2. ContentIntellectual Property Rights
History of Intellectual Property Rights
Framework of TRIPS’s Agreement (WTO)
Patents + Case Studies
Trademarks + Case Studies
Industrial Designs + Case Studies
Comparative Analysis between India and China w.r.t. IPR
Recommendations
3. Definition:
• The rights given to people over the creations of their minds.
• IPR allowscreators, or owners, of patents, trademarks or copyrighted works to
benefit from their own work or investment in a creation for a certain period of
time.
RequirementofI.P.R.:
• To give statutory expression to the moral and economic rights of creators in
their creations and to the rights of the public in accessing those creations.
• To promotecreativity and the dissemination and application of its results,
and to encouragefairtrade, which would contribute to economic and social
development.
7. • Exclusiveright to the creator over the use of his/her creations
• To discourage Piracy, counterfeiting and the theft of intellectual
property assets
• Important tool for growth with business security
8. To protect the
source of
identity
Encourage
people to
generate ideas
& earn revenue
Associate pride
or status to a
person or place
9.
10. • TheAgreement onTrade related Aspects of Intellectual Property Rights of the WTO is
commonly known as the TRIPS Agreement
• Negotiated as part of the eighth round of multilateral trade negotiations in the period
1986-94 underGeneral Agreement on Tariffs and Trade (GATT) commonly referred to as
the Uruguay Round
• Introduction of Intellectual Property(IPRs)
• Most comprehensive international agreement on intellectual property
11. IPRs
under
TRIPS
Copyright &
Related rights
Patents including
the protection of
new varieties of
plants
Trademarks
Geographical
Indications
Industrial
Designs
Layout-designs
Undisclosed
Information
(trade secrets &
test data)
12. • Theprecursor to the WTO was the General Agreement onTariffs and Trade(GATT)
operation which resultedin lowering oftariffs in general international trade.
• Otherdomestic policies ofnations came into focus of the trading nations.
• Increasingcompetition in manufactured exports from Newly Industrializing Countries
(NICs)of Asia.
• Requirement of clarification and elaboration of newrules and disciplines in order to reduce
distortions and impediments to international trade.
• IPRbecame important in international trade
• WTO’s TRIPS Agreement could help narrowthe gaps, protect IPRsand bring them under
common international rules.
13. • Application of principles of the trading system and otherinternational intellectual
property
• Adequately enforcement of rights in their ownterritories by the membercountries
• Settlement of trade disputes
• Special transitional arrangements during the period when the newsystem is being
introduced.
• Establish minimum levels of protection
15. • Trade MarksAct, 1999
• The Patents Act’1970 ammended in 1999
• Protection of Plant Varieties and
Farmers’ Right Act No. 53 of 2001
• The Designs Act, 2000
16.
17. Definition:
Patent is anintellectualproperty right relating to inventions and is the grant
of exclusive right, for limited period, provided by the Government to the
patentee, in exchange of full disclosure of his invention, for excluding others,
from making, using, selling, importing the patented product or process
producing that product for those purposes.
18. • Ensures property rights for the invention for which patent has been granted, which
may beextremely valuable to an individual ora Company
• Patent obtained in one country is notenforceable in other country
• Thepatent rights can beenforced only after securing the patent
• Patent is granted for both a product and a process.
• Who CanApply: Application may bemade, either alone or jointly with another, by
the inventor, assignee, legal representative ofdeceased inventor orassignee
19. For any inventions, whether
products or processes
Article
27
Limited exceptions to exclusive rights
provided do not conflict with normal
exploitationofthe patent
Article
30
Revocation/forfeiture is subject
to judicial review
Article
32
Exclusiveright to owners
againstthird party.
Article
28
The term of protection shall be
at least 20 years from the date
of application
Article
33
Inventions shall be disclosed in a
clear & complete manner
Article
29
Establishmentof reversal off the burden of
proof in civil proceedings
Article
34
21. • India is a signatory country to the ParisConvention and the WTO
ParisConvention: Accordingto this treaty, juristic and natural persons who areeither
national ofordomiciled in a state party tothe Convention shall, as regardsthe protection
of industrial property, enjoy in all the othercountries of the Union, the advantages that
their respective laws grant to nationals.
• Foreign applicants haveequal rights before the patent law of India and there is no
discrimination based on nationality
• Life span of a patent is 20yearsstarting from the date of the filing of the patent
application. Applications underthe Patent Cooperation Treaty (PCT) 20years shall be
counted from the international (PCT) application filing date.
23. PATENTABLE INVENTIONS
Newanduseful art, process,
methodor mannerof manufacture
Machines& Apparatus
Substanceproducedby
manufacture
Anynewand usefulimprovement
of anyof them
Allegedinvention
NON-PATENTABLE INVENTIONS
Claims contraryto well-establishednaturallaws
Discovery of a scientific principle
of anabstract theory
Intendedusecontraryto lawor moralityor
injuriousto publichealth
Substanceobtainedbya mereadmixtureresulting
inaggregation
Mere arrangementor rearrangementor
duplicationof knowndevices
Method ofagricultureor horticulture
Inventionsrelatingto atomicenergy
24. • Apple has filed a patent infringement lawsuit against Samsung for the Galaxy line of
products.
• Apple claims that Samsung has infringed ontheir rights with the Galaxy S phones
and Tab assigned to Apple by US PTO.
• Apple is concernedwith the rounded corners on the icons
25. • Novartis applied for imatinib in U.S.A.In 1994
• Started marketing its anti-cancer drug as Glivec
• Norvartis-could not apply for patent in India- India didn’t not recognize‘ProductPatent
Protection’ in pharmaceuticals until 1995
• India- Patents are given only for new substancesand not for known substances,thus
Glivec was again not patentable in India
• Novartis- Appllied newpatent- beta crystalline
• India- Application rejected under re-introductionofProductPatentsSection 3(d),2005
26.
27. Definition :
• A trademark is a distinctive sign that identifies certain goods or services produced or
provided by an individual ora company.
• Its origin dates back to ancienttimes when craftsmenreproduced their signatures, or
“marks”, on their artistic works or products of a functional or practical nature.
Significance of Trademarks:
• Trademark protection ensuresthat the owners ofmarks have theexclusive right to
use them to identify goods or services
• Trademarks promote initiative and enterpriseworldwide by rewarding their owners
with recognition and financial profit.
28. Functions of
Trademarks
Identifies the goods /
or services andits
origin
Guaranteesits
unchanged
quality
Advertises the
goods/services
Creates an
image for the
goods/ services
29. Terms of
protection
Article
18 Requirement of
use
Article
19
Other requirements
Article
20
Licensing and
assignment
Article
21
Protectable
subject matter
Article
15 Rights
conferred
Article
16
Exceptions
Article
17
34. • Theselected mark should becapable ofbeing representedgraphically (that is in
the paperform).
• It should be capable ofdistinguishing the goods or services of one undertaking
from those ofothers.
• It should beused orproposed to beused mark in relation to goods or services
• Non-user of a registered trademark for a continuous period of 5 yearsis a ground
for cancellation of registration
35. • Gati Ltd.: Specialized in point to point distribution of
cargo services
• Gati Dance: Non-charitable trust dedicated to
supporting, facilitation and promoting artists in the field
of dance.
• Gati Ltd.- Feb.2014,submited caseaccusing usage of the term ‘GATI’ by
Gati Dance as its trade name to deceivecustomers and take unfair
advantage ofthe goodwill and reputation of Gati Ltd.
• Court noted that GATI as common Hindi/ Sanskritword & thus cannot
beclaimed to havebeencoinedor invented by Gati Ltd.
• Services provided by the plaintiff and defendant are entirelydifferent
with no similarity in eventhe trade channels.
• Courtdeclined to issue an interim injunction in favour of the plaintiff in
this matter.
36.
37. Meaning & Definition:
•An intellectualproperty right that protects the visualdesign of objects that
are not purely utilitarian.
•An industrialdesign consists of the creation of a shape, configuration or
composition of pattern or color, or combination of pattern and color in three
dimensional form containing aesthetic value.
•An industrialdesign canbe a two- or three-dimensional pattern used to
produce a product, industrial commodity or handicraft.
38. Protection to newor original
designs
Article
25.1
Exclusiverights can be exercised against
acts for commercial purposes, including
importation
Article
26.1
Minimum Term of Protection
is ten years
Article
26.2
Protection for textile
designs through industrial
design or copyright law
Article
25.2
39. Designshould be new ororiginal
Design should relate tofeatures of shape,etc.
Any mode or principle of construction or operation, which is in substance a mere mechanical
device, would not be a registrable design
Notcomprise or contain scandalous orobscene matter
Significantly distinguishable
Design should not include any trademark
Design should be applied or applicable to any article by any industrial process
Features of the designs in the finished article should appeal to and are judged solely by the eye
41. The design as applied to an article should be integralwith the
articleitself.
The total termof a registered design is 15 years
First to file rule is applicable for registrability of design.
42. • Bratz dolls launched in 2001 and 40% of Barbie’s turf in 5 years.
• MGA - April 2005, filed a lawsuit against Mattel, claiming line of “My Scene” Barbies copied
the big-headed and slim-bodied physique of Bratz dolls.
• Mattel- accusedBratz designer Carter Bryant designing the doll while onMattel’s payroll
under a contract that stipulated that his designs werethe property of Mattel.
• July 2008, a jury ruled in favor of Mattel, forcing MGA to pay Mattel $100 million and to
removeBratz dolls from shelves
• MGA- April 3013, filed a case against Mattel proving to steal trade secrets.
43. Comparison of current scenario
between
INDIA and CHINA
w.r.t. Intellectual Property
Rights
44. • Brazil, Russia, India and China (BRIC)infamous for their weak IP protection
• TheUnited States highest overall scoreat 23.73, with the United Kingdom coming in
second at 22.40.
• Among BRIC countries:
Brazil- 9.57
Russia- 11.17
India- 6.24
China- 9.13
Source:Chartingthe Courseindex
47. INDIA
• Indian policy continued to
breach internationalstandards
of the protection of innovation
and patent rights, revoking
patents generally accepted
around the world and
announcing that other patented
products are being considered
for compulsory licences.
CHINA
China’s third amendment of its
Patent Law in 2008
“The needs of development of
Chinaherself,” which require
“the promotion of independent
innovation and the
establishment of an innovation-
oriented country.”
48. • Weak punishment: Punishment prescribed for infringement maximum of
Rs.200,000 and imprisonment upto 3years
• Hampering promotion and growth of innovations
• Low convictions rate
• Lack ofawareness about IP protection and lack a proactive approach
• India has taken a pro-genericapproach by rejecting renowned patents in recent
cases.
