IGNOU MIP-104 Solved Question Paper PDF Download

IGNOU MIP-104 Previous Year Solved Question Paper in Hindi

IGNOU MIP-104 Previous Year Solved Question Paper in English

Q1. Colour marks

Ans. A colour mark is a non-conventional trademark where a specific single colour or a combination of colours identifies the source of a product or service. It can be registered if it is proven to have acquired distinctive character through use, causing consumers to associate it with a particular brand. Examples include Cadbury’s purple or the red sole of Louboutin shoes.

Q2. Date of registration

Ans. The date of registration is the date from which the registration of a trademark is deemed to be in effect. As per the Trade Marks Act, 1999, it is the date of filing the application for registration , not the date when the certificate is issued. This date is crucial for calculating the 10-year term of registration, determining the renewal due date, and claiming priority rights.

Q3. Trademark licensing

Ans. Trademark licensing is a contractual arrangement where a trademark owner (the licensor) permits another party (the licensee) to use the trademark in connection with specific goods or services, subject to certain conditions and quality control obligations. This allows the licensor to expand their brand geographically or into different product lines, while the licensee benefits from the goodwill of the established brand.

Q4. Generic Top Level Domains

Ans. Generic Top Level Domains (gTLDs) are one of the highest-level categories of internet domain names, managed by ICANN. They are the final part of a domain name. Traditional gTLDs include .com (commercial), .org (organization), and .net (network) . Since 2012, hundreds of new gTLDs like .app, .shop, and .guru have been introduced, significantly expanding the domain name space.

Q5. Procedure for appointment of Arbitrator

Ans. In domain name disputes (under the UDRP), the procedure for appointing an arbitrator is initiated by the complainant. The complainant selects a dispute resolution provider , like WIPO. The complainant can opt for a single-member or a three-member panel. For a single-member panel, the provider appoints the arbitrator. For a three-member panel, the complainant and respondent each nominate one arbitrator, and the provider selects the third, presiding arbitrator.

Q6. What are trademarks ? Discuss their function.

Ans. As per the Trade Marks Act, 1999, a trademark is a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others. It may include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours. It is essentially a brand identifier. Trademarks perform several vital functions: 1. Origin Function: Its primary function is to identify the commercial source or origin of goods or services. When consumers see a particular trademark, they instantly recognize the company that produced it. For instance, the ‘Apple’ logo immediately brings to mind products from Apple Inc. 2. Quality or Guarantee Function: A trademark symbolizes a particular level of quality and consistency. Consumers expect a certain standard of quality from a branded product. The mark acts as a silent guarantee that the product will live up to the brand’s reputation. 3. Advertising Function: The trademark is a crucial tool in advertising and sales promotion. It serves as a concise, memorable symbol that encapsulates all the desirable attributes of the product. It helps to attract consumers and build a brand presence in the market. 4. Distinguishing Function: It helps to differentiate a trader’s products from those of his competitors. In a crowded marketplace, a strong trademark makes a product stand out, making it easier for consumers to make their choice. In essence, trademarks are not just names or logos; they are valuable assets for businesses that symbolize their reputation and help build trust with consumers.

Q7. Discuss the grounds for refusal of registration of trademark.

Ans. The Trade Marks Act, 1999, specifies various grounds for the refusal of registration of a trademark. These are broadly divided into two categories: Absolute Grounds and Relative Grounds . 1. Absolute Grounds (Section 9): These grounds relate to the inherent nature of the mark itself. A mark cannot be registered if:

• It lacks distinctive character: If the mark is not capable of enabling consumers to distinguish the goods or services of one trader from those of another.
• It is descriptive: If the mark exclusively designates the kind, quality, quantity, intended purpose, value, or geographical origin of the goods or services. For example, the word ‘SWEET’ cannot be registered for apples.
• It has become generic: If the mark has become customary in the current language or in the established practices of the trade. For example, ‘Escalator’.
• It deceives the public or causes confusion: Marks that are misleading as to the nature, quality, or origin of the product.
• It hurts religious susceptibilities: If the mark contains matter likely to hurt the religious feelings of any class of citizens of India.
• It is scandalous or obscene: Marks that violate moral standards.
• It is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950: Such as the use of the national flag or government emblems.
• Shape of goods: If the mark consists exclusively of the shape of goods which results from the nature of the goods themselves, is necessary to obtain a technical result, or gives substantial value to the goods.

2. Relative Grounds (Section 11):

These grounds relate to the mark’s conflict with pre-existing trademarks. A mark cannot be registered if:

• It is similar to an earlier trademark: If it is identical or similar to an earlier trademark and covers identical or similar goods/services, leading to a likelihood of confusion among the public.
• It is similar to a well-known trademark: If it is similar to a well-known trademark in India and its use would take unfair advantage of or be detrimental to the distinctive character or repute of the well-known mark, even if the goods or services are different.
• It is protected under the law of passing off or copyright: If its use would infringe upon the prior rights of another person.

These grounds ensure that only valid and distinctive marks are registered, thereby maintaining fair competition in the market and protecting consumer interests.

Q8. Describe the procedure for the registration of trademarks.

Ans. The procedure for the registration of a trademark in India is governed by the Trade Marks Act, 1999, and the associated Rules. It involves the following steps: 1. Trademark Search: Before applying, it is advisable to conduct a search of the trademark registry’s records to ensure that no identical or similar mark already exists. This helps in avoiding objections and litigation in the future. 2. Filing of Application (Form TM-A): The applicant must file an application with the Registrar of Trademarks in the prescribed form (TM-A). The application must mention the representation of the mark, name and address of the applicant, a list of goods/services, the relevant class (as per the NICE classification), and the date of first use (if any). 3. Examination: After the application is filed, it is examined by an examiner to ensure it complies with the Act and Rules. The examiner checks for objections on absolute (Section 9) and relative (Section 11) grounds. If there are any objections, an Examination Report is issued. 4. Response to Examination Report: The applicant must respond to the objections raised in the examination report within one month of its issuance. 5. Acceptance and Publication: If there are no objections, or if the examiner is satisfied with the applicant’s response, the application is accepted and published in the Trademarks Journal . The purpose of publication is to give third parties an opportunity to oppose the registration of the mark. 6. Opposition: The public can file an opposition for a period of four months from the date of publication. If an opposition is filed, it becomes a legal proceeding involving a notice of opposition, counter-statement, submission of evidence, and a hearing. 7. Registration: If no opposition is filed within the four-month period, or if the opposition is decided in the applicant’s favour, the mark is registered. The Registrar issues a Certificate of Registration . The registration is valid for 10 years from the date of application and can be renewed every 10 years.

Q9. Explain the difference between Geographical Indications and Trademarks.

Ans. Geographical Indications (GIs) and Trademarks are both forms of intellectual property that identify products, but they are fundamentally different in their purpose, ownership, and nature. The key differences are as follows:

• Source Identification:
  • Trademark: Identifies the commercial source of a product or service, i.e., the company or person that provides it (e.g., Nike, Coca-Cola).
  • GI: Identifies the geographical source of a product, i.e., the region or locality from where it originates (e.g., Darjeeling Tea, Kanchipuram Saree).
• Ownership:
  • Trademark: It is a private right , owned by an individual, company, or legal entity.
  • GI: It is a collective right . It belongs to all producers in that region who adhere to the prescribed standards. No single person owns it.
• Function:
  • Trademark: Its main function is to distinguish the goods of one trader from those of another. It may indicate quality, but its core purpose is to distinguish the source.
  • GI: Its main function is to certify that a product possesses a certain quality, reputation, or characteristic that is attributable to its geographical origin.
• Nature:
  • Trademark: It is often arbitrary, fanciful, or suggestive. It is a creative mark made by the company.
  • GI: It is always derived from the name of a geographical place (like a city, region, or country).
• Transfer and Licensing:
  • Trademark: It can be sold, assigned, or licensed as it is a private property.
  • GI: It cannot be assigned or licensed as it is inseparably linked to the geographical region it represents.
• Basis for Protection:
  • Trademark: It is protected based on its distinctiveness.
  • GI: It is protected based on the reputation and characteristics linked to its geographical origin.

In short, a trademark answers “who made it,” while a GI answers “where was it made.”

Q10. Describe the procedure for registration of Domain Name.

Ans. The registration of a domain name is the process of acquiring a unique address for a website or online identity. It is not a legal registration like a trademark, but a process of reserving a name through a domain name registrar. The procedure involves the following steps: 1. Choose a Domain Name and TLD: The first step is to choose a unique domain name that reflects your brand or purpose. You must also choose a Top-Level Domain (TLD), which is the suffix of the domain name, such as .com, .org, .in, .net, or one of the new gTLDs like .shop or .app. 2. Check Availability: Once you have a name in mind, you need to check if it is available. This can be done using a search tool on a domain name registrar’s website (e.g., GoDaddy, Namecheap, Google Domains). If the name is already taken by someone else, you will have to choose a different name or a different TLD. 3. Choose a Registrar: You will need to select an ICANN (Internet Corporation for Assigned Names and Numbers) accredited registrar. Different registrars vary in pricing, customer support, and additional services offered (like web hosting and email). 4. Provide Registration Information: During the registration process, you will have to provide contact information, including your name, address, email, and phone number. This information is recorded in the public WHOIS database . Many registrars offer WHOIS privacy protection services to hide your personal information. 5. Registration Period and Payment: You will need to choose how long you want to register the domain name for, typically from one to ten years. You will then need to pay the registration fee for the selected period. 6. Verification and Confirmation: After payment, the registrar will process the registration. You may receive a verification email to confirm your contact email address. Once everything is confirmed, the domain name is under your control, and you can configure its DNS (Domain Name System) settings to point it to your website, email servers, etc. It is crucial to renew the domain before it expires to keep it active.

Q11. Discuss the salient features of Domain Name Dispute Resolution Policy.

Ans. The Uniform Domain Name Dispute Resolution Policy (UDRP) is a landmark system established by ICANN in 1999. Its purpose is to provide a quick, efficient, and cost-effective process for trademark holders to resolve domain name disputes related to “cybersquatting” without going to court. The salient features of the UDRP are as follows: 1. Mandatory Applicability: The policy is mandatory for all generic Top-Level Domains (gTLDs) like .com, .net, .org, and many country-code Top-Level Domains (ccTLDs). When a person registers a domain name under these TLDs, they contractually agree to be subject to the UDRP process. 2. Three-Prong Test: To win a dispute, the complainant must prove all three of the following elements:

• The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
• The domain name holder (respondent) has no rights or legitimate interests in the domain name.
• The domain name has been registered and is being used in bad faith .

3.

Fast and Online Procedure:

UDRP proceedings are primarily online and based on written submissions. There are usually no in-person hearings, making it much faster (typically under 2 months) and less expensive than traditional litigation.

4.

Limited Remedies:

The remedies available under the UDRP are limited. The panel can only order that the disputed domain name be

cancelled or transferred

to the complainant. It cannot award monetary damages.

5.

Approved Providers:

The proceedings are administered by ICANN-approved dispute-resolution service providers, such as the World Intellectual Property Organization (WIPO) and The Forum.

6.

Non-Exclusive:

A UDRP decision does not prevent the parties from taking the same dispute to a court of competent jurisdiction. Parties can sue in court before, during, or after a UDRP decision. The policy is an alternative to litigation, not a replacement.

The UDRP has proven to be a highly successful mechanism in combating cybersquatting and protecting brand integrity online.

Q12. Differentiate between Passing off and Infringement.

Ans. Trademark infringement and passing off are both legal actions to enforce trademark rights, but they differ in crucial ways. The main distinction hinges on whether the trademark is registered or not. The key differences between them are as follows:

• Legal Basis:
  • Infringement: This is a statutory remedy , available under the Trade Marks Act, 1999. This action can only be initiated by the owner of a registered trademark .
  • Passing Off: This is a common law remedy , based on unwritten legal principles. This action can be initiated by the owner of an unregistered trademark who has been using their mark.
• Right Protected:
  • Infringement: It protects the exclusive statutory right of the registered proprietor to use their mark.
  • Passing Off: It protects the goodwill and reputation associated with the mark, which the owner has earned in the course of their trade.
• Burden of Proof:
  • Infringement: The plaintiff only needs to prove that the defendant’s mark is identical or deceptively similar to their registered mark and is used for similar goods/services. Proof of registration is prima facie evidence of right.
  • Passing Off: The plaintiff must prove three elements, known as the “Classical Trinity”:

  1.
  
  Goodwill or reputation
  
  in their mark.

  2. A
  
  misrepresentation
  
  by the defendant (intentional or unintentional) leading the public to believe their goods or services are those of the plaintiff.

  3. They have suffered or are likely to suffer
  
  damage
  
  to their goodwill because of this misrepresentation.

• Jurisdiction:
  • Infringement: A suit for infringement can be filed at a place where the plaintiff resides or carries on business.
  • Passing Off: A suit for passing off can only be filed where the defendant resides/works or where the cause of action arises.
• Nature:
  • Infringement: It is a violation of a registered right, which is relatively straightforward to prove.
  • Passing Off: It is broader and can protect not just a mark but also the overall trade dress, get-up, and packaging of a business.

In summary, infringement is a weapon for a registered trademark, while passing off is a shield for the reputation of an unregistered mark.

Q13. Discuss the objectives behind the enactment of the Geographical Indications of Goods (Registration and Protection) Act, ]999. What cannot be registered as GI ? Explain with illustration.

Ans. The Geographical Indications of Goods (Registration and Protection) Act, 1999, was enacted by the Parliament of India to fulfil its obligations under the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. There were several crucial objectives behind the enactment of this Act, vital for protecting India’s cultural and economic heritage. Objectives of the Act:

1. To Provide a Legal Framework: The primary objective was to establish a comprehensive legal framework for the registration and better protection of Geographical Indications (GIs) in India. Before the Act, GIs were inadequately protected through common law actions like passing off.
2. To Prevent Unauthorised Use: The Act prevents the unauthorised use of GIs. It ensures that only authorized producers from that particular geographical area can use the GI, thereby protecting consumers from being misled about the true origin of goods.
3. To Promote Economic Prosperity: By registering GIs, the Act helps to promote the economic prosperity of producers of goods produced in a geographical territory. A protected GI can command a premium price and ensure better returns for the producers.
4. Consumer Protection: The Act protects consumers from deception. When consumers buy a product with a GI tag, they are assured that the product possesses the specific quality and characteristics associated with that region.
5. To Promote Exports: A registered GI enhances the reputation of a product in international markets. The Act helps to promote the export of products bearing Indian GIs, giving them recognition and protection globally.

What cannot be registered as a GI? (Section 9)

The Act prohibits certain indications from being registered as a GI. These are:

• Likely to cause confusion or deceive: Any indication the use of which would be likely to deceive or cause confusion.
• Contrary to law: Any indication the use of which would be contrary to any law for the time being in force.
• Scandalous or obscene matter: Indications which comprise or contain scandalous or obscene matter.
• Likely to hurt religious susceptibilities: Indications likely to hurt the religious susceptibilities of any class of the citizens of India.
• Generic names: Indications which, although they relate to the region where the goods originated, have now become the common name for those goods. They no longer indicate a specific geographical origin. Illustration: “Cheddar” cheese is a prime example. Although it originally came from the village of Cheddar in England, the term “Cheddar” has now become a generic term for a particular type of cheese made worldwide. Therefore, “Cheddar” by itself cannot be registered as a GI because it has become generic. However, a more specific term like “West Country Farmhouse Cheddar” has been protected as a GI because it refers to a specific region and production method.
• Unprotected in country of origin: Indications which are not protected as GIs in their country of origin or have fallen into disuse.

These provisions ensure that the GI system maintains its integrity and protects only those indications that genuinely represent a specific geographical origin, quality, and reputation.

Q14. What amounts to infringement of trademark ? Discuss the remedies available for the infringement of trademark.

Ans. Trademark infringement occurs when an unauthorized person uses a registered trademark in a manner that violates the exclusive rights of the registered proprietor. Section 29 of the Trade Marks Act, 1999, defines the various activities that constitute infringement. What amounts to Infringement: A person infringes a registered trademark if they, not being a registered proprietor or a permitted user, use in the course of trade a mark which is:

1. Identical Mark and Identical Goods/Services (Sec 29(1)): Identical with the registered trademark and is used in relation to goods or services for which the trademark is registered.
2. Similarity and Likelihood of Confusion (Sec 29(2)): Similar to the registered trademark and is used for identical or similar goods or services, causing a likelihood of confusion on the part of the public.
3. Identical Mark and Dissimilar Goods/Services (Sec 29(4)): Identical or similar to the registered trademark, but used for dissimilar goods or services, if the registered mark is a well-known mark in India and its use takes unfair advantage of or is detrimental to the distinctive character or repute of the registered trademark.
4. Use as a Trade Name (Sec 29(5)): If a person uses the registered trademark as their trade name or part of their business name.
5. Use in Advertising (Sec 29(8)): If a person uses a registered trademark in advertising which is against honest industrial or commercial practices, or is detrimental to the distinctive character or repute of the registered trademark.

Remedies Available for Infringement:

A trademark owner whose rights have been infringed has several legal remedies available. These can be broadly classified into civil, criminal, and administrative remedies.

1. Civil Remedies (Section 135):

• Injunction: This is a court order directing the infringer to stop the infringing activities immediately. It can be temporary (interlocutory) or permanent.
• Damages or Account of Profits: The plaintiff can either claim damages for the loss suffered due to infringement, or compel the infringer to hand over all profits earned from the infringing activities (account of profits). The plaintiff can choose either of the two.
• Anton Piller Order: This is an ex-parte order allowing the plaintiff to enter, inspect, and seize infringing goods, documents, and evidence from the defendant’s premises to prevent them from being destroyed.
• Delivery up and Destruction: The court can order all goods with infringing labels and marks to be destroyed or delivered up to the plaintiff.

2. Criminal Remedies (Chapter XII):

• The Trade Marks Act makes applying a false trademark or selling goods with a false trademark a criminal offence.
• The punishment includes imprisonment for a term between six months to three years and a fine between Rs. 50,000 to Rs. 2 lakh .
• The police are empowered to conduct search and seizure of infringing goods without a warrant upon an opinion from the Registrar.

3. Administrative Remedies:

• Opposition: Opposing the registration of a similar mark upon its publication.
• Cancellation: Filing a petition to remove a wrongly registered or unused mark from the register.
• Border Measures: Trademark owners can record their registered trademarks with customs authorities to prevent the importation of infringing goods.

This comprehensive framework of remedies provides trademark owners with robust tools to protect and enforce their valuable intellectual property.

Q15. Describe the procedure for the International Application under the Madrid System.

Ans. The Madrid System is a centralized, convenient, and cost-effective global system that allows trademark owners to seek and manage protection for their marks in multiple countries. The system is governed by two treaties: the Madrid Agreement and the Madrid Protocol . India is a member of the Madrid Protocol. The system is administered by the World Intellectual Property Organization (WIPO). The procedure for filing an international application under the Madrid System involves the following steps: Pre-requisites:

• Connection to Home Office: The applicant must have a real connection to a member country (“Contracting Party”) of the Madrid System, i.e., be a national of, be domiciled in, or have a real and effective industrial or commercial establishment in that country.
• Basic Mark: The applicant must already have an application (“basic application”) or a registration (“basic registration”) for the same mark in their home IP office (“Office of Origin”). The international application is based on this basic mark.

The International Application Process:

Step 1: Filing the Application through the Office of Origin

The applicant files one international application through their

Office of Origin

(e.g., the Indian Trademark Office for an Indian applicant). The application lists the member countries (“designated Contracting Parties”) in which protection is sought. The Office of Origin certifies that the mark, applicant’s details, and list of goods/services in the international application are the same as in the basic mark. It then forwards the application to WIPO.

Step 2: Formal Examination by WIPO

WIPO conducts a

formal examination

of the application to ensure it complies with the rules of the Madrid System (e.g., payment of fees, proper classification of goods and services). WIPO does not conduct any substantive examination on the distinctiveness of the mark or conflict with prior marks.

Step 3: Registration in the International Register and Publication

If the application meets the formal requirements, WIPO records the mark in the

International Register

and publishes it in the

WIPO Gazette of International Marks

. WIPO sends the applicant a certificate of international registration. It’s important to note that this is not yet a grant of protection in the designated countries.

Step 4: Substantive Examination by Designated Countries

WIPO then notifies the IP offices of all the designated Contracting Parties (DCPs) that the applicant has chosen in their application. Each designated office then conducts a

substantive examination

of the mark according to its national laws and procedures. They examine it just as they would a national application, including for objections on absolute and relative grounds.

Step 5: Grant or Refusal of Protection

Each designated office has a set time limit (usually 12 or 18 months) to refuse protection.

• If an office refuses protection, it must send a notification to WIPO, which then informs the applicant. The applicant then has the opportunity to respond to the refusal directly before that national office.
• If an office does not issue a refusal within the time limit, protection is automatically granted for the mark in that country.

This system greatly simplifies the process for trademark owners to seek protection in over 125 member countries with a single application and one set of fees.

Q16. Discuss the salient features of the Geographical Indications of Goods (Registration and Protection) Act, 999.

Ans. The Geographical Indications of Goods (Registration and Protection) Act, 1999, which came into force on September 15, 2003, is a landmark legislation for the protection of Geographical Indications (GIs) in India. Enacted in compliance with India’s obligations under the TRIPS Agreement, the Act provides a robust legal framework to preserve and promote the country’s heritage of traditional and geographically unique products. The salient features of the Act are as follows: 1. Definition of Geographical Indication (Section 2(1)(e)): The Act defines a GI as an indication that identifies agricultural, natural, or manufactured goods as originating from a specific geographical territory, where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin. Examples include Darjeeling Tea, Kanchipuram Sarees, and Nagpur Oranges. 2. System of Registration: The Act establishes a system for the registration of GIs. It set up a Geographical Indications Registry in Chennai, which is responsible for processing GI applications and maintaining the register. 3. Who can Apply: Unlike a person or company, an application for the registration of a GI can only be made by any association of persons or producers or any organization or authority representing the interests of the producers of the concerned goods. This reflects the collective nature of a GI. 4. Duration and Renewal of Registration: A registered GI is granted protection for a period of ten years . It can be subsequently renewed for further periods of ten years each, making protection potentially perpetual. 5. Rights Conferred by Registration (Section 21): Registration gives the registered proprietor (usually the producer’s association) and the authorized users the exclusive right to use the GI. It gives them the right to prevent others from using the GI for products that do not meet the prescribed standards. 6. Protection from Infringement (Section 22): The Act clearly defines what constitutes infringement of a GI. This includes using the GI on a product that does not originate from that region, or using it in a way that misleads the public, or constitutes an act of unfair competition. 7. Non-Assignability: Unlike a trademark, a GI is a public property and cannot be assigned, transferred, licensed, pledged, or sold. It is inseparably linked to the geographical region it represents. 8. Remedies: The Act provides strong enforcement mechanisms for the infringement of GIs. This includes civil remedies such as injunction and damages, as well as criminal remedies like imprisonment and fines. 9. Prohibition of Registration of certain GIs (Section 9): The Act prohibits the registration of indications that have become generic, are misleading, or are contrary to public order or morality. 10. Additional Protection for Wines and Spirits: In line with TRIPS requirements, the Act provides a higher level of protection for GIs for wines and spirits, even where there is no danger of the public being misled. In essence, the Act not only protects the economic interests of Indian producers but also preserves India’s rich cultural heritage and ensures product authenticity for consumers worldwide.