Intellectual property rights

INTELLECTUAL PROPERTY RIGHTS
MEANING:
Intellectual Property refers to those products that are primarily creations of the mind. They are
inventions, literary and artistic works, symbols, names, images, and designs used in commerce,
protected in law as patents, copyrights, trademarks, industrial designs and others.
Intellectual Property Right encompasses a bundle of rights – the right to re-produce, distribute,
license, sell and exploit intellectual property in any legal fashion.
Unlike physical goods intellectual products cannot be contained within any region especially
with the free flow of information by means of the latest technologies.
NATURE OF INTELLECTUAL PROPERTY RIGHTS:
Intellectual Property Rights are basically private rights.
By means of intellectual property rights, law confers an interest that is akin to a monopoly, with
the sole purpose of stimulating innovations and creativity.
Protection is granted to the rights holders not merely to convey an exclusive title for the creations
but also includes the right to reproduce, distribute and gain commercial returns for their
creations.
These rights have become commercial commodities and form the core of trading activities across
the globe, intellectual property has entered the global markets and cannot remain territorial in
nature any longer.
Intellectual property rights are now protected at the global level as well as within regional and
local frameworks of law.
TYPES OF INTELLECTUAL PROPERTY RIGHTS:
Intellectual Property is traditionally divided into two branches, “Industrial Property” and
“Copyright”.
According to The Convention Establishing the World Intellectual Property Organisation (WIPO)
intellectual property shall include rights relating to:
 Literary, artistic and scientific works.
* Performances of performing artists, phonograms, and broadcasts.
* Inventions is all fields of human endeavour.

 Scientific discoveries.
 Industrial designs.
 Trademarks, service marks, and commercial names and designations.
 Protection against unfair competition, and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic fields.
TRIPS Agreement lists out the following categories of intellectual property:
 Copyright and Related Works.
 Rights of artists, painters, musicians, sculptors, photographers and authors for copyright
in their works.
 Rights of computer programs whether in source or object code for a copyright in their
programs and compilation of data.
 Rights of performers, producers of phonograms (sound recordings) and broadcasting
organizations for a copyright in their work.
 Rights of traders in their Trademarks.
 Rights of manufactures and producers for Geographical Indications in relation to such
products and produce.
 Rights of designers for their distinctive Industrial Designs.
 Right of inventors to be granted Patents for their inventions.
 Rights of computer technologists for their Layout Designs of Integrated Circuits.
 Rights of businessmen for protection of their Undisclosed Information of Technology and
management I.e, trade secrets / confidential information or simply ‘know-how’.
DEFINITIONS OF VARIOUS CLASSES OF INTELLECTUAL PROPERTY:
INDUSTRIAL PROPERTY:
 The expression “industrial property” covers inventions and industrial designs.
 To distinguish between the two, inventions are new solutions to technical problems, and
industrial designs are aesthetic creations determining the appearance of industrial
products.
PATENTS:
 A Patent is a document, issued, upon application, by a government office, or a regional
office acting for several countries, which describes an invention and creates a legal

situation in which the patented invention can normally only be exploited i.e,
manufactured, used, sold, imported with the authorization of the owner of the paten.
 Patents are meant to protect technical innovation and require a formal application
process.
COPYRIGHT:
The rights of authors of literary and artistic works (such as books and other writings, musical
compositions, paintings, sculpture, computer programs and films) are protected by copyright.
TRADEMARKS:
A Trademarks is a sign that individualizes the goods of a give enterprise and distinguishes them
from the goods of its competitors.
GEOGRAPHICAL INDICATIONS:
 Geographical Indications’ is a category of IP that has made its foray into the legal realms
only recently. The term ‘geographical indication’ refers to the protection as a category of
IP, names and symbols, which indicate a certain geographical origin of a given product.
 Well-known examples would be Champagne and Darjeeling, the former more likely to
bring to mind white wine and the latter, tea, than the places themselves.
INDUSTRIAL DESIGNS
Industrial design refers to the creative activity of achieving a formal or ornamental appearance
for mass-produced items that, within the available cost constraints, satisfies both the need for the
item to appeal visually to potential consumers, and the need for the item to perform its intended
function efficiently.
LAY-OUT DESIGNS OF INTEGRATED CIRCUITS:
 Lay-out designs or topographies of ‘Integrated Circuits’ are the subject matter of the
Treaty on Intellectual Property in Respect of Integrated Circuits that provides the
following definitions:
 “Integrated circuit” means a product, in its final form or an intermediate form, in which
the elements, at least one of which is an active element.
 “Layout-design (topography)”means the three-dimensional disposition, however
expressed, of the elements, at least one of which is an active element, and of some or all

of the interconnections of an integrated circuit, or such a three-dimensional disposition
prepared for an integrated circuit intended for manufacture.
TRADITIONAL KNOWLEDGE:
Traditional Knowledge is a category of creations of the human intellect that are on the verge of
being admitted into the hallowed realms of IP protection.
The Intergovernmental Committee of the WIPO on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore is charged with the task of delineating “the scope of subject
matter in respect of which the Member States wish to discuss the application of intellectual
property protection for the purpose of having a definition of the term ‘traditional knowledge.
Traditional knowledge embraces all kinds of scientific, agricultural, technical, architectural,
herbal, medicinal and ecological knowledge.
SOURCES OF INTELLECTUAL PROPERTY RIGHTS:
 The major sources of intellectual property rights are customs and international
conventions and treaties.
 The international regime of intellectual property rights is governed by a plethora of
treaties and conventions.
 These treatises and conventions have created a complex web of rules and regulations,
which create standards for protection of IPRs to be incorporated in the national laws of
the Signatory States.
INTERNATIONAL TREATIES RELATING TO THE PROTECTION OF INTELLECTUAL
PROPERTY RIGHTS:
Treaties Relating to Global Administration of
Intellectual Property Rights
• Convention establishing the World
Intellectual Property Organisation,
1967.
• Agreement on Trade Related Aspects of
Intellectual Property Rights, 1994.
Treaty on Industrial Property • The Paris Convention.
Patent Treaties • The Patent Law, Treaty, 2000.
• The Patent Co-Operation Treaty, 1970.
• The Strasbourg Agreement, 1971.

• The Budapest Agreement, 1977.
Trademark Treaties • The Trademarks Law Treaty, 1984.
• The Madrid Agreement on Trademarks,
1891.
• The Nice Agreement, 1957.
• Vienna Agreement on Classification,
1973
• The Nairobi Treaty, 1981.
Industrial Design Treaties • The Hague Agreement on Industrial
Designs, 1925.
• The Lacarno Agreement, 1968.
Geographical Indication Treaties • The Madrid Agreement on Indications
of Source, 1981.
• Lisbon Agreement , 1958
Sui Generis Treaties • UPOV Convention, 1991.
• Washington Treaty, 1984.
Copyright and Related Rights • The Berne convention, 1893
• The WIPO Copyright Treaty, 1996.
• The Rome Convention on Related
Rights, 1971.
• The WIPO Performance and
Phonograms Treaty, 1996.
• Convention for the Protection of
Producers of Phonograms Against
Unauthorised Duplication of their
Phonograms, 1971.
• The Universal Copyright Convention,
1952.
• The Avoidance of Double Taxation
Treaties, 1979.
REGIONAL TREATIES RELATING TO INTELLECTUAL PROPERTY RIGHTS:
Treaties • The Libreville Agreement, 1962 as modified by the Bangui
Agreement, 1977.
• The Benelux Convention concerning Trademarks, 1962.
• The Benelux Designs Convention, 1966.
• European Patent Convention, 1973.

• The Lusaka Agreement, 1976 and the Harare Protocol, 1982.
• The Patent Regulations of the Gulf Co-operation Council, 1999.
• Eurasian Patent Convention, 1994.
PATENTS, DESIGNS, TRADE MARKS, PASSING OFF, COPYRIGHTS AND
GEOGRAPHICAL INDICATIONS OF GOODS
Trademarks, patents and copyrights affect the growth and prosperity of almost every industry
particularly, the chemicals and pharmaceuticals industries, the printing, publishing and
entertainment industries, like the film and recording industries, and the computer software
industry.
Familiarity with the law relating to these subjects has thus become fundamental to business
strategy.
It is important to know the rights and options as well as the legal formalities and requirements
necessary for protecting the products and ideas in the highly competitive market of today.
PATENTS
What is a Patent?
A patent is a monopoly right granted to a person who has invented a new and useful article, or an
improvement of an existing article, or a new process of making an article.
It consists of an exclusive right to manufacture the new article invented or manufacture an article
according to the invented process for a limited period.
After the expiry of the duration of patent, anybody can make use of the invention.
Benefits of Patent
The chief benefit of patents is that they encourage inventions, on a commercial scale, and ensure
that ultimately the patented article or process is utilised for the general good of the people at
large.
Governing Act
The Indian Patents Act, 1970, contains the law governing patents.
A patent can be obtained only for an invention which is new and useful.
The following are not treated as inventions, under the Act, and are not patentable.
 A frivolous invention which claims anything obviously contrary to well established
natural laws.

 An invention, the primary or intended use or commercial exploitation of which could be
contrary to public order or morality.
 A method of agriculture or horticulture.
 Any process for the medicinal, surgical, curative, diagnostic, or other treatment of human
beings.
 Plants and animals in whole or any part thereof other than micro-organisms but including
seeds, varieties and species.
Note: In this context, it may be mentioned that some foreign inventors’ contend that
method of treatment of plants should qualify as inventions and that biological inventions
and methods of agriculture or horticulture ought to be protected.
 A mathematical or business method or a computer program
PROCEDURE FOR OBTAINING A PATENT:
Who may apply:
An application for a patent for an invention may be made by:
 Any person claiming to be the true and first inventor of the invention.
 By the legal representative of any deceased person who immediately before his death was
entitled to make such an application.
Form of Application:
Every application for a patent shall be for one invention only and shall be made in the prescribed
form and filed in the Patent Office.
Term of Patent:
The term of every patent shall be twenty years from the date of filing of the application for the
patent.
A patent shall cease to have effect on the expiration of the aforesaid period, unless it is renewed.
However, on cessation of a patent right due to non-payment of renewal fee or on expiry of the
term of patent, the subject matter covered by the said patent shall not be entitled to any
protection.
Patents of Addition:
The Controller of Patents may grant, on request, to the patentee of a main invention, a patent of
any improvement in or modification of the main invention as a ‘patent of addition.’
Application and Grant of Exclusive Marketing Rights:

Application for the exclusive marketing rights for a patent shall be made before the controller in
the prescribed form and manner and on payment of prescribed fee.
A patentee shall have the exclusive right by himself, his agents or licensees to sell or distribute in
India the article or the substance from the date of approval granted by the controller in this behalf
till a period of five years or till the date of grant of patent.
Opposition to Grant of Patent:
The acceptance of a complete specification is advertised in the Official Gazette and within 4
months of such advertisement any person having commercial and substantial interest, may give
notice of opposition in the prescribed form.
Infringement of Patents:
Infringement of Patent consists in the violation of any of the exclusive rights of the patentee, viz.
to make, use, exercise, sell or distribute the invention in India.
Where the invention claimed is an article or substance, the rights of the patentee are infringed by
any one who makes or supplies that article or substance commercially for use by others.
DESIGNS
Expressing a mental conception in a physical form is designing which has become a part and
parcel of the business world today.
Governing Act:
The law governing the designs is contained in the Designs Act, 2000.
Earlier, it was governed by the Indian Patents & Designs Act, 1911.
What is a Design?
Design means only the features of shape, configuration, pattern, ornament or composition of
lines or colours applied to any article whether in two dimensional or three dimensional or in both
forms, by any industrial process or means, whether manual, mechanical or chemical, separate or
combined, which in the finished article appeal to and are judged solely by the eye; but does not

include any mode or principle of construction or anything which is in substance a mere
mechanical device and does not include any trademark.

Application for Registration of Designs
Any person who claims to be a proprietor of a new or original design can apply for registration
of a design, in Form No.1 accompanied by a fee of Rs. 1000/- to the Controller General of
Patents and Designs.
A design may be registered in not more than one class and in case of doubt as to the class in
which a design ought to be registered, the controller may decide the question.
The controller can refuse to register any design presented to him for registration. Aggrieved
person can appeal to the high Court against such decision.
Copy right in Registered Designs
The registration of a design confers on its proprietor, copyright in the design for ten years from
the date of registration, extendable for another five years.
Identification of Non-Registrable Designs
On the request of any person furnishing such information as may enable the controller to identify
the design and on payment of the prescribed fee of Rs. 500, the controller shall inform such
person whether the registration still exists in respect of the design, in respect of what classes of
articles, state the date of registration and the name and address of the registered proprietor.
TRADEMARKS
What is a Trade Mark?
A trade mark is a visual symbol in the form of a word, device, name, letter, numeral, brand,
heading, signature or label or any combination of these, applied or used in relation to goods so as
to indicate a connection, between the goods and some person who is the proprietor or registered
user of that trade mark.
Benefits of a Trade Mark
It distinguishes the goods as regards their manufacture or quality, dealt in by a particular person,
company or firm, from similar goods manufactured or dealt with by other persons, companies or
firms.

Governing Act
The Trade and Merchandise Marks Act, 1958 provides for the registration, protection of trade
marks and for the prevention of the use of fraudulent marks on merchandise.
Trade Marks Act, 1999 has been enacted to replace the Trade and Merchandise Marks Act 1958.
The new Act envisages to bring the existing law on trade marks in consonance with the
developments taking place worldwide on trade and industrial fronts.
Essentials of a good Trade Mark
In general, a manufacturer of goods is free to adopt any mark to distinguish his goods. It is to be
noted that a trade mark is something extra added to the goods for the purpose of indicating trade
origin.
Therefore, invented words or original artistic devices are generally considered to be very good
trade marks.
A trade mark should be visible to the purchaser when purchasing the goods.
It should have a distinctive colour combination or scheme of colouring to attract the eye.
A ‘deceptively similar’ trade mark can never be called a good trade mark since the very purpose
of a trade mark is to distinguish one from the other.
How to Protect a Trade Mark
By Registration: The best way to protect it, is by registration, because infringement of the mark
can then be easily established.
By Action for Passing Off: In the case of unregistered marks or marks which are not registrable,
the only way they can be protected is by an action for passing off.
In that eventuality the plaintiff will have to prove sufficient use of the mark so as to create
valuable goodwill.
By Criminal Action against Infringer: Criminal action against the infringer is possible, whether
the mark is registered or unregistered, provided the two marks very closely resemble to each
other.
Though intention to deceive need not be proved, evidence of such intention will be an important
factor in favour of the complainant.

Effect of Trade Marks on Goods – Implied Warranty on Sale.
On the sale or contract for sale of any goods to which a trade mark, has been applied, the seller
shall be deemed to warrant that the mark is a genuine mark and not falsely applied, unless the
contrary is expressed in writing singed by the seller.
Registration of Trade Marks
A Register of Trade Marks is kept at the Head Office of the Trade Marks Registry in which all
Trade Marks registered are entered with the relevant particulars.
The Register is divided in two parts – Part A and Part B.
The qualifications for registration in Part B are less stringent than those required for Part A
registration.
The validity of Part A registration cannot normally be challenged after the expiry of 7 years from
the date of registration.
What Trademarks are registrable:
A trade mark for being registered, must contain or consist of the following essential particulars:
 The name of a company, individual or firm represented.
 The signature of the applicant for registration or some predecessor in his business.
 One of more invented words.
 One or more words having no direct reference to the character.
 Any other distinctive mark.
Marks not registrable:
The following marks are not registrable:
 A mark the use of which is likely to deceive or cause confusion as to the goods
themselves or the trade source.
 A mark the use of which would be contrary to any law for the time being in force.
 A mark comprising or containing scandalous or obscene matter.
 A mark comprising or containing any matter likely to hurt the religious sentiments of any
class or section of the citizens of India.

 A mark which would be disentitled to protection in a court of law.
 A mark which is identical to or deceptively similar to, an already registered trademark for
same goods or goods of the same description.
 A word which is the commonly used or accepted name of any single chemical element or
any single chemical compound.
PASSING OFF
What is Action for Passing Off:
In an action for Passing Off, the basic principle is that no one has any right to represent for trade
purposes, his goods or business as being the goods or business of somebody else.
The object of this law is to protect the goodwill and reputation of a business from encroachment
by dishonest competitors.
This principle has been applied to many kinds of business, such as professional associations,
business of looking after children, or organising exhibitions or any kind of services and beauty
contests.
Damage or likelihood of damage to the goodwill, is the essence of an action for passing off.
The three elements of passing off action are the reputation of goods, possibility of deception and
likelihood of damages to the plaintiff.
Defences in Passing Off Action:
 Plaintiffs trade mark or get-up has no reputation or is deceptive.
 Defendant has an independent or a concurrent right to use the trade mark.
 The defendant’s trade mark is such, or is used in such a manner, as not to cause any
passing off of goods or of the business of the plaintiff.
 The plaintiff is debarred from suing the defendant because (a) he has consented to the
infringement, (b) by principle of estoppel, (c) inordinate delay in taking action after
knowledge of infringement.
 Plaintiffs’ trade practices are themselves deceptive.
It may be mentioned here that attempts on the part of manufacturers and traders in India, who
copy well-known trade marks of foreign companies, have in a large majority of cases been
scuttled by the courts in India.

The Supreme Court in Laximi Kant V. Patel vs. Chetanbhat Shan and Another has held that
passing off cases are often cases of deliberate and intentional misrepresentation but it is well-
settled that fraud is not a necessary element of the right of action and the absence of an intention
to deceive is not a defence.
COPYRIGHTS
What is Copyright?
Copyright is a negative right which prevents the appropriation of the fruits of a man’s work,
labour or skill by another person.
This protection is given by making any infringement of copyright as unlawful; thus, copyright
prohibits any person from reproducing or copying any “literary, dramatic, musical or artistic
work,” without the consent of the owner of the copyright in that work.
Recently the protection has been extended to computer programmes, cinematograph films and
sound recording.
Benefits of Copyrights
The main object and benefit of copyright is that it ensures that any intellectual or artistic work,
which often is immeasurable in terms of money, belongs to its rightful owner or author, and none
else is able to derive any benefits by annexation of its fruits.
Governing Act
The Copyright Act, 1957 contains the law relating to copyright.
Major changes have been made by the Copyrights (Amendment) Act, 1999 which came into
force w.e.f. 15.01.2000.
Term of Copyright
In published literary, dramatic, musical and artistic work: Sixty years from the beginning of the
calendar year next following the year in which the author dies.

In case of a photograph: The copyright shall subsist for 60 years from the beginning of the
calendar year following the year of publication.
In case of Cinematograph films and sound recordings: Copyright shall subsist until 60 years from
the beginning of the calendar year next following the year in which the film or the sound
recording, as the case may be, is published.
GEOGRAPHICAL INDICATIONS OF GOODS
Governing Act
Geographical indications in relation to goods help the consumer to identify the place of origin of
the goods and thereby the quality, reputation and other distinctive characteristics.
Dehradun Basmati Rice, for instance is an example for this. Any duplication of the geographical
indication tends to deceive the consumer as well as cause losses to the producer.
In order to protect the interest of both the consumers and producers the TRIPS Agreement has
enjoined a duty on all Member States to enact legislation to protect the geographical indications.
India had no specific law for this purpose the Geographical Indications of Goods (Registration
and Protection) Act, 1999 was coined.
The geographical Indications of Goods (Registration & Protection) Rules, 2002 has also been
framed.
Geographical Indication
As per the Act “geographical indication” in relation to goods means an indication which
identifies such goods as agricultural goods or manufactured goods as originating, or
manufactured in the territory of a country or a region or locality in the territory, where a given
quality, reputation or other characteristic of such goods is essentially attributable to its
geographical origin and in case where such goods are manufactured goods, one of the activities
of either the production or of processing or the preparation of the goods concerned takes place in
such territory, region or locality, as the case may be.
Goods
“Goods” means any agricultural, natural or manufactured goods or any goods of handicraft or of
industry and includes foodstuff.
Prohibition of Registration

Following geographical indications are not registrable under the Act:
 The use of which would be likely to deceive.
 The use of which would be contrary to any law for the time being in force.
 Which comprises or contains any matter likely to hurt the religious susceptibilities of any
class or section of the citizens of India.
 Which comprises or contains scandalous or obscene matter.
 Which would otherwise be disentitled to protection in a court.
Duration and Rights conferred by Registration:
The registration is for a period of ten years and it can be renewed from time to time in
accordance with the provisions of the Act.
The registration of a geographical indication confers the following rights:
 To the authorised user exclusive right to the use of the geographical indication in relation
to the goods in respect of which the geographical indication is registered.
 To the registered proprietor and the authorised user the right to obtain relief in respect of
infringement of the geographical indication in the manner provided by the Act.

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