WHAT IS A STARTUP?

Earlier this year, the Government of India announced the much awaited ‘Startup India’ initiative for creating a conducive environment for the inception and continuance of startups in India. Various Ministries have initiated a number of activities for this purpose. To bring uniformity in the identified enterprises, an entity shall be considered as a ‘startup’ under the following circumstances –

  1. a) It will be a startup till up to five years from the date of its incorporation/registration,
  2. b) If its turnover for any of the financial years has not exceeded Rupees 25 crore, and
  3. c) It is working towards innovation, development, deployment or commercialization of new products, processes or services driven by technology or intellectual property; Provided that any such entity formed by splitting up or reconstruction of a business already in existence shall not be considered a startup.

As a developing number of individuals begin their own particular startups, they need to comprehend the nuts and bolts of different matters which will influence their business. One territory that should be comprehended by business visionaries is intellectual property (IP).IP for Startups incorporates patents, trademarks, copyrights and many others.

INTELLECTUAL PROPERTY AND STARTUP

An expansive bit of your advantage in competition and your potential esteem to speculators is the size and clarity of your IP startup portfolio. Some items which have to be referred to before you start funding:

  1. The first thing which becomes a part of your intellectual property is the company name.
  2. There should be one internet domain name created apart from the company name.
  3. Protection through Patents which include innovations and novelty.
  4. Protection through Copyright which includes some written materials, music created by them and many other things.
  5. Protection through trademark which gives protection to a name, logo or symbol used by the startup.
  6. Trade secrets which are used by companies to develop their business which should not be shared with anyone.
  7. Protection given to business plans.

Dealing with these regularly neglected legal methodology guarantees better organization survival rates and shields organizations from suing or be sued for stolen works, stock, or logos. Dealing with these legalities can be dubious, tedious, and an exorbitant method. However, recall that, you need to burn through cash to profit, be effective, and remain out of court! In this way, however these procedures may make you feel the need to surrender through and through, recall that your startup will be steadier once you have made these strides and realized why they are so important.

HOW COPYRIGHT IS BENEFICIAL?

Copyright is a critical property of the proprietor. Copyright ensures organizations, writers, authors, programming engineers, specialists, fashioners, planners, artists, computer programmers, software developers and media houses to secure their manifestations like programming, web content, books, recordings, craftsmanship, movies, tunes from copycats. A copyright is acquired naturally by the creator when some inventive type of expression is settled in a tangible medium. Today, robbery and literary theft are more pervasive than any other time in recent memory. Registering your copyright with the Copyright Office is not an essential for copyright security. Although, registration sets up an assumption of ownership and may protect the creator from statutory infringements and lawyer’s charges in litigation. No less than, a legitimate copyright notice ought to be joined to all unique artistic or imaginative works. There are few benefits of copyright protection:

  1. Ownership notice: Your work will be distributed in the Copyright Office’s Catalog and will be searchable to the society at large. Anyone considering utilizing this work will have the capacity to inquiry this Catalog and see that your work is secured.This gives valuable notice to people in general that you possess the work and vanquish cases of infringement. Thus in short the public gets to know that you own the work.
  2. Protects against copycats: No one will set out to duplicate your substance and plans once it is copyrighted. The copyright law gives solid discipline and substantial punishments to the individuals who encroach or abuse the copyrighted substance. Further, providing a protection against people bringing in the infringed copies in India.
  3. Proving Credibility in the market: Individuals will seek the uniqueness of the work and not a mere duplicate from anyplace and neither can any other individual duplicate the substance. Renders economic benefits to the creator of the work by which they can exercise control over their creation and commercialize it..
  4. An important asset: Inventiveness and advancement is fundamental component of business development and securing that innovation is done through copyright. It provides encouragement and protection for creation of new works and in absence of this anyone could take advantage of your labor and intellectual capabilities that you have put into your work.
  5. Spreading of business: Copyright can be authorized and sold for cost under permitted licensing and / or through assigning and it is the major source through which film industry is promoted and publications are done.
  6. Helps to bring legal action: With registration of copyright you can bring a suit of civil nature against an infringing party. This legal action has to be taken within 3 years as per the Limitation Act 1963, presenting all the facts and circumstances. Criminal proceedings can also be instituted simultaneously.
  7. The copyright legislation recognized two forms of rights that can be extended to protect an author’s original work viz. Economic and Moral. Economic rights on one hand protect the author from any kind of economic exploitation of his work whereas, the moral rights guarantee the author’s integrity in a work and protect his paternity over the work even if the work is licensed or assigned.
  8. These copyrighted works can be used, reused, sold and reproduced, imported or exported in whole or part, creation of derivative works, and the owner can pass on the rights to another person.

Introduction

What do we mean by the term “startup”? According to the government notification, an entity will be identified as startup if it fulfils following essentials-

  • Up to five years from the date of its incorporation/registration, if it is incorporated or registered in India;
  • In any preceding financial year its annual turnover has not exceeded Rs. 25 crore;
  • And it is devoted towards innovation, deployment, development, or commercialization of new products, processes or services driven by technology or intellectual property.

Startup can be seen as newly born self-making business, which is infused with new emerging thoughts, innovative products and effective marketing strategy, etc. An entrepreneurial endeavor can be extremely risky, and obviously it is. There are many concerns regarding whether or not it may be successful; what kind of competitors we may face; spending where and how much, and so on. Fortunately, there are some ways through which entrepreneurs can protect their brand,  such as trademark registration, etc.

Normally, there are circumstances wherein startups ignore the need of such protection and then later realize its importance. Imagine a situation when you see an exact copy of your product or your own brand displayed by your competitor which is earning on your creativity and investment. However, you are all safe if you register the trademark before the establishment of your startup.

Benefits of Trademark Registration

In this ferocious competitive era, each business visionary needs to emerge from the group and assemble his own particular picture in the market. They would prefer not to leave any end loose to let other moving quicker, and, thus, right from the main day they begin concentrating on business advancement and attempt to separate themselves from their rivals. Thus, one must not neglect to register the trademark, at the end of the day, which is the initial step to ensure business character and make a specialty advertise for oneself.

Isn’t it true that you connect to an image of a company through its trademark? Thus, trademark registration is just not meant for protection, but also for publicity purposes it is important and essential. Trademark leaves an impression of your brand in the market. In this way, registration of the trademark is an initial step of promoting of startup.

Listing down the benefits and importance of trademark protection as follows:

  1. Trademark registration gives you a selective legitimate right over your business name, and thus protects your brand name and in any case of any infringement done by a third-party you can get a remedy against it. It further prevents competitors to act unfairly using similar brand names or marks.
  2. A registered trademark makes a strong name of your brand in the market. Trademark helps your brand earn esteem among other same level players, and thereby paves the way for your business or brand adding a legal value to your product.
  3. Trademark is normally considered as a valuable asset and is of high significance to a company. The more your business tends to grow, the more significant your image will be. It can make the route for expansion of your business.
  4. Trademark also leads to brand cogency and makes the name credible among the audience and consumers, which later grants monopoly to the startup at the initial phase itself, and thereby creating benefits in the market. It serves as an effective communication object, and in a solitary brand or logo, trademarks can pass on intellectual and enthusiastic traits and messages about you, your organization, and of course your organization’s products. They need not be only words, and can also include designs.
  5. The commercial market area is thronged with a lot of people and it’s difficult to recognize your business from your rivals. Trademarks serves an effective specialized tool to catch consumer’s attention and make your business capable of distinguishing your products from that of others.

Thus, through the Startup India Action Plan 2016, the importance of protection of the Intellectual Property Rights has been realized among the startups. A special focus has been given to trademark registration by startups. Trademark, copyright and patent serve as an important asset for any beginner or startup, and thus are important for them to survive in this competitive startup ecosystem.

Overview

Here is the overview of the procedure for filing an application for international registration of a mark through the Madrid System.

international-trademark-filing-procedure_letscomplyAfter applying for or getting registered a mark with the local or domestic office, it is considered as a “Basic Mark”. Further, a Form MM2 is required to be sent to the local office or the office of origin which forwards it to WIPO.

Basic Requirements

In order to file the international application, the applicant must have to meet the following requirement:

Entitlement

The applicant must:

  • have a business in a Contracting Party, or
  • be domiciled in a Contracting Party, or
  • be a national of a Contracting Party

Basic application/registration (“basic mark”)

The applicant must have applied for or registered a mark with the Office of Origin. This application or registration is known as the “basic mark”.

Note: AnOffice of Origin” is one of the office of the Contracting Parties in which the applicants apply for or register their basic marks. Whereas,”Contracting Parties” constitute Madrid Union, and are parties to the Madrid Agreement and the Madrid Protocol.

The below table demonstrates 98 members (Contracting Parties)of the Madrid Union. You can further select while filing your international application the Contracting Parties where you wish to protect your mark which can later be expanded under the Madrid System.

contracting parties to madrid protocol_letscomply

Form

After applying for or registered a mark before your local Office, it can be used as the basic mark while filing an international application through the Madrid System.

Thus, in order to do so, Form MM2 must be used.

Download the form MM2

This form is required to be sent to your local Office (Office of origin). You cannot send it directly to WIPO.

Your international application should contain at least the following information:

  • Name and address of the applicant;
  • A reproduction of the mark, which must be identical to your basic mark (your local application or registration);
  • Designation of the Contracting Parties in which the mark is to be protected. Note that you cannot designate the Contracting Party of your Office of origin;
  • A list of the goods and services for which the mark is to be protected. This list must be identical to or narrower than the list in the basic mark;
  • The international application fees.

Fees

The fee structure under the international filing comprises of:

  1. A basic fee;
  2. A supplementary fee (depending on the number of classes of goods and services to be protected); and a complementary fee (depending on the number of designated Contracting Parties), or
  3. Individual fees depending on the designated Contracting Parties

You can estimate your fees through the Fees calculator.

Click here for more information about the fees and the payment method under the Madrid system.

Advantages Of Filing An International Application Under Madrid Protocol

  • There is a lower cost of the international filing as compared to individual foreign filings.
  • Better and easy management of renewals, changing of address, change of ownership and it is anytime more cost-effective.
  • Many other countries can be designated at a later stage also.

Introduction To The Concept Of Wager

The term ‘wager’ literally translates to mean ‘a bet’. It is understood as something to be lost or won on the result of a doubtful issue. Wagering contracts are regulated and governed under Sec. 30 of the Indian Contract Act, 1872. defines wagering contracts now in force in India, supplemented in Bombay State by the act for Avoiding Wagers (Amendment) Act, 1865 which amended the Avoiding Wagers Act, 1848 based principally on the English gaming act, 1845 and was repealed by the Contracts Act.

In Hampden v Walsh[1], A wager has been defined as ‘a contract by A to pay money to B on the happening of a given event, in consideration of B paying (this should be “promising to pay”) to him money on the event not happening’.

Section 30 of ‘The Indian Contract Act, 1872’ lays down that ‘agreements by way of wager are void; and no suit shall be brought or recovering anything alleged to be won on any wager, or entrusted to any person to abide the result of any game or other uncertain event on which any wager if made.’ The Section allows for an exception in favour of certain prizes for horse racing.

Essentials of a Wagering Agreement

Essentials of a wagering agreement are as follows:

  1. Future Uncertain Event:A wager is generally made on a future event which needs to be ‘uncertain’[2]
  2. One to Lose, Other to Win:In every wager, there is a gain to one party and a loss to another. In Carlil v Carbolic Smoke Ball Co[3] the contract in question was held not to be in the nature of a wager as the user would not lose anything in case he fails to catch influenza.
  3. Between Two Persons:Duality of parties is a necessary condition for contracts of wager. As it has been said that there can be only two parties to a wager, in the event of their being more than two, the participants must be divided into two sides.[4]
  4. No Other Interest:The parties should not have any other interest in the transaction other than winning or losing.
  5. Expected Benefit Founded On Legal Right:Interestingly, one of the peculiar features of wagering contracts is that any future benefit which is expected and based on a legal right can also be the subject matter of such a contract. Drawing an analogy from this statement, an owner of an orchard can insure “next year’s apple crop” [5], and a person who holds shares in a company can insure against the failure of an enterprise in which the company is engaged.[6]
  6. Parties Having Different Intentions:The requirement of consensud ad idem is to be fulfilled even in wagering agreements. The parties may have different intentions. Such a contract is not a wager.[7]

Lotteries

Lotteries are a game of chance, in which the event, either of gain or loss of the absolute right to prize, is dependent on drawing of lots[8] and therefore it assumes the nature of a wagering transaction. Transactions involving lotteries are not only void, but are rendered illegal as per Sec. 294-A of  The Indian Penal Code, 1860 which declares ‘conducting of lottery a punishable offence’.

Prior to the enactment of Sec. 294 of Indian Penal Code, 1860 lotteries not authorized by the Government were prohibited in India by the Private Lotteries Act, 1844. The act declares all such lotteries “common and public nuisances and against law.”

The landmark case of Dorabji Tata v Lance[9], explains the elements of lottery which make it a part of wagering contract. The Hon’ble Court in this case has held that if a lottery is authorized by the Government, the only effect of such permission is that the persons conducting the lottery will not be guilty of a criminal offence, but the lottery remains a wager.

If the obtaining of property in a suit is left to chance and is dependent on obtaining the “winning ticket”, this amounts to a clear case of a transaction involving lottery and the agreement is void.[10] Similarly, a scheme may be fairly regarded as a lottery if it is clear that whatever other benefit the subscriber or competitor may get in return for his money, the chance of getting a prize  was also a part of the bargain and must have entered into his calculation.[11] When the commission in a scheme was such that it were to be given to any person regardless of their skill or labour but rather upon pure chance, the scheme was a lottery.[12]

Conclusion

Although the concept of lottery is dealt with severity under law, yet there are some shortcomings in the Law of Contracts in India because Sec. 30 fails to define what exactly wager is and has to be interpreted by judicial pronouncements of various countries.

The rationale behind Sec.30 of the Indian Contract Act, 1872 which  treats an agreement by way of wager as void is that the law discourages people to enter into games of chance and make earning by trying their luck instead of spending their time, energy and labour for more fruitful and useful work for themselves, their family and society.[13] The law is made such with a view to inculcate a positive outlook towards earning a living by way of sincere and dedicated efforts towards securing a job. With this view to achieve a social and economical welfare of its citizens, the Indian Contract Act, 1872 is the as it stands.


Endnotes

[1] Hampden v Walsh, 1876.

[2] Beale. H.G., Chitty on Contracts, Sweet & Maxwell Ltd.

[3] Carlil v.Carbolic Smokeball, Co., (1893) Q.B. 256

[4] Ellesmere v Wallace, (1929) 2 Ch. 50.

[5] Thacker v Hardy,(1878) 4 Q.B.D. 685

[6] Wilson v Jones, (1867) L.R. 2 Ex. 139.

[7] Thacker v Hardy, (1878) 4 Q.B.D. 685.

[8] Maung San v I.T.A. Club, 38 IC 566; Kamakshi v Appavu, I MHCR 448

[9] Dorabji Tata v Lance, (1918) 42 Bom. 676;41 I.C. 689.

[10] Kaluram v. Ram, 3 I.C. 55.

[11] Sesha v. Krishna, 70 M.L.J. 36 (F.B.)

[12] Director v. Phillips, [1935] 1 K.B. 391; [1934] All E.R. Rep. 243

[13] Subhash Kumar Manwani v. State Of M.P., A.I.R. 2000 MP 109

 

 

INTRODUCTION:

The term “adultery” has been derived from the latin term adulterium and considered as a sin by all religions. It is also a ground for divorce under section 13 of the Hindu Marriage Act, 1955 and can be utilized by either spouse applying for divorce. Adultery is an act performed in private walls   and thus direct evidence of an act of adultery is extremely difficult to obtain and the entire concept is looked upon with suspicion.[1]

The law of adultery is of ancient origin.   We can trace the roots of adultery laws in India,  in verses 6[2] and 7[3] of the oldest laws of Code of Ur-Nammu[4].  The essential ingredients of Adultery as mentioned in section 497 of the IPC are:

  • Marriage of the women is an essential element of the crime charged and has to be strictly proved in a regular way.[5]
  • It is necessary to establish that the performance of sexual intercourse is with a person who is and whom he knows or has reason to believe to be the wife of another man[6].
  • Essentially, it implies that the accused must have knowledge or reason to believe that the woman was the wife of another person.[7]
  • Another important factor is that adultery must take place without the consent or connivance of that husband which is difficult to establish. This matter was discussed in the case of  Bharatlal v Top Singh[8], and  it was held that “The consent or connivance is to be proved and is not to be pleaded as complaint is not to be treated as a plaint.

CONSTITUTIONAL VALIDITY OF SECTION 497

Section 497, by necessary implication, assumes that the “wife” was a hapless victim of adultery and not either a perpetrator or an accomplice thereof. This, is to be read in consonance with Section 198 CrPC which mandates a court not to take cognizance of adultery unless the “aggrieved” husband makes a complaint.[9]

The larger question therefore becomes: If adultery is a crime where two parties are involved, what is the rationale behind not punishing the woman? Probably because the women is considered to be irrational to form such a decision or is treated similar to a property in  which case,  if destroyed by an offender, then the man to whom the property belongs to punishes such an offender. This has been challenged several times but the court has upheld the validity of the law, and thereby justifying consistently and continuously, this gender biased classifications.

In Yusuf Aziz v State[10], section 497 was considered a special provision for women on the basis of article 15(3) of the Constitution, and the Apex Court held that it does not give a license to women to commit a crime as contended by men, but rather it protects the chastity of a woman.

In case of Sowmithri Vishnu v. Union of India and Anr[11], it was observed that the wife who is involved in the act of sexual intercourse with another man is just a victim and not the offender and had no rationality of the act. The section was held to be non violative of the Constitution.

WOMEN ARE NOT FAVOURED

Interestingly,  it is easily disregarded that this same law which men repeatedly consider biased against them, also does not permit a woman to bring a case against them or the other person who destroys the marriage. How is this law favourable to women when  it allows a man to have sexual intercourse with a widow or unmarried woman, and wife’s hands are tied to bring the man to the court of law under this section? It is as if men are given a free-license to  engage in sexual intercourse with widows, or unmarried women.

In case of V. Revathi v. Union of India and Ors[12], the court held that that Section 497 of the Indian Penal Code does not permit the husband to file a case against the wife who has performed adultery nor does it permit the wife to bring a case of adultery against the husband, and thus, the law is not biased towards anyone. The perspective to be adopted for looking into an adultery matter was clarified by the verdict of this case. The law only punishes the  “outsider” in a marriage and does not envisage punishment of any of the spouses at the instance of each other.

 CONCLUSION

Considering all the aspects of adultery laws and with the backdrop of its absence in other countries, in my opinion,  India should take an example and revise the laws such that either spouse in a marriage, if involved in adultery, should be criminally responsible. The innocent spouse should be allowed not only to seek divorce from the errant spouse, but also be allowed to bring penal proceedings against them. Such modifications are necessary to attain gender equality in the truest sense.


Endnotes

[1] Kasthuri v. Ramasamy, 1979 Cri LJ 741.

[2]  The Code of Ur-Nammu (ca. 1900-1700 BC). Verse 6 of the Code states that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male.’

[3] The Code of Ur-Nammu (ca.1900-1700 BC)‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’ And this has been a recurring theme in every law that follows.’

[4]The Ur-Nammu Law Code, available at: http://realhistoryww.com/world_history/ancient/Misc/Sumer/ur_nammu_law.htm.

[5] Empress v. Pitambur Singh (1880) ILR 5 Cal 566.

[6]  Olga Thelma Gomes v. Mark Gomes AIR 1959 Cal 451.

[7] Queen v. Madhab Chunder Giri Monhut (1874) 21 Suth WR (Cr) 13.

[8]  Bharatlal vs Top Singh 1995 CriLJ 3545.

[9]  “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective, K.I. Vibhute,(2001) 6 SCC (Jour) 16.

[10] Yusuf Abdul Aziz v. State, AIR 1951 Bom 470; Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930.

[11]  Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137.

[12] V. Revathi v. Union of India and Ors (1988) 2 SCC 72.

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