The Intellectual Property Law Sanjeev Kumar chaswal Advocate IP & Attorney High Court of Delhi
If you don’t see a problem with this question, you need this class!
The Property can be classifiedbroadly in to two categories:- Tangible Property Intangible Property
Tangible Property This includes any equipment, furniture,fixtures, tools, signs, machinery orsupplies used in a business or for acommercial purpose, otherthan inventory, real estate, vehicles.Furnishings and appliances
Intangible PropertyIntangible property consists of humanknowledge and ideas and a personor corporation can have ownership of andcan transfer ownership of to anotherperson or corporation, but has no physicalsubstance. It generally refers to statutorycreations such as Copyright, Trademarks,Designs, or Patents
Types of Intellectual PropertyCopyrightsTrademarksPatentsIndustrial Design RightsTrade SecretsGeographical IndicationsSemiconductor Integrated CircuitsLayoutPlant variety rights
INTELLECTUAL PROPERTYCOPYRIGHT - relate to literaryor creative worksTRADEMARKS - relate to productnames or symbolsPATENTS - relate to inventions.
CD PLAYER Music played on the CD player isIndustrial protected bydesign copyrightprotection for3D shape VariousBrand technical partsname- & mechanismsregistered are subjectunder mater oftrademark protection under Patents
TRADE MARKS ™®A trademark is a symbol, which isgenerally used to identify a particularproduct, which indicates its source. Atrademark can be a combination ofwords, phrases, symbols, logos, designs,images or devices, used by an individual,legal entity or business organization todistinguish their products from that ofothers.
Service TrademarkWhere a trademark is used inconnection with services, it may becalled “service mark”.Service marks are used by hotels,restaurants, airlines, tourist agencies,laundries and cleaners etc.
Registration contents in Trade Marks Name Logotype Symbol Slogan Shape Color
Not allowed / Not valid• Violation of public order and morale• Copy of earlier registration (bad faith)• Withdrawal from register• Not in use ( 7 years)• Evolution into generic name Generic terms: CHAIR to sell chairs• Formica, cellophane, compact disc
Not allowed / Not validDescriptive terms: SWEET to sell chocolates Deceptive terms: “ORWOOLA” or “Purewhool” for 100% Synthetic materials. Do not use flags, armorial bearings, officialhallmarks, emblems without a legalauthorizationDisparages or falsely suggests a connectionwith persons (living or dead), institutions,beliefs, or national symbols.Depicts the flag or coat of arms or otherinsignia of India, or of any state ormunicipality, or of any foreign nation, or anysimulation thereof
Patents:Patents are rights related to new inventions. This right is conferred on persons who invent any new machine, process, article of manufacture or composition of matter, biological discoveries, etc. In order to grant a patent, the invention should fit into the following criteria, which may differ from country to country. In general, the invention must be new, inventive and should be useful or can be applied in industries.
Patents Contd…..The person who receives a Patent for his invention has an exclusive right to control others from making, using, selling, or distributing the patented invention without permission. Generally, the time limit or life span of a patent is twenty years starting from the date of the filing of the patent application.
TYPES OF PATENTS GRANTED TO INVENTORSPatent Granted in three categories:Utility Patents - new, useful, or improvedprocesses, machines, apparatuses, articles ofmanufacture, or compositions of matterDesign Patents - new, original, andornamental designs for an article ofmanufacturePlant Patents - inventions, discoveries, orasexually reproduced distinct and newvarieties of plants; including cultivatedsports, mutants, hybrids, newly foundseedlings, and living organisms
Industrial Design RightsThe design can be either two-dimensional(based on pattern, colors and lines) orthree-dimensional (as per shape andsurface). An industrial design right is conferredafter considering factors like, novelty,originality and visual appeal.The person who has an industrial designright has the exclusive right to make orsell any objects in which the design isapplicable.
Industrial Design RightsAesthetic aspects or outwardappearance that is applied to a product2 D like patterns, lines, composition,colour; or3 D like shape; or combination of both2D & 3D
Industrial Design RightsThe right is conferred for a period of5 year initially and further 5 yearson renewal.The creation of a new design thatcan be used to give shape to athree-dimensional mass-producedarticle may possibly be registeredunder the Designs Act.
DESIGN Vs. COPYRIGHT DESIGN COPYRIGHTComplete monopoly Only protects against copyingNeed to register to Subsists inherently claim protection Has to be NOVEL No requirement for noveltyMaximum 15 years Life of author + 60 years Only in respect of Is not goods specificgoods registered for
DESIGN AS A TRADEMARKSKB v. HLLThe “S” shapeBoth design rights & trademark rightswere claimed on itDesign registration was cancelled duringproceedings
Safeguards for DesignApply for registration when design isfinal & BEFORE IT IS PUT INTO THEMARKETVery important to keep the designCONFIDENTIAL before filing of thedesign application and if need toshare it, enter into agreements
Geographical IndicationCertain geographical names haveacquired a lot of importance in thecommercial market, particularly withregard to the goods uniquelyassociated with such names. Anyagricultural goods, natural goods ormanufactured goods, or any goods ofhandicraft or goods of industryincluding food stuff, generally, bearsthe geographical indications to attractthe attention of the consumers.
Geographical IndicationTraders attach considerable value tothe public recognizing the source,particularly the place of origin of thegoods, especially when the name ofthat place is taken as a synonymnecessarily after long and continuoususe, for some special qualityassociated with the product originatingfrom that place. Example are:Darjeeling tea, Kanjeevaram silk, etc,
Registration of GI markU.S. Registration No. 2,685,923For “Tea”“The certification mark, as used byauthorized persons, certifies that the teacontains at least one hundred percent(100%) tea originating in the Darjeelingregion of India and that the blend meetsother specifications established by thecertifier.”
Registration of GI markApplication Serial No. 76-229673For (a variety of products madewholly or substantially ofEgyptian cotton)“The certification mark, intendedto be used by authorizedpersons, is intended to certifythat the products identified abovecontain 100% EgyptianBarbadense cotton.”
Who Can Register? Any association of persons orproducers or any organization orauthority established by orunder law representing theinterest of producers of theconcerned goods
Plant VarietiesThe demand for extending intellectualproperty protection to agriculture indeveloping countries has met withcounterclaims for granting farmersrights. Developing countries arecurrently attempting to fulfill thesedemands by evolving new IPR regimesthat simultaneously protect the rightsof breeders and farmers.
Plant VarietiesThe answers to these questions haveimportant implications for the future ofagricultural growth in developingcountries. India is one of the firstcountries in the world to have passed alegislation granting rights to breedersand farmers under the Protection ofPlant Varieties and Farmers í RightsAct, 2001
Coverage of varieties New Varieties (genera and species which can be registered will be notified subsequently)- Extant varieties- Farmers varieties - Breeders can exercise their rights over anyvariety that is essentially derived from theprotected variety. Provided that theauthorisation by the breeder of the initial varietyto the breeder is on mutually agreed uponterms and conditions.
The Central Government has notified the following crops with their genera eligible for registration of varieties. S.N Botanical Name Hindi Name Common Nameo.1. Oryza sativa L. Chawal Rice2. Triticum aestivum L. Gehun Bread wheat3. Zea mays L. Makka Maize4. Sorghum bicolor (L.) Moench Jowar Sorghum5. Pennisetum glaucum (L.) R. Br. Bajra Pearl millet6. Cicer arietinum L. Chana Chickpea7. Cajanus cajan (L.) Millsp. Arhar Pigeon pea8. Vigna radiata (L). Wilczek Mung Green gram9. Vigna mungo (L.) Hepper Urd Black gram10. Lens culinaris Medik Masur Lentil11. Pisum sativum L. Matar Field pea
Basmati Patent Battle ControversyIn September 1997, a Texas companycalled Rice-Tec won a patent (U.S.Patent No. 5,663,484) on "basmati ricelines and grains." The patent secureslines of basmati and basmati-like riceand ways of analyzing that rice. Rice-Tec, owned by Prince Hans-Adam ofLiechtenstein, faced internationaloutrage over allegations of bio-piracy.
It had also caused a brief diplomatic crisisbetween India and United States with Indiathreatening to take the matter to WTO as aviolation of TRIPS which could haveresulted in a major embarrassment for theUnited States. Both voluntarily and dueto review decisions by the United StatesPatent Office, Rice-Tec has lost most of theclaims of the patent, including, mostimportantly, the right to call their rice lines"basmati." This was a huge victory forIndian farmers, who could have facedenormous economic losses from the grantof patent.
SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUTThe Semiconductor Integrated CircuitsLayout-Design Act, 2000 was passedto fulfill India’s obligations as a TRIPSsignatory. It provides protection forsemiconductor IC layout designs.Layout design includes a layout oftransistors and other circuitry elementsand includes lead wires connectingsuch elements and expressed in anymanner in a semiconductor IC.
SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUTThe Act defines a semiconductorintegrated circuit as, “a producthaving transistors and othercircuitry elements which areinseparably formed on asemiconductor material or aninsulating material or inside thesemiconductor material anddesigned to perform an electroniccircuitry function”.
SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUTThe obligation to protect layout-designs appliesto such layout-designs that are original in thesense that they are the result of their creatorsown intellectual effort and are not commonplaceamong creators of layout-designs andmanufacturers of integrated circuits at the timeof their creationThe exclusive rights include the right ofreproduction and the right of importation, saleand other distribution for commercial purposes