Intellectual Property Rights : A Primer

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  • 1. INTELLECTUAL PROPERTY RIGHTS A PRIMER By Vishwaranjan
  • 2. INTELLECTUAL PROPERTY RIGHTS
    • MEANING – Grant of exclusive rights for a certain period over intangible assets created through human skill, intelligence, labour and effort
    • CLASSIFICATION OF IPR –
        • Copyright ©
        • Trademark TM/SM/®
        • Patent
        • Geographical Indications
        • Industrial Design
        • Trade Secrets
  • 3. COPYRIGHT
    • Literary/Dramatic/Musical/Artistic Work
    • Computer Programs/Software are literary works and covers –
    • Algorithms and Source Codes
    • Cinematograph Films including Sound Tracks
    • Recording on disc, tape, perforated roll or other device
    • Protection for the expression of an idea and not for the idea itself
    • Protection starts from the moment an original work is created
    • No formal registration is required for claiming protection
    • Fair Use provisions
  • 4. TRADE MARKS
    • A distinctive, non – descriptive sign, identifies certain goods/services produced/provided by a specific person or enterprise.
    • Trademark may be –
      • One or Combination of Words/Letters/Number
      • Drawings/Symbols/Three Dimensional Signs
    • Classification of Goods/Services offered
    • Well known Mark
    • Associated Trademarks
    • Service Marks
    • Certification Marks
  • 5. PATENTS
    • Invention of a new product or process involving an inventive step and capable of industrial application.
    • Essentials:
    • - Novelty
    • - Inventiveness (Non – Obviousness)
    • - Usefulness
    • Non – patentable inventions
  • 6. IPR PROTECTION MECHANISM IN INDIA
    • SALIENT FEATURES
    • In conformity with International standards and as amended from time to time, the Indian laws provide for both civil and criminal liability;
    • Protection available to both registered as well as unregistered IPRs through civil suits, temporary / permanent injunction, arrest, penalty, damages, compensation etc.;
    • Criminal remedy more effective than civil proceedings;
    • Signatory to International Convention & treaties, i. e.
      • Berne Convention, 1886 for protection of Literary and Artistic Works - copyright;
      • Paris Convention, 1883 for protection of patents, trademarks, designs, etc;
      • Patent Cooperation Treaty (PCT);
      • TRIPS; WPPT 1996 etc.
  • 7. GOVERNING STATUTES & TERM OF PROTECTION
        • Copyright Act, 1957 – Lifetime + 60 yrs., for Natural entity and 50 yrs. from publication for Artificial Entity; 25 years for broadcasting.
        • Patents Act, 1970 – 20 year,
        • Trademarks Act, 1999 – 10 year, renewable;
        • Designs Act, 2000 - 10 year + 5 year extension;
        • Geographical Indications of Goods (Registration and Protection) Act,1999 – 10 Years;
        • Protection of Plant Variety & farmer’s Right Act, 2000 – Maximum 18 years;
        • Semiconductor Integrated Circuits Layout Design Act, 2000, 10 year.
  • 8. COPYRIGHT AND ITS PROTECTION
    • Protects copyright owners from piracy and infringement of copyrights.
    • Criminal Remedy - Minimum jail term of seven days which can be extended up to 3 years and fine ranging from Rs. 50,000/- to Rs. 2,oo,ooo/-
    • Provided under Section 55 of the Act, Civil Remedies include
      • Injunction,
      • Damages or accounts of Profit,
      • Delivery up of infringing copies
      • Damages for conversion
    • Section 64 empowers Police to Seize infringed copyright material
  • 9. TRADE MARKS AND ITS PROTECTION
    • Trade Marks Act, 1999 awards both civil and criminal remedies
    • For registered Trade Mark, civil remedy include
      • Suits for infringement under Section 134
      • Injunction under Section 135
    • For unregistered Trade Mark, Action for Passing Off can be instituted.
    • The tort of Passing off reputation, deception and damage.
    • Similarly, suit for damages and for rendition of Accounts can also be instituted
  • 10. SNAPSHOT OF LEGAL PROVISIONS
    • PROTECTION OF PATENTS
        • Criminal liability : penalties available under Section 118
        • Contravention of Secrecy provisions relating to certain inventions in cases relating to infringement of Patents
        • Failure to comply with Section 35, is punishable with imprisonment for a term which may extend to two years or with fine or both.
    • PROTECTION OF DESIGNS :
        • Civil Remedies against infringement of Copyright in a design area
          • an injunction,
          • damages or
          • Compensation and delivery up of infringing articles.
        • No Provision for criminal proceedings against piracy of designs.
        • Unregistered design can be protected under Copyrights Act.