The Patent (Amendment) Rules, 2017 – Enabling Foreign Startups to avail benefits

The Patent (Amendment) Rules, 2017 [which came into effect on December 01, 2017, vide Gazette Notification] have amended the definition of the term “Startup” under the Patents Rules, 2003 to include within its scope the foreign startup companies (viz. startups having registered office outside India). Firstly, the new definition has done away with all details of qualifying criteria for a Startup under the previous definition, and has simply added a qualifier for Startup to mean “an entity in India recognized as a startup by the competent authority under Startup India initiative”. Secondly, in respect of foreign entities, the definition includes those entities which fulfill the “criteria for turnover and period of incorporation/registration as per Startup India Initiative and submitting declaration to that effect.”

Accordingly, for Indian Entities to avail startup benefits under the Patent regime, they need to get themselves enrolled under the Startup India Initiative, for which the following criteria needs to be fulfilled:

(a) The entity should be incorporated as a private limited company or registered as a partnership firm or a limited liability partnership;

(b) The entity should be incorporated or registered not prior to seven years; however, for biotechnology startups, not prior to ten years;

(c) The entity’s turnover for any of the financial years since incorporation/ registration should not have exceeded INR 25 crores (approx. USD 4 million);

(d) The entity should not have been formed by splitting up or reconstruction of a business that was already in existence; and

(e) The entity should work towards innovation, development or improvement of products or processes or services, or should be a scalable business model with a high potential of employment generation or wealth creation.

For Foreign Entities, however, the criteria that needs to be fulfilled (and established) are:

(a) The entity should be incorporated or registered not prior to seven years; however, for biotechnology startups, not prior to ten years; and

(b) The entity’s turnover for any of the financial years since incorporation/ registration should not have exceeded INR 25 crores (approx. USD 4 million).

A foreign company will need to provide a declaration to the effect that these criteria are fulfilled in order to avail benefits.

Pursuant to this amendment, any foreign company qualifying as a “Startup” is entitled to avail benefits provided under the patent regime in India, which includes rebate of upto 80% on official charges payable at the Patent Office.

ALG Declared Intellectual Property Law Firm of the Year in India

We are pleased to share that ALG has been chosen as the winner of 2018 Corporate Intl Magazine Global Award for ‘Intellectual Property Law Firm of the Year in India’.
We thank our clients for their continued support and the confidence they have reposed in us over the years.

Indian Patent Office’s (IPO) growing popularity as International Search Authority (ISA)/ International Preliminary Examining Authority (IPEA)

The Controller General of Patents, Designs and Trademarks (CGPDTM) has published data this week on discernable trends of the number of PCT Applicants opting for the IPO as ISA and/or IPEA since 2013.

The number of search copies received by the ISA/IN per fiscal year has seen an increase from 123 (FY 2013-14) to 940 (FY 2016-17). Likewise the number of demands received by IPEA/IN per fiscal year has seen an increase from 11 (FY 2014-15) to 30 (FY 2016-17).

The data available reflects a seven-fold increase in the number of PCT applicants from India choosing IPO as ISA from FY 2013-14 to FY 2017-18.

The IPO’s popularity as ISA/IPEA may be attributable to two reasons – the relatively lower official charges of the IPO; and the applicant becoming eligible for expedited examination of the corresponding national application for patent in India. The IPO has reportedly received 181 requests for expedited examination till October 31 through ISA/ IPEA route.

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Intellectual Property Owners’ Association publishes White Paper with ALG’s contributions

The Intellectual Property Owners Association (IPO) has published a white paper titled “Protection of Graphic Logo Trade Marks Around the World – Copyright or Trade Mark Enforcement? An International Survey of Twenty Countries”, whose India position has been contributed by ALG’s Sheja Ehtesham.

The White Paper can be accessed here :-

Louboutin’s “Red Sole Trademarks” found to be well-known marks

The Delhi High Court (vide its December 12, 2017 order) has found Christian Louboutin SAS’ “Red Sole Trademarks” to be well-known marks. The reasons for such finding, as extracted from the order, are as follows –

• The plaintiff is well-known luxury brand with presence in over 60 countries including India;

• The plaintiff has been using its ‘RED SOLE’ trademarks extensively and continuously since 1992;

• The plaintiff’s ‘RED SOLE’ trademarks are known to customers throughout India;

• The plaintiff is recognised as a sole licensor of the Christian Louboutin trademarks and has successfully enforced its rights in the said trademarks;

• The plaintiff has extensively promoted its luxury products under its Christian Louboutin trademarks including the ‘RED SOLE’ trademark in India;

• The plaintiff has extensive presence over the Internet;

• The plaintiff’s website is accessible to consumers in India and have served in making customers in India aware of the plaintiff, the various luxury products of the plaintiff and the plaintiff’s well known trademarks including the ‘RED SOLE’ trademark;

• The plaintiff has received various awards and accolades for the luxury products made available under the plaintiff’s well- known trademarks including the ‘RED SOLE’ trademark.”

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