For the online registration of trademark, the user must login to the website of ipindia.nic.in. The users have to be registered for logging in. If a user is already registered, then he can log in by using the User ID and Password or Digital signature. The trademark registration can either be done by the proprietor himself or by his agent or attorney.

After the successful registration, the user can login either with User Id and Password or User Id and Digital Signature as provided in the drop box of ‘Login With’ option.

On successful login, the username and its user code will be displayed on the header.

Applications for International registration can be filed using the web link ‘IAOI’ (International Applications Originating from India) mentioned on the top of the left corner whereas the Domestic Applications can be filed using the web link ‘New Applications’ just below the link of ‘IAOI’.

The steps we follow for filing IAOI are as follows:

When we click on the link of ‘IAOI’ then the following sub-menu appears:

  • New MM2(E) Application
  • Deficiencies
  • Irregularities
  • Forwarded Requests
  • Refused Requests
  • Query
  • Filed MM2 Applications
  • Payment
  • Drafted MM2 Applications
  • Payment History

Steps for Filling New MM2 (E) Application: – On clicking the link of ‘New MM2 (e) Application,’ the following screen gets opened to enable the drafting of the then MM2 form. For filing the form, we can use ‘Guideline link’ available at the top of the FORM “Guideline to fill the MM2 (e) Form.”

Fill all section of MM2 form: –

  • Applicant’s detail
  • Appointment of a representative
  • Basic application or basic registration
  • Goods and services
  • Priority claimed
  • The mark
  • Color(s) claimed
  • Miscellaneous indications
  • Designated contracting parties
  • After filling all fields we click on the submit button and then the system will show a message with a Temporary Application Number, for example: 535
  • We click on preview button to see the details of the drafted application
  • On successful signing the documents with the Digital Signature, the message will appear: “Document signed successfully”
  • Then we click on “Payment” link which shows all signed records in a Grid, and we are required to select any application and click on “make payment” button.
  • After clicking make payment button, then shows an option to “select application payment details” and “terms & conditions” check box.
  • After getting the user’s agreement, the “Make Payment” button will get enabled. On clicking the “Make Payment” button the payment request will be forwarded to Payment gateway in order to complete the payment process. If the payment attempt is successful, a payment Acknowledgement Receipt will be generated.
  • The receipts containing the Receipt No., and Permanent Application No. for all the forms can be generated after two working days from the “payment history tab” subject to realization of amount in Government Account.
  • In case the payment got debited and acknowledgement of the same could not be generated, the payment can be re-verified and settled through pending payment menu after 30 minutes. In the pending transactions menu all the un-settled transactions will be shown. On clicking at the verify button, the server will verify the transaction with the payment gateway. If the payment transaction is successful at the payment gateway then an acknowledgement will be generated otherwise the transaction will be treated as failed transaction and the applications under that transaction can be selected for re-payment from the “Payment tab”.
  • If we want to check the information of application number then we click on “View Details.”

The steps for the filing of the Domestic Applications are as follows:-

  • We click on “New Application Tab” and select File TM-1 and put class in to textbox and submit.
  • After the submission, we find temporary application number (as mentioned above in the case of MM2 (e) Form).
  • Then we click on the close sign which redirects to the Drafted Application list.
  • We click on edit link then open TM-1 Form.
  • We fill all the fields, and digitally sign the documents.
  • After successfully signing them, then comes the payment tab. There we find all the signed applications and we are required to select the particular one.
  • At last we click on the “Make Payment link” and thereafter, we complete the process of payment.
  • Rest of the processes with regard to generation of receipts follow the steps that are taken after making the payment in the case of MM2 (e) Form (See above).

A patent specification is a technical document describing the invention. To explain an invention, a description of the same is essential and the description of the patent is called ‘specification’.

An invention needs to be explained to enable the general public to use the invention after the expiry of the protected period. The specification is an essential part of the patent application. The description of the invention in the specification is, in fact, the consideration in lieu of which an exclusive right in the form of patent is granted.

Nature of the Patent Specification:

A patent specification is not merely a description of the invention but it is also a technical and legal document. The importance of the claims in a specification is realized when the technical interpretation of the specification considered by the Examiner in the Controller’s Office. The description should satisfy the Examiner concerned that there indeed is an invention. The importance of specification arises when any party alleges that the specification of the applicant does not fully and sufficiently describe the invention and opposes the application on such ground. The specification has then to successfully meet the ground of opposition which it can only if it gives sufficient description of the invention.

Kinds of Specification:

A specification under patent law is of two types:-

  1. Provisional Specification– When an inventor is in the process of finalizing his invention, he may file a specification known as ‘Provisional Specification’ which is not a full and specific description. It contains only a general description of the invention, its field of application and anticipated result. The provisional specification need not to contain the claims. A provisional specification is filed to fix the priority date of the patent.
  2. Complete Specification-The Complete Specification is the full description of the invention containing all the claims over which applicant seeks monopoly right. The object of a complete specification is to define clearly and with precision the monopoly claimed so that others may know the exact boundaries of the monopoly right of the applicant.

Section 9 of the Indian Patents Act, 1970, provides that where an application for a patent (not being a convention application or an application filed under the Patent Co-operation Treaty designating India) is accompanied by a provisional specification, a complete specification is shall be filed, within 12 months from the date of filling of an application, and if it is not so filed, then the application shall be deemed to have been abandoned.

Every Specification, whether provisional or complete, shall be made in Form 2 as specified in the Patent Rules, 2003.

Importance of Specification

The specification is the essence of the invention. It builds the boundaries around the monopoly right of the applicant. Anything falling outside the limits of such boundary cannot be claimed by the applicant. Any right within the limits of the specification cannot be denied. Therefore, the drafting of the specification is of utmost importance in creating the exclusive right and maintaining such rights. The claims must include all possible equivalent variations of the invention to guard against infringement. The aim of the applicant should be to obtain the broadest possible valid claims. The validity of a patent can be challenged if the claims are vague or too broad. The specification has to be drafted by skilled professionals.

Double Taxation Avoidance Agreement (DTAA) also referred as Tax Treaty is a bilateral economic agreement between two nations that aims to avoid or eliminate double taxation of the same income in two countries.

Sections 90 and 91 of the Income Tax Act, 1961 provide for double taxation relief in India.

Section 90 (1) provides that the Central Government may enter into an agreement with the government of any country outside India or specified territory outside India,-

  • For the granting of relief in respect of –
    • income on which income-tax has been paid both in India and in that country or specified territory; or
    • income-tax chargeable under this Act and under the corresponding law in force in that country or specified territory to promote mutual economic relations, trade and investment; or
  • for the avoidance of double taxation of income under this Act and under the corresponding law in force in that country or specified territory; or

Accordingly, the Central Government has notified that where such an agreement provides that any income of a resident of India may be taxed in the other country then, such income shall be included in his total income chargeable to tax in India in accordance with the provisions of the Income-tax Act, 1961, and relief shall be granted in accordance with the method for elimination or avoidance of double taxation provided in such agreement.

  • For exchange of information for the prevention of evasion or avoidance of income-tax chargeable under this Act or under the corresponding law in force in that country or specified territory or investigation of cases of such evasion or avoidance; or
  • For recovery of income-tax under this Act and under the corresponding law in force in that country or specified territory.

Where the Central Government has entered into such an agreement with the Government of any country outside India or specified territory outside India for granting relief of tax, or for avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee.

The DTAA’s under Section 90 are intended to provide relief to the taxpayer, who is resident of one of the contracting countries to the agreement. Such tax payer can claim relief by applying the beneficial provisions of either the treaty or the domestic law. However, in many cases, taxpayers who were not residents of a contracting country also resorted to claiming the benefits under the agreement entered into by the Indian Government with the Government of the other country. In effect, third-party residents claimed the unintended treaty benefits.

Therefore, section 90(4) provides that the non-resident to whom the agreement referred to in section 90(1) applies, shall be allowed to claim the relief under such agreement if a Tax Residence Certificate (TRC) obtained by him from the Government of that country or specified territory is furnished declaring his residence of the country outside India or the specified territory outside India, as the case may be.

Also, section 90(5) requires the assessee referred to under section 90(4) to provide such other documents and information as may be prescribed.

Therefore, a certificate issued by the Government of a foreign country would constitute proof of tax residency, without any further conditions regarding furnishing of “prescribed particulars” therein. In addition to such certificate issued by the foreign Government, the assessee would be required to provide such other documents and information, as may be prescribed, for claiming the treaty benefits.

The position of law is that the double taxation avoidance treaties entered into by the Government of India override the domestic law. This has been clarified by the CBDT Circular No.333 dated April 2, 1982, which provides that a specific provision of the DTAA will prevail over the general provisions of the Income-tax Act, 1961. Therefore, where a DTAA provides for a particular mode of computation of income, this mode will take precedence over the Income-tax Act, 1961. However, where there is no specific provision in the treaty, then the Income-tax Act will apply.

 

Copyright © 2016 LetsComply.com. All rights reserved.