Our Frequently Asked Questions section offers quick answers to the most common questions received from Helpdesk users. Questions are related to different IP topics, with a special focus on trademark and patent registration in India. We will continuously update this FAQs section. However, should you do not find the answer you are looking for, please do not hesitate to contact with our free helpline service.
About the India IP SME Helpdesk
The India IP SME Helpdesk is an initiative funded by the European Union to support European SMEs in protecting their intellectual property rights in India.
The India IP SME Helpdesk provides the following services free-of-charge:
- Helpline service, answering all IP-related enquiries within 3 working days.
- Training service, training sessions on matters of IP protection in India organised online and on-sight throughout Europe.
- IP Resources, a library of material providing practical information related to IP protection in India.
IP Rights in General
All applications for the registration of IPRs in India must be filed either in English or in Hindi.
The Office of Controller General of Patents, Designs, and Trade Marks (CGPDTM), India’s IP Office, is the government agency administrating the issuance and management of all IP rights in India. It is located in Mumbai and oversees the work of all its branches, each specialised in a specific IP right, which are located across different cities in India.
Applications for the registration of IP Rights such as patents, trade marks or design rights can be filed by the applicant directly. It is however always recommended to go through a specialised IP agent to ensure the greatest probability of success of the application.
Note however that applicants which do not have an address or place of business in India must be represented by a local agent.
India protects copyright, trade marks, patents, industrial designs, geographical indications and semiconductor integrated circuits layout designs.
Indian law recognises three categories of IPR applicants: individuals, start-ups and small entities, and large entities.
Start-ups and small entities can benefit not only from reduced official fees, but can also avail the option of accelerated application procedures, reducing the time necessary to obtain their IPR registrations. The applicants who declare themselves as start-ups or small entities are required to provide evidence that they meet the related criteria in regard to size, turnover, period of incorporation or registration, which is also applicable for foreign applicants.
No. As per the EU definition, an SME is an organisation which employs less than 250 persons and which has an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.
A small entity in India is defined as an entity which manufactures and produces goods or provides services whilst investment in machinery/ equipment does not exceeds 100,000,000 INR (approximately EUR 1,14 million) and its turnover does not exceed 5,00,000,000 INR (approximately EUR 5,7 million).
Trade Marks in India
India participates in the Madrid System, an international trade mark applications can therefore be applied for in regards to India.
Trade marks are valid and enforceable in India for 10 years from the date of filing of the application. Trade mark rights can be renewed every 10 years.
The cost for the trade mark registration is 4,500 INR (approximately 51 EUR) for Individual / Start-up/ Small Enterprise, and 9,000 INR (approximately 102 EUR) for the other applicants per each class and each mark. Renewal fees are 9,000 INR (approximately 102 EUR) per each class and each mark.
India accepts multi-class trade mark applications, which means that one application may cover products and services from different classes according to the Nice Classification.
Performing a trade mark search of the Indian Trade mark Registry can ensure whether any registered trade mark is identical or deceptively similar to your mark or brand name. The search can be performed in the official website of Indian Trade mark Registry in India: http://ipindiaonline.gov.in/tmrpublicsearch/frmmain.aspx
The trade mark registration process can be completed within 6 to 24 months depending on whether there are objections or oppositions by a third party after filing the application or not.
To be registered in India, a trade mark must be distinctive i.e. it must be capable of distinguishing the goods or services of one company from those of another; the trade mark must not be functional, i.e. it must not be similar or identical to the goods or services they represent. Moreover, the trade mark must also not be identical to the name or flag of a state, or hurt religious sentiments of Indian citizens and it must not be similar or identical to an earlier trade mark.
In general, it can be said that the requirements are quite similar to those applied in Europe.
Indian trade mark law allows registration of non-traditional trade marks such as colours and sounds. Scents are also protected in principle, provided that they are represented graphically in the application. So far, no scent trade mark has been registered in India.
Patents in India
An application for a patent can be filed at the Office of the Controller General of Patents, Designs and Trade Marks, generally known as the Indian Patent Office (IPO), either in hard copy or through their online filing system. The applicant for a patent must submit a complete or provisional specification which is legal document describing invention in English, along with requested forms and fees.
The IPO automatically publishes your patent application in the Official Patent Journal within 18 months from the date of filing or at a priority date i.e. date of filing the first application in your home country, whichever is earlier. You can also request for early publication by submitting the prescribed form with prescribed fees thereby your application will be published in the Official Patent Journal within one month from receiving such request.
Before publication, IPO will maintain the content of the application confidential.
Patents grated in India are valid and enforceable for 20 years from the date of filing of the application.
No, India does not have a utility model protection system.
If you are an EU applicant who wishes to file an application for an Indian patent and who does not reside or have their place of business in India, you are required to engage a registered patent agent. You will have to provide your patent agent with a power of attorney which must be submitted within three months from the date of filing the patent application to the IPO.
The IPO will examine your patent application only after you file the request for examination along with proof of payment of the prescribed fees. The request for examination must be filed within 48 months either from the priority date or the date of filing of Indian patent application, whichever is earlier. If you are an SME or start-up you can also apply for expediated examination by submitting the required form and fees. If you do so, your application will be examined within three months from filing such request.
Upon examination of your patent application the IPO issues the First Examination Report (FER) which is electronically delivered to your patent agent. Your patent agent will have to prepare a document called “Response to the FER” addressing all formal and substantial objections which were raised by the Examiner and Controller. The “Response to the FER” must be submitted along with all necessary amendments in the patent specification, forms and required documents within six months of issuance of the FER. Subsequently, the patent examiner evaluates whether all formal and substantial objections raised by the FER have been complied with and if so, the Controller grants the patent.
If the response to the FER does not sufficiently address formal and substantial objections raised, the Controller issues a hearing notice to your patent agent to attend an oral hearing. The objections cited in the hearing notice are usually in regard to more complex issues such as scope of the claims, novelty and inventive step or patentability of subject matter. After your application is discussed at the hearing, the patent agent will file ‘Hearing Submissions’. If the Controller is satisfied with the amendments in the patent specifications or the arguments outlined in the hearing submissions, the Controller grants the patent. If the hearing submissions fail to address objections raised by the Controller, the application is rejected.
According to the latest statistics, the IPO takes on average 48 months to give a final decision in regard to a patent application. If you avail the option of expediated examination, your Indian patent can be granted within twelve to 18 months.
The status of the application along with the complete “file wrapper” which contains the complete specification, forms, power of attorney, translations, etc., can be accessed via the system inPASS.
The Indian law recognises four categories of patent applicants: 1)natural person, 2) start-up,3) small entity,and 4) large entity. For a small entity, start-up and natural person, the official application fee is 1600 INR (approximately 18 EUR) for a single priority (the earliest patent application filed for the same invention) for every additional claimed priority the application fee gets multiplied. For example, if your Indian application claims priority from two foreign patent applications then the official application fee for a start-up would be 3200 INR (approximately 36 EUR).
The official application fee for a large entity is 8000 INR (approximately 90 EUR) for a single priority. Similarly, for every additional priority application fee for the the large entity is multiplied accordingly.
After filing a patent application in your home country, you have to file the corresponding patent application in India within 12 months from the date of filing of the earliest application, otherwise, it might get rejected. Alternatively, if you file a patent application under the Patent Cooperation Treaty (PCT) route you can select India as one of the designated states. The application must enter the Indian national phase within 31 months from the date of the earliest application.
Unfortunately, you can only stop any infringer and enforce your IP right once your patent is granted by the Indian Patent Office (IPO). You can however claim damages for infringing actions which have taken place after the date of publication of your patent application.
Generally speaking, any public disclosure of an inventions before the filing of the patent application results in a loss of novelty which can lead to the patent application being rejected. Indian patent law however provides a grace period of 12 months prior to the filing of the application during which certain disclosures of the invention will not be taken into account. This applied to disclosures during exhibitions organised by the Government and notified to the IPO. However, it is always advisable to file a patent application first before any public disclosure of the invention.
If the invention was made in India you are required to file your first patent application for this invention with the Indian Patent Office (IPO). Only 6 weeks later can you proceed with any foreign filing or the filing of a PCT application. If you want to file a patent application in a foreign country or as an international PCT application without prior Indian filing, you must request the IPO to issue a so-called Foreign Filing License (FFL). The FFL is usually issued within 21 days from filing of the FFL request.
Yes. The Indian patent law mandates that every patent holder and every licensee, whether exclusive or otherwise, is required to submit annually a document called “Statement of Working” indicating whether the invention disclosed in the patent has been commercially exploited. Not complying with this requirement might be considered a punishable offence under Indian Patent Act. A patent attorney or patent agent can guide you on how to fill in Statement of Working and file it on your behalf at the IPO.
Software per se (the code of your software) is not considered patentable under Indian Patent Law. However, if the invention uses software in combination with hardware element(s), provides technical effect and fulfils patentability criteria, in that case the invention might be eligible for a patent protection. The source code of your software can be protected by copyright.
No, it would not. Since a patent is a territorial right, it is only valid in the country in which it is registered. Hence, it is essential to also file a patent application for your product or technology in India. If not, you cannot enforce your rights or stop infringement.
Industrial Designs in India
No, India does not participate in the Hague system for the international registration of design rights. Therefore, applications must be filed directly with the India IP Office to protect industrial designs in this territory.
Industrial design rights are valid and enforceable for 10 years from the date of filing of the application. Protection can be renewed once for an additional period of 5 years.
Application fees for a design registration are 1,000 INR (approximately 11 EUR) for natural person, start-up and/or small entity and 4,000 INR (approximately 45 EUR) for others. In addition, the renewal fees for a design are 2,000 INR (approximately 23 EUR) for a natural person start-up and small entity, and 8,000 INR (approximately 90 EUR) for others.
No, industrial design rights are only enforceable in India if it has been registered with the Indian IP Office. In certain cases, copyright protection may also be available until registration of the design.
The Indian Design Act provides protection for a shape, configuration, surface pattern, colour, or line (or a combination of these), which can be applied to a two-dimensional or a three-dimensional functional article which is manufactured by industrial process. Industrial design only protects aesthetics and looks of the article, not its functional elements.
A design application can be filed with the Indian Design Office either in hard copy or through an online filing system along with necessary forms and fees. After submission, the examiner reviews your application and issues an Examination Report. You or your appointed patent agent will have to respond to the Examination Report within 6 months after its issuance. If all objections raised by the Examiner are resolved, the application will proceed for registration. Alternatively, the Examiner will appoint a hearing to discuss the objection(s) and consequently the application is either registered or rejected by the Design Office.
If you are an EU applicant who wishes to file an application for an industrial design and who does not reside or have their place of business in India, you are required to engage an Indian registered patent agent. Patent agents can deal with both patent and industrial design applications. You will have to provide your patent agent with a power of attorney to act on your behalf.
Like the EU and all its member states, India is a signatory to the Locarno Agreement. Therefore the Indian Design Classification System has been harmonised with international norms and you do not have to reclassify your design applications which you might have filed in your home country.
After filing a design application in your home country (or elsewhere), you must file a corresponding application for the same design in India within 6 months from the date of filing of the earliest application. If you fail to do so, the Indian application might get rejected for lack of novelty and the inability to claim priority based on your earlier application once these 6 months have passed.
You can protect a product or technology by both an industrial design and a patent, as an industrial design protects their looks and a patent protects its functional features which are new and inventive.
However, in the case of artistic work (which can include elements protectable as designs), copyright protection automatically arises from the moment of its creation. If you register an industrial design for such work, then the copyright protection ceases to exist as the dual protection is not allowable.
Moreover, in the absence of design registration, copyright protection will also come to an end whenever any article to which the work is applied, has been reproduced by an industrial process more than 50 times.
Copyright in India
Copyright over a work in India exists from the moment the work protected has been created. Copyright is therefore not mandatory in principle.
However, it is always recommended to register your copyright in India as it can greatly facilitate any enforcement measures to be taken in case of infringement by a third party.
The duration of the copyright protection varies according to the nature of works. In the case of musical, artistic and literary works, copyright subsists for the lifetime of the author plus 60 years after his/her death. Films, photographs, and software are protected for 60 years from the year of their public disclosure. The rights over broadcasts last for 25 years from the year of broadcast and performers rights last for 50 years from the year the performance was made.
The official fees for registration of copyright can range from 500 INR (approximately 6 €) to 5,000 INR (approximately 60€), depending on the type of work. The registration of literary, dramatic, musical and artistic work requires to pay 500 INR (6€) per work. The fees for an application for copyright registration for a sound recording and in a cinematographic film are 2000 INR (approximately 23€) and 5000 (approximately 60€) respectively.
Yes. Computer programmes, software and mobile applications can be protected as literary work under Indian Copyright laws. The applicant has to provide the source code and the object code of the software as part of the application for copyright registration.
An application for registration can be filed with the Indian Copyright Office either physically or through e-filing by submitting the requires forms and fees. After submission the applicant must wait for 30 days during which any third party can raise objection to registration of copyright over the work in question.
In case no objection has been raised by any third party, the copyright examiner reviews the application and issues an examination report. If positive, a certificate of registration is issued. Otherwise, the applicant must respond to the report and if the examiner finds the response satisfactory, the copyright is registered and a certificate of registration issued.
In case of any objection by a third party, a hearing order is issued to both parties to address the objection. If the objection is resolved, the application proceed for examination, otherwise the application is rejected.
Yes. An application for registration of both published and unpublished work can be filed under the copyright laws of India.
Usually, if there are no objections from any third party, the full registration procedure takes between 2 to 3 months from the date of filing of the application.
If you do not want to disclose the whole source or object code of your software to the Copyright Office, there are special deposit rules for software code which allow the applicant to submit only the first and last 10 pages of the code if it is over 20 pages long. If the software code is less than 20 pages long, the entire code must be submitted.
Geographical Indications in india
Whilst in Europe GIs are limited to agricultural goods and beverages such as wine and spirits only, Indian law grants GI protection not only to agricultural goods, but also to natural and manufactured goods and goods of handicraft originating from a specific, geographical region.
The registration of a GI is valid for a period of 10 years, and cab ne renewed every 10 years.
An application to register a GI in India can be filed by an association of persons or producers, or any organisation representing the interests of the producers of the relevant goods.
An application accompanied by the necessary documents and fees has to be submitted either physically to the Geographical Indications Registry of India, or through the online filing system available at: https://online.ipindia.gov.in/eGir/goForLogin/doLogin.
As part of the application, all details regarding GI registration in other countries or territories for the same claimed GI must be included.
After submitting an application, the Examiner reviews the application for any deficiency. In case documents are missing, the applicant has one month to provide any missing documents to the GI Registry. After submission of the documents, the examiner examines the application and issues an Examination Report. The applicant must respond to objections raised by the Examiner within two months. If the Examiner is not satisfied with the response to the objection he may schedule a hearing. After the hearing, subject to meeting all criteria and the applicant satisfactorily responding to the objections raised in the examination report, the Registrar will advertise the application inviting any oppositions from the public for a period of 4 months. In case no opposition is filed within this timeframe, it will be registered. If there is a failure to attend to the requirements and objections raised, the application will be abandoned by the Registry.
The official fee to file an application for registration of a GI is 5000 INR (approximately 57€)
The registration procedure usually takes 10 to 12 months from the date of filing of the application, and the status of the application can be monitored through the website of the GI registry.
GIs, like all IP rights, are territorial in nature. Therefore GIs registered in Europe are not valid in India. Having said that, in case of prior use of a European GI in India, any documentary evidence proving prior use by the GI holder such as invoices, publicity, and export figures, can be used to enforce an unregistered GI in India under the common law principle of passing off (i.e. demonstrating that a third party has lead customers to falsely believe their goods were those of another business). However, providing evidence can be cumbersome and hence it is always recommended to register GIs in India to ensure sufficient protection and speedy enforcement should infringement cases arise.
No. A GI is registered by an association or an organisation representing producers of the relevant goods in the particular geography, and it can therefore not be assigned, transmitted or licensed.
After expiration of a registered GI right, it can be renewed within a year. However, it the renewal documents have not been transmitted to the registry within 6 months after expiration, the GI will be removed from the registry. If the application for renewal is made after 6 months but with the 1 year period since expiration of the GI, the Registry will renew the GI put the GI back in the register.
If the GI is no registered within 1 year following expiration, the GI cannot be reinstated into the registry.