Law relating to intellectual property


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Law relating to intellectual property

  1. 1. Introduction to IntellectualProperty for SLIM PGDipMaxwell Ranasinghe
  2. 2. • Intellectual property is an intangible property• It has its unique features• It is created by human intellect• It cover ideas, inventions, literary creations,unique names, models, logos, industrialprocesses, computer software programs etc.• It can have a monetary value• It can be owned, transferred, sold or licensedto another person to use• It is governed in SL by Intellectual PropertyAct No 36 of 2003
  3. 3.  IPA covers three main important areasas to intellectual property◦ Patent Rights◦ Copy Rights◦ Trade and Service Marks◦ We will briefly identify Patent Rights andCopy Rights but will discuss little detail onTrade Marks and Service Marks as it isdirectly involves with branding a majorcomponent of Marketing.
  4. 4. • Patent Rights• Patent rights are given for products orprocesses of technological nature• A technological invention is patentable if it is–-new or- involves and inventive step and- is industrially applicablee.g.. New machine to pluck tea leaves,coconuts, new engine developed to run onwaste oil, new drug to cure aids, new processto improve extraction of cinnamon oil, newprocess of eliminating mosquitoes
  5. 5. • Rational underlying patents–To encourage inventors to publicize theirinventions upon a guarantee thatinventors are given an exclusive right touse it for a specific period.–A social contract where state grants amonopoly for the inventor to profit from hisor her invention in return for making theproduct available for general use and forenabling further research anddevelopment
  6. 6.  Validity of patents◦ A patent is valid for 20 years after thefiling date of application at the PatentsOffice◦ After two years from the date of grant, itmust be renewed each year until theexpiration of the term of patent
  7. 7.  Rights of the owner of patents◦ Exclusive right toExploit the patented inventionsAssign the patent to another oneLicense the patent to another one touse( Law relating to Patents is extensiveand one has to a study it in detail to geta good knowledge about it)
  8. 8. Copy Rights The Law governing copyrights arenow included in the IntellectualProperty Act Works of authors of Sri Lanka, worksfirst published in Sri Lanka and allworks (even foreign) which by virtue oftreaties entered into by SL are to beprotected. Even SL folklore are protected underthe Act
  9. 9.  Duration of copy rights◦ Economic rights Author’s lifetime plus 50 years after his death Joint work - during the life time of thesurviving author plus 50 years after his or herdeath Work published anonymous or pseudonym50 years from the date of publication Cinema, radio, TV 50 years from the date ofbroadcasting or public presentation Photographic works – 25 years
  10. 10. ◦ Moral rights Moral rights can be exercised byauthor and by heirs after theauthors death for 50 years Moral rights can be exercised evenif the author or heirs do not haveeconomic rights ( E.g.. Even aftertransferring of economic rights)
  11. 11.  Enforcement of copyrights◦ An injunction could be obtained from court( Commercial High Court) for prohibitingthe infringement and also can claimdamages◦ Infringement of copyright is a crimepunishable by a Magistrate◦ ( Law relating to copy rights are extensiveand one has to study in detail to have agood knowledge)
  12. 12. • Trade Marks and ServiceMarksThese are governed by Intellectual Property ActDefinitions of Trade Marks and Service MarksA trademark is any visible sign serving todistinguish the goods of one enterprise fromthose of others enterprises.
  13. 13. A service Mark is any visible sign todistinguish the services of oneenterprise from those otherenterprisesTrade marks are attached to productsand Service marks are attached toservices.Other than that there is no practicaldifference in both. Same principles ofLaw are applicable for both.
  14. 14. • Functions of a trade mark– It serves to distinguish goods or services ofdifferent enterprises .– It indicates the source and quality of thegoods and services to the consumer– It enables the owners to individualize themark and promote the product to consumers– It allows the owner to improve the quality ofthe product bearing the mark to have anadvantage over the competitive products.– Marks significantly assists consumer to maketheir choices
  15. 15. • Exclusive right to a mark• Upon proper registration one will get anexclusive right to use the mark• The law does not make registrationcompulsory• Even a non registered mark may seeklegal redress under other laws such asunfair competition. Under Common law“Passing off”( pretence of one personthat his goods are those of another).• But it is always better to be registeredunder IPA to get better protection andrights
  16. 16. • What constitutes a mark { sec 102(3)}• Any visible sign capable of distinguishing goodsor services of different enterprise can generallyconstitute a lawful mark. A mark may consists of– Arbitrary or fanciful designations– Names– Geographical names– Slogans– Devices– Letters– Numbers– Labels– Combination or arrangements of colours and shapesof goods or containers etc.
  17. 17. • Admissibility of a mark• A mark is admissible if it is notinadmissible under section 103 and104–103 under objective grounds• Shapes and forms imposed by inherent naturee.g.. Head as the trade mark for a cap•• Sec 103 (1) b
  18. 18. • Generic signs or indications– If a mark resembles a sign that has become in thecurrent language or established trade in SL , acustomary designation of the good. Then it cannot begiven as an exclusive trade mark.– E.g.. All soft drinks sold by roadside venders onpavement are generally called “Saruwath”. One maynot be able to register “Saruwath” as his or her trademark under this provision, as it is the customarydesignation of the goods.– Word does not become non descriptive by beingmisspelt. E.g.. Electrix for electical apparatus– However, descriptive word with other elementsassociation of the product may be given . E.g..Mobitel , Celltel, Dialog etc.
  19. 19.  Marks incapable of distinguishinggoods or servicesA mark should always have adistinctive character. If not it cannotserve as a mode of distinguishing thegoods or services of differententerprises. E.g.. Invented word willcreate a distinctive character.
  20. 20.  Immoral, scandalous and antisocialmarks◦ Scandalous design◦ -contrary to morality◦ Offend racial or religious susceptibilities◦ e.g.. Ghandi Samba, a cross or aBuddha’s image, a sign or imageconsidered by the general society asvulgar may not be registered as of thisprovision.◦ Fcuk him Fcuk her ( brand name of
  21. 21.  Misleading marks◦ Mark will not be registered if it is likely tomislead the public or the trade as to the Nature Source Manufacturing process Characteristics Suitability for the purpose of goods/servicesconcerned
  22. 22. • Names of individuals and enterprisesnames can be registered subject tocertain rules but it should be of actualpersons living or an existingorganisation. ( a mark which doe notrepresent in a special or particularmanner the name of an individual orenterprise shall not be registered. )•
  23. 23. • Geographical names and surnamesGenerally( according to its ordinarysignificance =normal understanding) ageographical name or surname is notallowed to be registered as a trade mark.However, if it can be proved that name orplace is of significance for the tradename to distinguish the product it shouldbe possible to register.• E.g.. Wickremarachchi Ayurveda Drugs• Jinadasage Talaguli
  24. 24. • If a name to be registered as a trade mark itshould be special and particular mannerwhere it could serve as a mark ofdistinction. Therefore, simply printed, typewritten or written in ordinary hand may notbe treated as special or particular manner.Surnames alone cannot be registeredgenerally, therefore, name here denotes thewhole name or at least two names together.• E.g.. Maxwell Ranasinghe
  25. 25.  Admissibility of Mark under section104This section deals with marks inadmissibledue to 3rd party rights1. A Mark which is likely to misleadingresemblance to other lawfully filed orregistered marks ( sec 104 (1))◦ ( likely – not necessarily involve anintention to deceive. Merely causingconfusion would be sufficient)
  26. 26. • 2. A mark which resembles in a sucha way that is likely to mislead thepublic of an unregistered mark used inSL by 3rd party in the past and theapplicant could not be aware of it.• Duration of registered mark• Registration is valid for 10 years. Onthe expiration of the period, it could berenewed for further periods of 10years
  27. 27. Registration Trade marks, Patents, Industrial designs(other than copy rights) have to beregistered as per the IPA Once the application is filed, the trade Mark, Patent or Industrial Design will begazetted. Objections can be made within 3months to Director General IntellectualProperty If no objections are made it will beregistered. If objections are not made but found later bythe original owner still he can go to court for
  28. 28. Read Chapter XXXII on Unfaircompetition 160 (1) (a) IPA Any act or practice carried orengagedin, in the course of industrial orcommercial activities, that iscontrary to honest practice shallconstitute an act of unfair trade
  29. 29.  Any act or practice carried or engagedin, in the course of industrial orcommercial activities, that causes, oris likely to cause, confusion withrespect to another’s enterprise or itsactivities, in particular, the products orservices offered by such enterprise,shall constitute an act of unfaircompetition.( there are 9 subsections under this Sec 160 as to unfair competitionand undisclosed information and u requested read the know moreabout it)