Intellectual Property rights Law in India By Anujain

By Anuj Kr. Jain LL.B. 3yr Final Yr.

Intellectual property rights are legal rights, which result from intellectual activity in the industrial, scientific, literary and artistic fields. These rights give statutory expression to the moral and economic rights of creators in their creations. Intellectual property rights safeguard creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions.

Article 2(viii) of the Convention Establishing the World Intellectual Property Organization (WIPO) provides that "intellectual property shall include rights relating to:

The birth of these rights commenced with Paris Convention (1883) for the Protection of Industrial Property. This convention was followed by the Berne Convention (1886) for the Protection of Literary and Artistic Works. The secretariats established by Paris and Berne Conventions merged in 1893 with their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization or WIPO. WIPO is a specialized agency of the UN, with a mandate to administer IP matters recognized by the UN Member States.

These rights instituted and developed by British based on their own system. In 1856, Protection of Inventions act was passed based on THE BRITISH PATENT LAW OF 1852.

In 1940 Trade Mark Act was enacted and first Trade Marks Registry was established.

After independence,

The Copyright Act 1957, Patent Act 1970 was passed. In 1994, after becoming a signatory in the TRIPS (Trade- Related Aspects of Intellectual Property Rights) agreement initiated by the World Trade Organization was signed in Marrakesh, Morocco, on 15 th April 1994.

In 1958, The Trade and Merchandise Mark Act 1958 was passed which is now repealed by Trade Mark Act 1999.

In 1999, as a member of the WTO, the parliament of India enacted the Geographical Indications of Goods (Registration & Protection) Act,1999 which has come into force with effect from 15th September 2003.

In 2000, Design act was passed.

Patents and trademarks are granted in India by the Patent & Trade Mark offices in the metropolitan citied of Delhi, Mumbai, Chennai and Kolkata, along with there is a registry only for Trade Marks at Ahmedabad, all are come under the jurisdiction of Office of the Controller General of Patents, Designs, Trademarks and GI. Which come under Ministry of Commerce and Industry, Govt of India.

 Applications can be filed through post or in person at these offices and now also online at www.ipindia.nic.in. Now these offices has revamped the whole IP system and a whole new organization called IP India or Intellectual Property India has been established.

Application for getting Copyrights can be filed through post or in person and also by online at www.copyright.gov.in.

Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such. That why its come under jurisdiction of Human Resources.  

There are certain rules for every Intellectual Property Rights which amended from time to time as to meet global economy. 

There are two main categories of Intellectual Property Rights

1. Industrial property

2. Copyright

 

1. Industrial property: patents, trademarks, industrial designs and geographic indications.

(i) Patent: Patent is an exclusive right granted for an invention, that involves a unique process or which is a product that provides new way of making something or doing something, or a unique solution to a problem. Patenting a product or a process or something unique that leads to an invention would provide protection for that particular invention to the owner.

Under Patent law, the inventor is given the exclusive right to prevent others from making, using and selling a patented product for a fixed period of time in return to the inventors disclosing the details of the invention to the public. The limited period of the patent gives a scope for faster and better commercialization of the patented product and the greater scope of making it available to the public. The right of a patent does not by itself give the authority or right to the inventor or creator himself to give rights of his invention or make copies or use or sell the invention etc. A patented product also restricts and avoids the duplication of the product rewarding the inventors or creators investment of time, money and effort associated with research and labour.

Basically, there are three kinds of patents

a. Utility Patents

b. Plant Patents

c. Design Patents

a. Utility Patents- These are awarded or granted to those creators or inventors or discoverers who has created or invented or discovered any new process, machine, article of manufacture, compositions of matter or any new useful improvement of a previous invention or discovery or creation. This patent protects the way a process or machine or article etc is used and the way it works. A utility patent needs to be described in written, regarding the format, style etc. Obtaining this patent is expensive than the design patents. Finally, a Utility Patent protects the functional aspects of the invention. It is always suggested that a design patent be taken before taking a utility patent.

b. Plant Patents- These  are awarded or granted to those creators or inventors who by asexual reproduction created or invented or discovered a new variety of plants. This patent provides protection to the rights of an individual who is the first to invent or discover the distinctive qualities of a plant reproducing it asexually (reproducing by other means, without using seed).

c. Design Patents- These are awarded or granted to those creators or inventors who have created or invented a new, original, ornamental design for an article of manufacture. This patent protects the decorative and ornamental aspects of the creation or invention of a creator or inventor. Design patents are awarded for a unique creation or invention that is having a unique look or appearance.

In all the cases the patent can be applied on the basis of the following:

a. The complexity of the technology

b. The extent to which the technical information is already published or otherwise well known and finally

c. Improvements to existing inventions or creations are also patented provided that they lead to unexpected results.

The safest course of protecting your invention or creation is to disclose the invention or creation, taking appropriate protection before any public disclosures are made. A patent gives inventor or creator the right to prevent others from making duplicates or copying or using the original works, protecting the innovation of the inventor or creator from infringement.

The above subject matter is not protected under the patents:

Abstract ideas

Natural phenomena or laws of nature

A creation or an invention or a discovery must be novel, useful and non-obvious and must be in a tangible form rather than it being in the form of an idea. Failure to protect a creation or an invention from infringement before publication can make severe impact on the creator or inventors works. Therefore the creator or inventor should take a good patent before disclosing it to the public thus preventing the infringement of the creation or invention.

(ii) Trademark: Trademark is a unique or distinctive signs or words or logos, which identifies certain goods as those produced by a specific person or company or which distinguishes one’s products from the others. A service mark is a symbol that is used in offering or selling services. The laws that are applicable to the service marks are same as Trademarks.

Therefore, Trademark can be defined as, a unique or distinctive sign or word or logo or service, which identifies certain goods or services as those produced by a specific person or company or enterprise or which distinguishes one’s products or services from the others.

Trademark protects not just a sign or logo or word but it symbolizes the goods or services that are offered or produced by the Trademark owner as distinct from the goods or services produced or offered by others.

For Example: MEWAR is a trademark, with a good name and value in the public. Now if a person makes use of this trademark or tries to confuse the public with an identical trademark or deceptively similar to that of the original trademark MEWAR and is providing same services, then he is liable for the infringement of the Trademark and is liable for infringement.

After choosing a Trademark, search for the availability of the trademark and then proceed with the Trademark right. This care is needed to be taken otherwise you will not know if any other party owns the same trademark or a much similar one with superior rights, might force you to stop using the mark or sign that you have chosen as a Trademark.

The Trademarks cannot be registered if:

a. It consists of immoral or deceptive or confusing;

b. It resembles a mark registered or used by another in case of producing or providing goods or services of a registered trademark in order to deceive or confuse and making profits;

c. It contains that which is already in use say a word, a musical note, a sign, etc.

(iii)Industrial Design: Industrial Design is a decoration or ornamental aspect of an article with respect to its shape, pattern, lines, color, surface etc. It protects the aesthetic value or visual appearance of a product or ornamentation or design, which may be applied to a product. The Industrial Design protects the outward look of the product but not the function or operation of the product. Industrial Design, gives the owner exclusive right to manufacture and sell the product. Any Industrial Design must be original i.e. it can no way be similar to any of the existing registered Industrial Design.

The protection of the product through the Industrial Design is required for your product when the appearance or the design of your product is used to promote the sale of the product. Like other forms of the Intellectual Property, the registration of an Industrial design can prevent others from using or duplicating, using for the purpose of trade and business, selling, renting or offering to sell or rent your Industrial Design.

For Example: If anyone designs a similar product with the same functions but with different design then there is no violation of the Industrial Design right. Items like the board games designs or layout of the board, shape of the containers or pattern of design on the container, or the consumer products, etc. you normally protect by the way of Industrial Designs.

(iv)Geographical Indication: Geographical Indications of Goods are defined as that aspect of industrial property which refer to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country. 

Geographical Indications(GI) is an indication that identifies a good or a product originating from a territory where a given quality, reputation or other characteristics of the good or product is due to its geographical origin. A geographical indication is firstly an indication that originates from a definite geographical territory. It is mainly used to identify the agricultural, natural or manufactured products or goods. The indication should possess a special quality or reputation or other characteristics.

The registration of a geographic indication provides legal protection to the good or product manufactured or produced in a country. This prevents unauthorized use of the registered geographical indication by a third party or others thereby encourages exports of the country and promotes economic prosperity of the producers and manufacturers of the products and goods in a geographical territory.

The registration of the Geographical Indication is not compulsory but registering geographical indication of a good or a product would give better legal protection and also gives the right to take action for infringement by the producer or a manufacturer of the good or product. Protection of a geographical indication in its country of origin is obtained in accordance with the nationally applicable laws and regulations.

For example: A geographical indication of a country depends on the good or product manufactured or produced possessing certain good quality due to its geographic origin like the Triupati Lado, Basmati Rice, Darjeeling Tea, Neem, Turmeric etc in India. India owns the right over the Basmati Rice due to its geographical origin there it cannot be registered as a geographical indication by any third party or others.

2. Copyright- It include creative works like novels, poems, plays, films, musical works, computer software and artistic works.

Copyright:  It is to protect and promote the interests of the creators or owners of material (artistic, literary, dramatic, music recordings, film recordings, broadcast etc.) from making copies, publicizing, broadcasting and use as he wants. It is the lawful right of a person to copy his works. It applies to all the original works.

 The word 'work’, include literary, dramatic, musical and artistic works. The above mentioned works cover a wide range of creations with expression irrespective of the idea behind it. Copyright is legal term describing the rights given to creators or owners for their literary and artistic works.

Copyright, basically protects the works of a person regardless of the medium in which they exist and this includes the Internet. Copyright gives rights to the creator or owner of certain unique material to control the various ways and means, in which the unique material may be exploited like,

a. Make copies of the copyrighted work

b. Distribute copies of the work (including rental)

c. Create derivative works of the copyrighted work

d. Publicize the works

Anyone who does or authorizes to do any of the things mentioned above without the permission of the creator or owner may be called as infringer and his works are termed as infringement of the copyright. You should also note that copyright does not protect ideas. It protects the way the idea is expressed but not the idea itself.

Copyright is owned by the author of the work only, unless the ‘work made for hire’ i.e. if a person has done or created a work or unique material as an employee under an employer where both the employee and the employer have equal rights on the work.

There is no Official Registration like thing for copyright. It is an unregistered right that comes into effect immediately, as soon as something that is unique is created and published in the public domain. The Copyright broadly covers –

1. protection from copying original literary works;

2. protection of original dramatic works

3. protection of musical and artistic works

4. protection of sound recordings and video recordings

5. Protection of all the intangible works that are the unique expressions of an idea protected under the copyright laws.

For Example: Computer Programs is intangible property protected by the copyright laws on the basis of Artistic and Literary works. However the extent of protection is uncertain. Facts and Data are not copyrightable but their selection or arrangement can create a copyrightable compilation. Text files, Graphics, Sound files, Video files, and Data etc. do come under the wide range of copyrightable works on the World Wide Web.