%20CC.pdf

[2]Section 134(2), Trade Mark Act, 1999.

[3] Section 135, Trade Mark Act, 1999

[4] Section 103, Trade Mark Act, 1999

[5]Section 64. Copyright Act, 1957

[6]Section 53. Copyright Act, 1957

[7] 104, Patent Act, 2000

[8] Section 20, Geographical Indication of Goods (Registration and Protection) Act, 1999

[9] Chapter VIII, Geographical Indication of Goods (Registration and Protection) Act, 1999

[10]sec 11 (2) (n), The Customs Act, 1962

[11]Section 111 and 113 of The Customs Act, 1962

[12]http://www.worldtrademarkreview.com/Intelligence/Anti-counterfeiting/2017/Country-chapters/India

[13]2005 (30) PTC 3 (Del.)

100 and counting: Indonesia joins Madrid Protocol

The Madrid Protocol is an international treaty which simplifies the procedure for international registration of trademarks by filing a single application along with onetime payment fee. The protocol was adopted at Madrid on June 27, 1989, amended on October 3, 2006 and further amended on November 12, 2007 [1]. The Protocol provides for convenient and effortless managing and registration of trademarks worldwide. A landmark moment in Madrid System history was October 2, 2017 as Indonesia officially became 100th member of the Madrid Union on this day. The instrument of accession to the Madrid Protocol with WIPO’s Director General was completed through the issuance of the Presidential Decree No. 92 of 2017. The Protocol will become effective for Indonesia on 2 January 2018 [2].

Indonesia is one of fastest growing top five G20 economies and a leader in global marketplace and membership in   Madrid Union opens up a direct path for Indonesian enterprises in new marketplaces like US, China, Europe and Japan. Indonesia is the eighth member of the Association of Southeast Asian Nations (ASEAN) to join the Madrid System after Vietnam which became member in 1995 [4]. It further reinforces the motto of ASEAN, to promote technology transfer throughout the region and stimulate innovation through strengthened IP-rights co-operation.

Once the Madrid Protocol comes to force, local economic growth will be stimulated as the Indonesian nationals will be able to seek protection of their trademark in the territory of other member countries. Likewise, the owner of an existing International Trademark Registration (IR) will be able to expand the scope of their protection by filing a subsequent designation to its existing IR, in order to seek additional protection in Indonesia.

The Presidential Decree No. 92 of 2017 provides that Indonesia has made the following declarations in regard to its accession to the Madrid Protocol [3]:

  1.  With respect to Article 5 (2)(b) of the Madrid Protocol, time limit of 18 months will be given to notify a refusal to the International Bureau against an international application made under the Madrid Protocol.
  2. With respect to Article 8 (7)(a), the Government declares its rights to receive fees produced from supplementary and complementary fees, in the event:
  • An international trademark application is intended for Indonesia
  • Indonesia becomes the next appointed country in the international registration
  • A renewal for an international registration is intended for Indonesia.
  1. With respect to Rule 20 bis(6)(b) of the Common Regulations (recording of licenses in the International Register), further on it will not have any effect in Indonesia.

The Madrid Protocol after gaining instrument of accession from Indonesia becomes the fifth WIPO administered treaty after the WIPO Convention, the Paris Convention, the Berne Convention and the PCT. Indonesia’s entry into the Madrid system as its 100th member clearly showcases its significance of being a key component of global protection of trademarks. It also highlights a cost-effective and reliably convenient solution it provides to global brand owners.

For an applicant to apply for trademark protection in Indonesia, he/she must browse the Global Brand Database which has almost 870,000 marks currently registered in that market before he/she files an international application.

Just before Indonesia entering into the Madrid system, Thailand became the 99th member of the Madrid System. The Protocol will enter into force for Thailand on November 7, 2017 [5]. This development can be seen as indication of news from remaining two ASEAN members, Malaysia and Myanmar.

Author: Shilpi Saxena, Jr. Patent Associate at Khurana & Khurana Advocates and IP Attorneys can be reached at shilpi@iiprd.com.

 [References]

[1]http://www.wipo.int/treaties/en/text.jsp?file_id=283484

[2]http://www.wipo.int/madrid/en/news/2017/news_0020.html

[3]http://www.wipo.int/madrid/en/members/declarations.html

[4] https://www.state.gov/p/eap/regional/asean/

[5]http://www.wipo.int/madrid/en/news/2017/news_0015.html

Evolvement of Quantum dot Light Emitting Diode (QLED) Technology: An Overview

Television is amongst many other technologies which evolved rapidly in 20th century as a result of market competition. Currently, this evolution has landed from huge boxes to flat screens with high definition display, which give more colorful experience than reality itself.

It was late before 1940s when people enjoyed Black and White Television, which worked merely on the basis of white phosphor coated screen which represented an image, when an electron beam painted that image on it resulting into a black and white image. Later on, CRT (Cathode Ray Tube) Technology for generation of colored images in television came up with three electron beams one for each additive primary color (red, green, and blue).

As technology evolved, Plasma Technology came into existence in televisions, which consists of tiny cells coated inside with phosphor which were then coated to the interior of a glass tube, which was filled up with a gas. Once current flows through the gas and the gas atoms bombard on cells, there occurs generation of ultraviolet light, ultimately generating an image on screen. This ultimately reduced the size, as the cathode tube is absent in this case.

Further Evolution of LCD (Liquid Crystal Display) Technology came into existence in televisions, which utilizes a backlight source to illuminate, which includes CCFL(Cold Cathode Fluorescence Lamps), etc. as this technology doesn’t include electron beams like CRT and these are much thinner than Plasma television and are available in variety of sizes.

Advancement in technology led to utilization of LED (Light Emitting Diode) as a backlight source for the display. In case of LCD, where the backlight needed to be blocked in order to represent a darker zone in display, LED provided a facility wherein the light can be dimmed (LED can be manufactured in very small sizes). LED television are of two types white and RGB, where white uses white CCFL and RGB utilizes three colors(red, green, blue).

In recent times market has flushed with OLED  (Organic Light Emitting Diode) technology televisions, which refers to Organic Light Emitting Diode Technology which utilizes Organic Semiconductors, to create a digital display on activation by two electrodes, one of which is transparent.

Currently market is hit by a newer technology utilizing Quantum Dots or Semi-conductor nanocrystals called as QLED (quantum dot light emitting diode) Technology. QLED TV offers high and dynamic brightness levels, best viewing angle and produces more colours than any LED TV. QLED is supposed to be a so-called emissive technology. QLED basically means quantum dot technology + LED = QLED. QLED technology utilizes a quantum dots as a light source or light emitting device. Quantum dots are very small semiconductor particles, only several nanometers in size, so small that their optical and electronic properties differ from those of larger particles. The quantum dots are really tiny particles that, when hit with light, can deliver extremely high-intensity light means basically quantum dots may emit light, or just convert it. QLEDs are characterized by pure and saturated emission colors with narrow bandwidth. Quantum dots are tiny, and their size determines their color. LED TVs with quantum dots such as cadmium selenide (CdSe) nanocrystals, considered as “QLED” use BLU (Back-Light Unit) and produce enhanced colors utilizing quantum dots. The quantum dots can be used as a tube adjacent to the LEDs or in a sheet of film. QLED TV technology utilizes quantum dot with LED display. The quantum dot can be utilized to experience extremely bright and intensely dark colors on the QLED TV, just as real life. QLED TV technology places a layer or film of quantum dots in front of a regular LED backlight panel. The layer or film is made up of quantum dots which are tiny particle seach of which emit its own individual color depending on its size (anywhere between 2 and 10 nanometers). In QLED TV quantum dots are arranged between the display and the LED lights i.e. behind the display and in front of the LED. When the quantum dot is struck by light, it glows with a very specific colour.

Conventional LCD TV mostly utilizes LED which emits white light butQLED TV can utilize any color, like blue LED which can emit blue light. A blue LED light emits the blue hues. When blue LED emits the blue hues then the different sized quantum dot emits different colors such as red, green, etc based on size of quantum. The quantum dot can have different size and each size producing a different hue to turn light into perfect expressions of color. For example, when a blue LED light is struck on the quantum dot which has 5 nm diameters, then that quantum dot will emit red hue to express red colour and likewise, different size quantum dots emit different hue to express different colors while producing a picture.

Recently Samsung has come up with QLED TV quantum dot technology paired with (high dynamic range) HDR technology to reproduce a greater dynamic range of luminosity with standard digital imaging or photographic techniques for experiencing full spectrum of real-life hues and clarity. Samsung has paired this QLED technology with precision black technology which automatically adjusts the brightness of every scene accordingly, in their QLED TV series. In QLED TV the quantum dot technology helps in experiencing true or real colour as real life event and HDR technology assists in expressing greater dynamic range of luminosity from any angle.

Samsung has recently filed a Patent application (application no. WO2017018713A1) on QLED technology which talks about a display apparatus and a display method, which consists of fixed number of light emitting elements and a controller to monitor and control the light emission of these elements as per the requirement of the display. Samsung filed Another Patent application (application no. WO2016175541A1), which describes presence of liquid crystal panel in the display, associated purpose and utilization of quantum dots as color filter in between polarizing components of liquid crystal panel. The quantum dots are adapted to filter light of preset colors.

REFERENCES

[1]. http://www.samsung.com/global/tv/qled/quantum-dot/

[2]. https://www.wired.com/2015/01/primerquantum-dot/

[3]. https://www.google.co.in/patents/WO2016175541A1?cl=en

[4]. https://www.google.co.in/patents/WO20170187A1? dq=WO2017018713A1&cl=en

[5]. http://www.pocket-lint.com/news/139867-what-is-qled-samsung-s-new-tv-tech-explained

 ABOUT THE AUTHOR:

Ms. Shubhangi Dhakane, Patent Associate at Khurana & Khurana Advocates and IP Attorneys, along with Ms. Shalini Patil, Birla Institute of Technology & Science, Pilani (Rajasthan), intern at Khurana & Khurana  and can be reached at: swapnils@khuranaandkhurana.com

Self-Healing Display

With the advent of the era of communication technology, mobile devices, portable device and other communications products has been very widely deep into people’s lives. As communication technology continues to improve, mobile phones and other intelligent terminal becoming increasingly predominant in society. With the rapid development of mobile communications smartphone can be used for longer calls, send text messages, but also manage address book, surf on the Internet, shopping cart, watch videos, navigate to find a way and to handle personal business. Thus mobile becomes inseparable part of people’s lives.

As the capabilities of these smartphone and communication products have evolved, so too have their user interfaces. As technology evolved, touchscreen technology came into existence in portable device which enables the user to interact directly with display, instead of using mouse, touchpad or any other such device (stylus is optional for most modern touchscreen). Touch screen technology includes sensors for detecting the presence of an object such as finger or stylus. Many touchscreen of smartphones can be manufactured from glass or plastic which is susceptible to deformation such as scratch, breakage, damage, or bending in case of smartphone accidents such as dropped or thrown. Once the display is damaged, the smartphone is often considered as useless to the user. Therefore there is a need of robust portable device.

 In recent times market will be hit by a newer technology such as self-repairing display technology. In the self- repairing display can be manufactured with “shape memory polymer materials” or “Smart Glass”. Shape-memory polymers are polymeric smart materials that have the ability to return from a deformed state (temporary shape) to their original (permanent) shape induced by an external stimulus (trigger), such as temperature change. In the self-repairing technology different trigger such as heat from phone or user body temperature can be applied as a result to a stimulus. The self-repairing technology basically detects damage/breakage on its display by inbuilt damage detection device and notifies the user. The user can then taps the damaged area by using the fingertip, while heat from one or more thermal elements which is disposed adjacent to display of the phone can be applied to the shape memory polymer of the display in order to repair the damage. The display can be LCD or LED displays with a capacitive touch sensor layered in, as well to sense or detect the position of fingerprint.

Motorola has come up with idea of self –healing display while thinking about a day where smartphones can heal their own damages. Motorola has recently filed a Patent application at USPTO (US20170228094A1) for a self-healing display that heals if it is cracked. Patent application talks about an electronic device which includes a fascia manufactured from a shape memory polymer and one or more thermal elements which can be disposed adjacent to the fascia. The thermal elements can apply heat to the shape memory polymer along the fascia to repair the damage after detection of damage.

self_healing

Exemplary figures that represent working of self-healing display taken from USPTO.

ABOUT THE AUTHOR:

Shubhangi Dhakane, Patent Associate at Khurana & Khurana, Advocates and IP Attorneys who can be reached at shubhangi@iiprd.com