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Cyber Law

With the rise of the Internet and the advent of cyber law, many new legal issues have emerged that did not exist even 10 years ago. Issues such as cyber squatting, domain name disputes, on-line privacy, e-commerce and electronic contracting are now issues that face most every business that has some contact with the internet.

We at Marks & Rights can help you navigate the ever changing world of intellectual property and cyber law. We offer services concerning trade secrets, trade dress, domain name disputes, ICANN arbitration, website privacy policies, website content review and technology policies and procedures.

The Need for Enforcing your Intellectual Property in the area of Information Technology

The incredible pace of e-commerce is sending shockwaves throughout the business and legal community. The value of intellectual property protection on the Internet is becoming clear as established companies find that they can no longer rely upon physical barriers to competition.


For technology-based companies, being the first one to market a new product or service offers tremendous competitive advantages. Traditionally, the first company to capitalize on a new idea would enjoy a lead-time advantage in setting in place manufacturing, marketing, and distribution channels. However, today, many Internet-based innovations may be reverse-engineered or copied within a matter of days. Investors and venture capitalists are starting to realize that without legal protection, a new start-up with a great idea is sending an open invitation to competitors.

This section deals with the following areas:

Copyright Protection and Internet Copyright Laws
Trademark Protection
Trade Secrets and Contractual Agreements
Patent Protection
Information Technology Act, 2000
 

Copyright Protection and Internet Copyright Laws


Important components of high-technology businesses may lend themselves to copyright protection. A copyright protects the original expression of an idea, whether literary, artistic, commercial or otherwise. It is used to protect original works of authorship that are fixed in a tangible medium of expression. Some examples of original works that may be protected with a copyright include books, sales brochures, advertising, instruction manuals, architectural and engineering drawings, pictures, photographs, paintings, graphical images, web-site designs, computer software, music, and sound recordings.

Copyright protection generally lasts for 70 years after the author's death. Under current law, copyright protection attaches to a work whether or not the copyright owner registers the work with the Indian Copyright Office. Copyright registration is inexpensive and it is advisable to register any work believed to be of value. The owner of a copyrighted work has the exclusive right to reproduce the work, prepare derivative works based upon the work, distribute copies of the work to the public, perform the work publicly, and display the work publicly.

 


Trademark Protection


Establishing a business identity on the Internet has taken on a feverish pace as e-commerce businesses struggle to build and develop consumer loyalty and brand recognition. The importance of building brand identity will become even more pivotal as the online landscape thickens. In cyberspace, adequate trademark protection for a business or its products or services is simply indispensable.

The interaction between trademarks and domain names has created a minefield of potential dangers to businesses. Without proper trademark protection, a company's reputation and goodwill can be "kidnapped" by cyber squatters. A cyber squatter is an individual or business that registers a domain name on the web with the intention of ransoming it for sale. Unlike the USA, which has an Anti- Cyber Squatting Consumer Protection Act, 1999, in India, a company with proper trademark protection is safeguarded from cyber squatters through the common law remedy of 'passing off' as well as ICANN arbitration. Obtaining a trademark on your company's name or products helps provide quick and effective recourse to your marks in the event that someone tries to hold your company or product-name hostage. A trademark not only prevents others from using an exact duplicate of your registered mark, but also prevents the use of confusingly similar marks.

Before launching a new product or service, it is important to undertake a comprehensive trademark search and obtain a clearance for your mark. Inexperienced Internet entrepreneurs have invested considerable sums of time and money promoting a new web-based business only to have their marketing efforts made useless because their mark was already in use by another company.

 

Trade Secrets and Contractual Agreements


Sometimes the nature of a new method of doing business or a new idea does not lend itself to effective patent, trademark, or copyright protection. It may still be possible to provide some protection for these ideas through contract or trade secret law.


Trade secrets are generally defined as proprietary or confidential information used in a business. Trade secrets must have commercial value or provide a competitive edge. Examples of trade secrets include customer or supplier lists, marketing plans, formulas for compositions (soft drinks), and manufacturing processes. In order to qualify for trade secret protection, the subject matter must be sufficiently secret so that the use of improper means is necessary for competitors to obtain it.


A common way for businesses to establish rights to a trade secret is by entering into agreements requiring signing parties to be bound to maintain confidentiality. Many entrepreneurs and businesses are familiar with non-disclosure or confidentiality agreements. A non-disclosure agreement can be used by high-tech businesses that enter into arrangements with suppliers, venders, sub-contractors, employees, and even customers that may require them to reveal important components of their technology or business methods. Unfortunately, a non-disclosure agreement provides no protection to a company against a competitor who is not a signatory to the agreement and who independently creates a competing product. Such protection can only secured by filing a patent application.

In India, the law relating to contracts and trade secrets has been given form in the Protection of Undisclosed Information Act, but this has not been notified yet. Hence our courts enforce the protection of trade secrets through various decisions by Indian courts based on common law.

Patent Protection


In India, no patent protection is offered to a computer program, business method or mathematical algorithm. Only copyright protection exists for a computer program.

Information Technology Act, 2000


In India, issues relating to e-commerce, electronic contracting, on-line privacy and cyber crimes are covered under the Information Technology Act, 2000.

The IT Act, 2000 is an e-commerce facilitator, providing a legal infrastructure governing the security and integrity of electronic transactions. It recognizes digital certificates, which ensures the 'encryption and privacy' as well as 'authentication and integrity' of e-commerce activity.

Sending an offer/acceptance on e-mail, becoming a registered user with a web-site, publishing/selling online with initiate e-obligations, according to the IT Act.
Retention of electronic records, their attribution, acknowledgement, dispatch (time and place) and receipt have been given due recognition in the IT Act and hence establish contractual obligations.

The IT Act has recognized the breach of confidentiality and privacy as an offence. It states that any person, who having secured access to any electronic record, book, register, correspondence, information… without the consent of the person concerned, discloses such electronic record, book, register, correspondence, information…commits an office.

The IT Act deals with both 'cyber contraventions' and 'cyber offences'. It has identified the criminal conduct vis -a -vis computer network, computer system or computer. It introduces power to prosecute those that deliberately and without authorization, misuse computer systems. The contraventions and offences have been expressed in broad terms. It has laid down the regulatory mechanisms for the Certifying Authorities, penalty provisions, investigation process, adjudication procedures and appeal provisions. The Act provides a hierarchy of regulatory authorities having their respective administrative set-ups.

 

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Marks & Rights

Marks & Rights (Attorneys and Legal Consultants)

India Office

42/2421, Thaliyath Buildings,
St. Benedict Road, Kacheripady,

Kochi, Kerala, India.Tel: +91-484-2395676, 2398676

E Mail: info@marksandrights.in

United Kingdom Office

N Ramdas , MA, MPhil, LLM, MCIArb,

Advocate (Supreme Court of India), Solicitor (England & Wales)

3 Brookfield Court, Woodside Grange Road, London N12 8TW

E-mail: nramdas@marksandrights.in

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