Monday, 8 September 2014

RECTIFICATION OF TRADEMARKS


Removal for non-use
Sec.47 – by any aggrieved person to the Registrar on grounds that:
a)      Registered without bona fide intention to use.
b)      Upto 3 months before the date of application, a continuous period of 5 years has elapsed from date on which the trade mark was entered in the register during which no bona fide use has been made. 
Rectification for other grounds
Sec.57 - by any aggrieved person to the Registrar on grounds that:
a)      Failure to observe a condition on the register
b)      Absence or omission from the register of any entry
c)       Entry made without sufficient cause
d)      Entry wrongly remaining on the register
e)      Error or defect in any entry
Procedure for application to Registrar
1.       Application in Form TM-26 or Form TM-43 for collective/certification marks.
2.       Statement in triplicate setting out the nature of the applicant’s interests, facts of case, relief he seeks.
3.       In case there are registered users, application and statements shall be accompanied with as many copies as there are registered users.
4.       Copy of the application and statement to be ordinarily transmitted within one month by the Registrar to the registered proprietor and to each registered user and any other person who has an interest in the mark.
5.       Application shall be verified.
6.       Within 2 months from the receipt by the registered proprietor of the copy of the application, or such further period not exceeding one month in the aggregate, registered user shall send a counterstatement in TM Form 6 in triplicate stating grounds on which the application is contested.
7.       Rule 50-57 apply thereafter:
a)      Evidence in support of opposition: within two months from service of counterstatement, and such further period not exceeding one month in the aggregate. Extension of time of one month may be taken in TM Form 56.
b)      Evidence in support of application: within two months from service of affidavit of opposition, and such further period not exceeding one month in the aggregate. Extension of time of one month may be taken in TM Form 56.
c)       Evidence in reply by opponent: within one month of receipt of applicant’s affidavit or within such period not exceeding one month in the aggregate. Strictly in the form of a reply. May take extension of one month in TM Form 56.
d)      No further evidence, but Registrar may give leave to either applicant or opponent to give any evidence.
e)      Copies of exhibits and affidavits to be sent to the other party.
f)       Attested translation of documents, if not in English or Hindi.
g)      Notice of hearing shall be given ordinarily within 3 months of completion of evidence. Within 14 days of receipt of notice, any party intending to appear shall notify the Registrar in TM Form 7.
h)      Hearing may be adjourned for sufficient cause.
i)        If applicant isn’t present on adjourned hearing, application may be treated as abandoned.
j)        Registrar to take on record the written arguments.
k)      Decision of Registrar to be notified to parties in writing.
8.       Registrar to not rectify or remove merely because no counter is filed unless he is satisfied that the delay is wilful.
9.       Any third party, may apply in TM Form 27 for leave to intervene, stating the nature of his interest, and Registrar may refuse or grant such leave.
Rectification by Registrar of his own motion
Registrar may  send notice to the registered proprietor and to each registered user and to any other person who has interest, stating the grounds on which he proposes to rectify, and shall also specify the time, not being less than one month from the date of notice, within which an application for hearing shall be made. If a person does not set out facts upon which he intends to meet the grounds or applies for hearing, he may be treated as not desiring to take part in the proceedings. If the Registrar decides to rectify, he shall communicate his decision in writing.  







Sunday, 7 September 2014

Food Labeling Requirements in India

Mandatory declarations - The Food Safety and Standards (Packaging and Labelling) Regulations, 2011
Labelling Requirements
1.     In English or in Hindi (Devnagri script) (any other language can be used in addition to these);

2.     Not to be false, misleading or deceptive or likely to create an erroneous impression regarding its character;

3.     Applied in such manner that it cannot be separated from the container;

4.     Clear, prominent, indelible and readily legible by the consumer;

5.     Where the container is covered by a wrapper, the wrapper shall carry the necessary information or the label on the container shall be readily legible through the outer wrapper and not obscured by it;

6.     Name of Food: include trade name or description of food contained in the package.

7.     List of Ingredients: Except for single ingredient foods, a list of ingredients shall be declared on the label in the following manner:—
a)     The list of ingredients shall contain an appropriate title, such as the term “Ingredients”;
b)     The name of Ingredients used in the product shall be listed in descending order of their composition by weight or volume, as the case may be, at the time of its manufacture;
c)     A specific name shall be used for ingredients in the list of Ingredients;
d)     Provided that for Ingredients falling in the respective classes, the following class titles may be used, namely:–
All spices and condiments and their extracts: Spices and condiments or mixed spices/ condiments as appropriate.
e)     Note:
(i)     When an ingredient itself is the product of two or more ingredients, such a compound ingredients shall be declared in the list of ingredients, and shall be accompanied by a list, in brackets, of its ingredients in descending order of weight or volume.
(ii)   Added water shall be declared in the list of ingredients except in cases where water forms part of an ingredient, such as, brine, syrup or broth, used in the compound food and so declared in the list of ingredients.
(iii)  Every package of food sold as a mixture or combination shall disclose the percentage of the ingredient used at the time of the manufacture of the food (including compound ingredients or categories of ingredients), if such ingredient–
§  is emphasised as present on the label through words or pictures or graphics; or
§  is not within the name of the food but, is essential to characterise the food and is expected to be present in the food by consumers, and if the omission of the quantitative ingredient declaration will mislead or deceive the consumer.
Provided that where the ingredient has been used as flavouring agent, the disclosure of such ingredient is not required.
8.     Nutritional Information : Nutritional Information or nutritional facts per 100 gm or 100ml or per serving of the product shall be given on the label containing the following:—
a)     energy value in kcal;
b)     the amounts of protein, carbohydrate (specify quantity of sugar) and fat in gram (g) or ml;
c)     the amount of any other nutrient for which a nutrition or health claim is made:
Provided that where a claim is made regarding the amount or type of fatty acids or the amount of cholesterol, the amount of saturated fatty acids, monounsaturated fatty acids and polyunsaturated fatty acids in gram (g) and cholesterol in milligram (mg) shall be declared, and the amount of trans fatty acid in gram (g) shall be declared in addition to the other requirement stipulated above;
d)     Wherever, numerical information on vitamins and minerals is declared, it shall be expressed in metric units;
e)     Where the nutrition declaration is made per serving, the amount in gram (g) or milliliter (ml) shall be included for reference beside the serving measure;
Provided that the food claimed to be enriched with nutrients, such as, minerals, proteins, vitamins, metals or their compounds, amino acids or enzymes shall give the quantities of such added nutrients on the label.
Provided that the nutritional information may not be necessary, in case of foods such as raw agricultural commodities, like, wheat, rice, cereals, spices, spice mixes, herbs, condiments, table salt, sugar, jaggery, or non –nutritive products, like, soluble tea, coffee, soluble coffee, coffee-chicory mixture, packaged drinking water, packaged mineral water, alcoholic beverages or fruit and vegetables, processed and pre- packaged assorted vegetables, fruits, vegetables and products that comprise of single ingredient, pickles, papad, or foods served for immediate consumption such as served in hospitals, hotels or by food services vendors or halwais, or food shipped in bulk which is not for sale in that form to consumers.
f)      The food, in which hydrogenated vegetable fats or bakery shortening is used shall declare on the label that ‘hydrogenated vegetable fats or bakery shortening used- contains trans fats;
Provided further that, a health claim of ‘trans fat free’ may be made in cases where the trans fat is less than 0.2 gm per serving of food and the claim ‘saturated fat free’ may be made in cases where the saturated fat does not exceed 0.1 gm per 100 gm or 100 ml of food.

9.     Declaration regarding Veg or non-Veg:
a)     Every package of “Non Vegetarian” food shall bear a declaration to this effect made by a symbol. The symbol shall consist of a brown colour filled circle having a diameter not less than the minimum size specified in the Table below, inside a square with brown outline having sides double the diameter of the circle.
b)     Where any article of food contains egg only as Non-Vegetarian ingredient, the manufacturer, or packer or seller may give declaration to this effect in addition to the said symbol.
c)     Every package of Vegetarian Food shall bear a declaration to this effect by a symbol. The symbol shall consist of a green colour filled circle, having a diameter not less than the minimum size specified in the Table below, inside the square with green outline having size double the diameter of the circle.
Sl.No.
Area of Principal Display Panel
Minimum size of diameters in mm
1.      
Upto 100 cms. Square.
3
2.      
Above 100 cms. square upto 500 cms square.
4
3.      
Above 500 cms square upto 2500 cms square.
6
4.      
Above 2500 cms. Square.
8

The symbol shall be prominently displayed
(i)     on the package having contrast background on principal display panel;
(ii)   just close in proximity to the name or brand name of the product;
(iii)  on the labels, containers, pamphlets, leaflets, advertisements in any media.
Shall not apply in respect of mineral water or packaged drinking water or carbonated water or alcoholic drinks, or liquid milk and milk powders.
10.  Declaration regarding food activities

a)     For food additives falling in the respective classes and appearing in lists of food additives permitted for use in foods generally, the following class titles shall be used together with the specific names or recognized international numerical identifications:
Acidity Regulator, Acids, Anticaking Agent, Antifoaming Agent, Antioxidant, Bulking Agent, Colour, Colour Retention Agent, Emulsifier, Emulsifying Salt, Firming Agent, Flour Treatment Agent, Flavour Enhancer, Foaming Agent, Gelling Agent, Glazing Agent, Humectant, Preservative, Propellant, Raising Agent, Stabilizer, Sweetener, Thickener.

b)     Addition of colors and/or flavors

Extraneous addition of colouring matter to be mentioned on the label – Where an extraneous colouring matter has been added to any article of food, there shall be displayed one of the following of food so coloured, namely:

CONTAINS PERMITTED NATURAL COLOUR(S)
OR
CONTAINS PERMITTED SYNTHETIC FOOD COLOUR(S)
OR
CONTAINS PERMITTED NATURAL AND SYNTHETIC FOOD COLOUR(S)
Provided that where such a statement is displayed along with the name or INS no of the food colour, the colour used in the product need not be mentioned in the list of ingredients.

Extraneous addition of flavouring agents to be mentioned on the label - Where an extraneous flavouring agent has been added to any article of food, there shall be written just beneath the list of ingredients on the label attached to any package of food so flavoured, a statement in capital letters as below :

CONTAINS ADDED FLAVOUR (specify type of flavouring agent as per Regulation 3.1.10(1) of
Food Safety and Standards (Food product standards and food additive) Regulation, 2011

In case both colour and flavour are used in the product, one of the following combined statements in capital letters shall be displayed, just beneath the list of ingredients on the label attached to any package of food so coloured and flavoured, namely :—

CONTAINS PERMITTED NATURAL C0LOUR(S) AND ADDED FLAVOUR(S)
OR
CONTAINS PERMITTED SYNTHETIC FOOD COLOUR(S) AND ADDED FLAVOUR(S)
OR
CONTAINS PERMITTED NATURAL AND SYNTHETIC FOOD COLOUR(S) AND ADDED FLAVOUR(S)

Provided that in case of artificial flavouring substances, the label shall declare the common name of the flavours, but in case of the natural flavouring substances or nature identical flavouring substances, the class name of flavours shall be mentioned on the label and it shall comply with the requirement of label declaration as specified above.

11.  Name and complete address of the manufacturer
a)     The name and complete address of the manufacturer and the manufacturing unit if these are located at different places and in case the manufacturer is not the packer or bottler, the name and complete address of the packing or bottling unit as the case may be shall be declared on every package of food;
b)     Where an article of food is manufactured or packed or bottled by a person or a company under the written authority of some other manufacturer or company, under his or its brand name, the label shall carry the name and complete address of the manufacturing or packing or bottling unit as the case may be, and also the name and complete address of the manufacturer or the company, for and on whose behalf it is manufactured or packed or bottled;
c)     Where an article of food is imported into India, the package of food shall also carry the name and complete address of the importer in India.
Provided further that where any food article manufactured outside India is packed or bottled in India, the package containing such food article shall also bear on the label, the name of the country of origin of the food article and the name and complete address of the importer and the premises of packing or bottling in India.

12.  Net Quantity
a)     Net quantity by weight or volume or number, as the case may be, shall be declared on every package of food; and
b)     In addition to the declaration of net quantity, a food packed in a liquid medium shall carry a declaration of the drained weight of the food.
In declaring the net quantity of the commodity contained in the package, the weight of the wrappers and packaging materials shall be excluded.

13.  Lot/Code/Batch identification

a)     A batch number or code number or lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label.
Provided that in case of packages containing bread and milk including sterilised milk, particulars under this clause shall not be required to be given on the label.

14.  Date of manufacture or packing

a)     The date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label.
Provided that the month and the year of manufacture, packing or pre-packing shall be given if the “Best Before Date” of the products is more than three months:
Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or pre-packed shall be mentioned on the label.

15.  Best Before and Use By Date

a)     The month and year in capital letters upto which the product is best for consumption, in the following manner, namely:—
“BEST BEFORE ....... MONTHS AND YEAR”
OR
“BEST BEFORE .......... MONTHS FROM PACKAGING”
OR
“BEST BEFORE ............MONTHS FROM MANUFACTURE”
(Note: — blank be filled up)
b)     In case of package or bottle containing sterilised or Ultra High Temperature treated milk, soya milk, flavoured milk, any package containing bread, dhokla, bhelpuri, pizza, doughnuts, khoa, paneer, or any uncanned package of fruits, vegetable, meat, fish or any other like commodity, the declaration be made as follows:

“BEST BEFORE ……….DATE/MONTH/YEAR”
OR
“BEST BEFORE........DAYS FROM PACKAGING”
OR
“BEST BEFORE …….. DAYS FROM MANUFACTURE”

Note: blanks be filled up, Month and year may be used in numerals, Year may be given in two digits
c)     On packages of Aspartame, instead of Best Before date, Use by date/recommended last consumption date/expiry date shall be given, which shall not be more than three years from the date of packing;
d)      In case of infant milk substitute and infant foods instead of Best Before date, Use by date/ recommended last consumption date/expiry date shall be given,
Provided further that the declaration of best before date for consumption shall not be applicable to
(i) wines and liquors
(ii) alcoholic beverages containing 10 percent or more by volume of alcohol.

16.  Country of Origin for Imported Food

a)     The country of origin of the food shall be declared on the label of food imported into India.
b)     When a food undergoes processing in a second country which changes its nature, the country in which the processing is performed shall be considered to be the country of origin for the purposes of labelling.

17.  Instructions for Use: Where applicable.
Area of the principal display panel
“Principal Display Panel” means that part of the container/package which is intended or likely to be displayed or presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity contained therein.
The area of principal Display panel shall not be less than —
a)     In the case of a rectangular container, forty percent of the product of height and width of the panel of such container having the largest area;
b)     In case of cylindrical or nearly cylindrical, round or nearly round, oval or nearly oval container, twenty percent of the product of the height and average circumference of such container; or
c)     In the case of container of any other shape, twenty percent of the total surface area of the container except where there is label, securely affixed to the container, such label shall give a surface area of not less than ten percent of the total surface area of the container.
Provided that in the case of package having a capacity of five cubic centimeters or less, the principal display panel may be card or tape affixed firmly to the package or container and bearing the required information under these regulations.

Height of numeral in the declaration
The height of any numeral required under these regulations, on the principal display panel shall not be less than—
If net quantity is declared in weight or volume
Sl.No.
Weight/Volume
Minimum height of numeral in mm


Normal case
When blown, formed moulded, or perforated on container
1.      
Upto 50g/ml
1
2
2.      
Above 50g/ml upto 200g/ml
2
4
3.      
Above 200 g/ml upto 1 kg/litre
4
6
4.      
Above 1 kg/litre
6
8

The height of letters in the declaration shall not be less than 1 mm height when blown, formed, moulded, embossed or perforated, the height of letters shall not be less than 2mm.
Provided that the width of the letter or numeral shall not be less than one-third of its height, but this proviso shall not apply in the case of numeral “I” and letters i, I& I.