This article is authored by Nidhi Bajaj, pursuing BA.LL.B from Guru Nanak Dev University, Punjab. In this article, you will learn about the meaning and various components of intellectual property rights, the international and national regime of IPR and other related aspects regarding IPR in India.
It has been published by Rachit Garg.
Table of Contents
Intellectual Property Rights (IPRs) are the rights associated with intangible property owned by a person/company and protected against use without consent. Thus, rights relating to ownership of intellectual property are called Intellectual Property Rights. These rights aim to protect intellectual property (creations of human intellect) by allowing the creators of trademarks, patents, or copyrighted works to benefit from their creations. The Universal Declaration of Human Rights (UDHR) also refers to intellectual property rights under Article 27 which states that “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Thus, the purpose of IPR is to reward human intellect by providing exclusive rights to the creators over their inventions, artistic, musical works, etc.
In this article, the author has discussed the meaning of intellectual property and intellectual property rights, the international regime of IPR and laws relating to IPR in India, etc.
Meaning and nature of the intellectual property
Intellectual property (IP) is an intangible property that comes into existence through human intellect. It refers to the creations of the mind or the products of human intellect such as inventions; designs; literary and artistic works; symbols, names and images used in commerce.
The “Convention Establishing the World Intellectual Property Organisation” states that “intellectual property” shall include the rights relating to: —
- literary, artistic, and scientific works,
- performances of performing artists, phonograms, and broadcasts,
- inventions in all fields of human endeavour,
- scientific discoveries,
- industrial designs,
- trademarks, service marks, commercial names and designations,
- protection against unfair competition, and
- all other rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields.
Other categories of intellectual property include geographical indications, rights in respect of know-how or undisclosed information, and layout designs of integrated circuits.
Meaning of Intellectual Property Rights
The term “Intellectual Property Rights (IPR)” is used to refer to the bundle of rights conferred by law on a creator/owner of intellectual property. These are the rights that a person has over the creations of his mind. They seek to protect the interests of the creators by rewarding their mental labour and allowing them to retain property rights over their creations. The creators and inventors are thus allowed to benefit from their creations. IP rights are the legal rights governing the use of intellectual property.
Need for legal protection of intellectual property
The various reasons behind granting protection to intellectual property through the enactment of suitable Intellectual Property (IP) laws are as follows:
- To encourage inventions and creations that promote the social, economic, scientific, and cultural development of society by incentivising the creators and allowing them to make economic gains out of their creations.
- To provide legal protection to intellectual creations.
- To prevent third parties from enjoying the fruits of someone else’s creativity.
- To facilitate fair trading.
- To promote creativity and its dissemination.
- Giving recognition to the efforts of creators.
- Preventing the infringement of proprietary rights of creators in their creations from unauthorised use.
- To encourage investment of skill, time, finance, and other resources into innovation activities in a manner that is beneficial to society.
Advantages and disadvantages of Intellectual Property Rights
Advantages of Intellectual Property Rights
- IPR protection gives your business a competitive advantage over other similar businesses.
- IPR protection allows you to prevent unauthorised use of your intellectual property and works.
- IPR enhances the value of your company and also opens avenues for collaborations and opportunities for generating income such as by entering into licensing agreements to exploit/work the invention/work.
- IPR helps to attract clients and creates your brand value. For example, the consumers start identifying your products with the unique logo or registered trademark.
Disadvantages of Intellectual Property Rights
- You have to incur additional costs for getting IPR protection including legal costs and other fees.
- Even after getting the intellectual property right, you might still face a lot of difficulties in curbing the copying and unauthorised use of your work. Moreover, sometimes an attempt to enforce IP rights could lead to a reduction in the consumer base.
- IP rights aren’t absolute. There are certain limitations and conditions imposed by law on the exercise of these rights (such as a limited period of protection and compulsory licensing provisions) in the interests of the general public.
Components of Intellectual Property Rights
The term ‘copyright’ concerns the rights of the creators/authors of literary and artistic works. A copyright is also called a ‘literary right’ or ‘author’s right’. Copyright gives an author exclusive rights to his creation and prevents the copying and unauthorised publishing of his work. Copyright protection begins at the very moment a work is created and expressed in some tangible form. Copyright protection is granted to a work that is an original creation. Also, the protection extends only to expressions. Mere ideas without any tangible expression are not granted legal protection and do not form the subject matter of copyright. Copyright protects the following two rights of the author:
- Economic rights i.e., the right of the owner to derive financial benefit from the use of their works by others. For instance, the right to prohibit or authorise reproduction of the work in various forms, the right to prohibit unauthorised translation of the work, etc.
- Moral rights i.e., protection of non-economic interests of the author. For instance, the right to oppose changes to work and the right to claim authorship, etc.
What kind of works can be protected under copyright
The following categories of works typically come under copyright protection:
- Literary works such as novels, plays, poems, and newspaper articles;
- Computer programs and databases;
- Films, musical compositions, and choreography;
- Artistic works such as photographs, paintings, drawings, and sculpture;
- Architecture and advertisements, maps, and technical drawings.
In India, the term of copyright protection extends throughout the lifetime of the author and then 60 years after his death.
Law relating to copyright in India : the Copyright Act, 1957
The Copyright Act, 1957 is a comprehensive legislation dealing with copyrights in India. The Act regulates the various aspects relating to copyright regime in India such as:
- Registration of copyright
- Publication, term of copyright
- Assignment, and licence of copyright
- Special rights of broadcasting organisation and performer’s rights
- Infringement of copyright and remedies thereof
- Establishment of copyright authorities and copyright societies
- International Copyright
The term of copyright protection provided under the Act for the various categories of works is given below:
- Literary, dramatic, musical and artistic works: Life of the author plus 60 years after death.
- Anonymous and pseudonymous works: 60 years from the date of publication. However, if the identity of the author is disclosed before the expiry of that 60 years, then the term of protection shall be life of the author plus 60 years after death.
- Posthumous works: 60 years from publication.
- Cinematograph films: 60 years from publication.
- Sound recordings: 60 years from publication.
- Government work: 60 years from publication.
- Works of public undertakings: 60 years from publication.
- Works of international organisations: 60 years from the publication of the work.
Section 51 of the Copyright Act, 1957 provides for ‘What constitutes copyright infringement’. Copyright is said to be infringed:
- when a person does something that the owner of the copyright has the exclusive right to do, or permits for profit the use of any place for the purpose of the communication of the work to the public, where such communication constitutes an infringement of the copyright in the work, without a licence or in violation of the conditions of the licence.
- When any person makes for sale or hire, sells or lets for hire, or displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to prejudice the owner of the copyright, or exhibits in public, or imports into India any infringing copies of the work.
Section 52 enlists the acts which do not constitute an infringement of copyright such as fair dealing in any work for personal, private use or for research, reproducing any work for the purpose of a judicial proceeding or replication by a teacher or a pupil in the course of teaching etc.
It is pertinent to note that the Copyright Act provides for both civil and criminal remedies against infringement of copyright.
How to register a copyright in India
The Registrar of Copyrights maintains a Register of Copyrights wherein he enters the names or titles of works and the names and addresses of authors, publishers and owners of the copyright. This entering or recording of names and other particulars of the copyright owners in the register of copyrights is called Registration of copyright.
Steps to register copyright
- Filing of application: The author/publisher/owner or any other person interested in the copyright can make an application (Form-XIV of Copyright Rules) for registration of copyright to the Registrar of Copyrights. Such application must be accompanied by the prescribed fee for entering particulars of the work in the Register of Copyrights.
Also, an application for registration of copyright shall be in respect of one work only. It should be signed only by the applicant, who may be the owner or author of the right. In case, the application is made by the owner of the copyright, an original copy of a no-objection certificate issued by the author in the favour of the owner has to be submitted.
- Application for registration of copyright in an unpublished work: An application for registration of an unpublished work should be accompanied by two copies of the work.
- Application for registration regarding an artistic work that is being used or could be used in connection with any goods or services: In case the application for registration is regarding an artistic work that is or can be used in relation to any goods or services, the application must include a statement along with a Certificate from the Registrar of Trademarks that no trademark identical to or deceptively similar to such artistic work has been registered under the Trademarks Act, 1999 or no such application has been made.
- Application for registration in respect of an artistic work which is capable of being registered as a design: In this case, the application must be supported by an affidavit declaring that:
- The design has not been registered under the Designs Act, 2000, and
- That it has not been applied to an article through an industrial process and reproduced more than 50 times.
- Mode of filing the application: The application for registration of copyright can be filed in following modes:
- By visiting the Copyright Office in person; or
- By post; or
- By online facility i.e., https://www.copyright.gov.in/UserRegistration/frmLoginPage.aspx.
- Notice of application: The person applying for registration of copyright has to give the notice of the application to every person who claims to have, or has any interest in the subject matter of the copyright or who is disputing the rights of the applicant to the copyright.
- Entering of particulars in Register of Copyright: A thirty day period is given for filing of objections and if no objections to the registration are received by the Registrar, and on being satisfied that the particulars stated in the application are correct, the Registrar of Copyright shall enter such particulars in the Register of Copyrights.
- Completion of registration process: The registration process is complete when a copy of the entries made in the register of copyrights is signed and issued by the Registrar of Copyrights or by the Deputy Registrar of Copyrights. Also, every entry made by the Registrar of Copyrights has to be published by him in the prescribed manner.
Need and benefits of registration of copyright
The registration of copyright is optional. However, the registration of copyright offers several advantages to the author or owner of copyright. This can be discerned from Section 48 of the Copyright Act. Section 48 provides that the register of copyright is prima facie evidence of the particulars entered therein and shall be admissible in evidence in all courts. Thus, a person who has got the copyright registered in his name is generally presumed to be the author/owner of the work. Registration of copyright is beneficial due to the following reasons:
- It allows the owner to protect his work from being used in an unauthorised manner.
- It becomes easier to claim ownership and royalties for your work when it is to be used or adapted in any manner.
- Copyright registration specifies the date of publication.
- Registration of copyright in your name might work in your favour in case of any claim of copyright infringement.
A patent is an exclusive right granted for an invention or innovation, which might be a product, a method or a process, that introduces a novel way of doing something or offers a new technical solution to a problem. In other words, it is a right of monopoly granted to a person who has invented:
- a new and useful article, or
- improvement of an existing article, or
- a new process of making an article.
A patent is granted for inventions having industrial and commercial value. It is the exclusive right to manufacture the new article/manufacture the article with the invented process for a limited period of time (usually 20 years from the filing date of the application) in exchange for disclosure of the invention. A patent owner can sell his patent or grant licence to others to exploit the same.
Criteria for patentability of an invention
- It should be novel.
- It should have inventive steps or it must be non-obvious.
- It should be capable of Industrial application.
What kind of protection is given by patents
- The patent owner possesses the exclusive right to prevent others from commercially exploiting the patented invention.
- Third parties are prevented from manufacturing, using, distributing, selling etc. the patented invention/product without the consent of the patent owner.
Patent law in India: the Patents Act, 1970
The invention of a person can be patented only if the procedure and other requirements prescribed in the Patents Act, 1970 are fulfilled. The Patent Act, 1970 provides for a detailed procedure for obtaining a patent, right from the filing of an application to the grant of a patent. The Act also contains provisions for rights and obligations of the patentee, term of the patent, transfer of patent, surrender, revocation, and restoration of patent, infringement of patent, and remedies thereof. The Act provides for patent protection for a period of 20 years after which the technology or invention goes to the public domain.
It is worth mentioning that earlier no product patent could be granted for medicine, food items and chemicals and only the process of manufacturing medicines, food items and chemicals could be patented. However, after the Patent (Amendment) Act, 2005 product patents can be issued for manufacturing these products.
Patent infringement and remedies
Any violation of the rights of the patentee constitutes infringement of patent such as a colorable imitation of your invention or taking of the essential features of your invention. Under the Patents Act, Sections 47 and 107-A provides for the acts that shall not be considered as an infringement of patent. For example, the import of any machine or other articles by or on behalf of the government or the manufacturing or use of a patented process by or on behalf of the government does not constitute patent infringement. The various remedies available against patent infringement are as follows:
- Damages or account of profits
- Delivery up or destruction of infringing goods
- Certificate of validity
Procedure of obtaining a patent in India
You can file a patent application at the Patent Office in physical mode or in electronic mode.
Following are the steps involved in obtaining a patent:
- Filing of application
- Place of filing patent application: A patent application has to be filed at the head office of the patent office or the branch office, within whose territorial limits:
- Applicant normally resides or has a domicile, or
- Applicant has a place of business, or
- At the place where the invention actually originated.
- Mode of filing application: You can submit the patent application through post or by hand. You can also opt for e-filing through https://ipindiaonline.gov.in/epatentfiling/user/frmLogin.aspx.
- Who can file the application: Following persons either alone or jointly can file the patent application:
- Any person claiming to be the true and first inventor of the invention;
- Assignee of the above in respect of the right to make such an application;
- The legal representative of any deceased person who was entitled to make such an application immediately before his death.
- Form of application: Every patent application shall be for one invention only.
- Every application must specify that the applicant possesses the invention and identify the individual claiming to be the true and first inventor. If the individual claiming to be the true and first inventor is not the applicant or one of the applicants, the application must state that the applicant believes the person so listed/named to be the true and first inventor.
- Application must be accompanied by a provisional or a complete specification.
- Filing of provisional and complete specification
- What is patent specification: A patent specification is a technical document describing the invention. The provisional specification gives the initial description of the invention on the filing of the patent application. Whereas a complete specification gives full and sufficient detail of an invention in such a manner that a person skilled in the art can use the invention when he reads such a description.
- If the patent application is accompanied by a provisional specification, the complete specification has to be filed within 12 months from the date of the filing of such application. In case it is not filed within the said period, the application is deemed to have been abandoned.
- Claim of priority date: Priority date is the date on which the patentee claims his invention. There shall be a priority date for each claim of a complete specification. Generally, the priority date is the date of filing of the provisional specification provided the claims contained therein are fairly based on the description of the invention as given in the provisional specification. But when the patent application is accompanied by complete specification or if any application is post-dated to the date of filing of complete specification, in that case the priority date shall be the date of filing of the complete specification.
- Amendment of specification: The applicant may amend the application, the complete specification and other documents before or after the grant of the patent. Such amendment shall be in accordance with the procedure prescribed as regards to the permission of the Controller and publication of the amendment.
- Publication and Examination of application
- The patent application shall not be open to the public until the expiry of 18 months from the date of filing of the application or the date of the priority of the application. However, applicants may request the Controller to publish the application at an earlier date.
- The application is published within one month after the expiry of the said period of 18 months.
- Thereafter, a request has to be made by the applicant or other interested persons for examination of the application. Such a request shall be made within 48 months from the date of priority of the application or from the date of filing of application, whichever is earlier. If the request is not made within the prescribed period, the application is treated as withdrawn.
- Time for putting application in order for grant: The applicant must comply with all the requirements imposed on him by or under the Act in relation to the application within 12 months from the date on which the Controller forwarded to the applicant the first statement of objections to the application, complete specification, or other documents related thereto.
- Opposition to grant of patent
- Pre-grant opposition: Before the patent has been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of the patent.
- Post-grant opposition: After the grant of the patent but before the expiry of 1 year from the date of publication of grant of patent, any interested person may give notice of opposition to the Controller. Thereafter, the Controller constitutes the Opposition Board and the patent may be revoked on the basis of the report of the Board.
- Grant of patent
- If the application for patent is found to be in order for grant of patent, the patent shall be granted.
- On the grant of patent, the Controller publishes the fact of such grant and thereupon the application and other documents shall be open for public inspection.
What are the benefits of patent registration
- Patent registration ensures the complete protection of your patent/invention against any unauthorised use for a period of 20 years.
- Patent registration allows you to enjoy monopoly in the market as regards your invention during the period of patent protection.
- Patent registration confers exclusive right to exploit the patent on patentee or his licensee or assignee.
- You can licence the patent and gain royalties for the same.
Trademarks and service marks
A trademark is a symbol that is used to distinguish the goods of one enterprise from its competitors. A trademark may consist of a single letter, logo, symbol, design, or numerals and three-dimensional features such as shape and packaging, etc. Section 2(zb) of the Trademarks Act, 1999 defines “trademark” as a mark capable of graphical representation and which can be used to distinguish the goods or services of one person from those of others. A trademark may include the shape of goods, their packaging, and a combination of colours. Hence, distinctiveness is the hallmark of a trademark.
Trademarks used in connection with services such as tourism, banking, etc., are called Service Marks.
The owner has the exclusive right to the use of a registered trademark. There are 45 classes of trademarks, consisting of 34 classes of products and 11 classes for services.
What is the function/purpose of a trademark
- A trademark is a symbol that identifies a product and its source.
- It reflects the goodwill of a business.
- It assures the consumer about the established quality of the product.
- It serves as an advertisement for the product.
- A registered trademark provides legal protection to your brand.
- It helps to establish a dedicated consumer base by preventing others from imitating your brand.
Law regulating to trademarks in India: the Trademarks Act, 1999
The Trademarks Act, 1999 was enacted to provide for the registration and better protection of trademarks for goods and services, as well as to prevent the use of fraudulent marks. The Act contains provisions regarding:
- Registration of trademarks
- Effect of registration
- Rights of the trademark holder
- Special provisions relating to protection of trademarks through international registration under the Madrid Protocol
- Use of trademark and registered users
- Collective marks
- Certification of trademarks
- Assignment and transmission of trademark
- Infringement and passing off action in trademark and legal remedies thereof, etc.
A trademark is registered for 10 years but it can be periodically renewed and can be used for an indefinite period.
Infringement of trademark
In order to constitute infringement of a registered trademark, following conditions are required to be fulfilled:
- The person is not authorised to use the trademark.
- The infringing trademark is similar/identical/deceptively similar to the already registered trademark.
- The infringing trademark must be used in the course of regular trade in which the registered proprietor or user is already engaged.
- The infringing trademark must be printed represented usually in advertisement, invoices or bills. Mere oral use of a trademark is not infringement.
- Using either the whole of the registered trademark or an adopted one by making a few additions and alterations.
Section 29 of the Trademarks Act provides for the common forms of trademark infringement. For instance, the advertisement of a registered trademark of another for promotion of one’s trade amounts to infringement. Following remedies are available to the trademark owner against infringement of his trademark:
- Filing suit for infringement
- Criminal remedies
Process of registration of trademark in India
The various steps involved in registration of trademark are as follows:
Application for registration
- A person claiming to be the proprietor of a trademark used or proposed to be used by him, who desires to register it has to file an application with the Registrar for registration of his trademark. Such an application shall be made in writing and must be accompanied by prescribed fees.
- A single application may be made for registration of a trademark for different classes of goods and services.
- The application has to be filed in the office of the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant is situated.
Refusal, acceptance and withdrawal of acceptance
- The Registrar may accept or reject an application after it has been received. The application may be accepted with or without amendments, modifications, conditions and limitations.
- If after acceptance, but before registration, the Registrar discovers that the application was erroneously accepted, he may withdraw the acceptance.
Advertisement of application
- The Registrar shall after acceptance of the application, cause the application to be advertised in the prescribed manner.
- The application is advertised in the Trademark Journal for the purpose of inviting objections from interested persons.
- The Registrar may cause the application to be advertised before acceptance in certain cases.
Opposition to registration
- Any person may within 4 months from the date of the advertisement give a written notice of his opposition to the registration. The notice of such registration is given to the applicant and thereafter evidence is submitted to the Registrar. After hearing the parties, the Registrar decides as to whether the registration is to be permitted or not.
- If the application for trademark registration is accepted and not opposed, or if opposed, the objection is ruled in the applicant’s favour, the Registrar must register the trademark within 18 months of the filing of the application.
- The date of registration of a trademark is the date of making of the said application.
- On registration of a trademark, the Registrar shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trademarks Registry.
Benefits of trademark registration
- A registered trademark is an intangible asset that adds value to the business.
- Trademark registration aids in creating brand value and gaining a strong position in the market.
- Registration of a trademark is prima facie evidence of its validity.
- The registered trademark holder has the exclusive right to use that mark and to obtain relief in case of infringement of trademark.
- Trademark registration is for a period of 10 years and can be renewed as well.
- A registered proprietor of a trademark has the right to transfer his right through licence or assignment of his trademark.
An industrial design means the ornamental or visual aspects of an article. It may consist of three-dimensional features, for instance, the shape of an article, or two-dimensional features, such as lines, patterns, or colour. An industrial design is purely aesthetic, non-functional, and has no utility. It is necessary to provide legal protection to the creative originality of an industrial design to prevent others from copying it.
Type of protection provided by industrial design
The owner of registered industrial design reserves the right to prevent others from manufacturing, selling, or importing articles bearing or embodying a design which is a copy of or is substantially similar to the protected design.
Kinds of products that can come under Industrial design protection
- Products of industry and handicraft items
- Household goods
- Lighting equipment
- Electronic devices
- Textiles, etc.
Law relating to designs in India: the Designs Act, 2000
The Designs Act, 2000 seeks to promote the creation of novel, original designs along with balancing competing interests by granting the time-bound monopoly right to use registered industrial design by the owner. The Act contains provisions regarding registration of designs, copyright in registered designs, industrial and international exhibitions, restoration of lapsed designs, the penalty for infringement of registered designs, etc.
Geographical Indications (GI)
A geographical indication (GI) is used to identify goods having a specific geographical origin. These indications denote quality, reputation, or other characteristics of such goods essentially attributable to their geographical origin. Generally, geographical indications are used for foodstuffs, agricultural products, wine, industrial products and handicrafts. Examples of GI include Basmati Rice, Darjeeling Tea etc.
Benefits of registration of GI
- Confers legal protection to domestic/national GI which in turn boosts exports.
- Prevents others from making unauthorised use of a Registered Geographical Indication.
- Promotes the economic well-being of producers of items produced in a specific geographic area.
Law relating to GI in India: the Geographical Indications of Goods (Registration and Protection) Act, 1999
The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides for the registration and better protection of geographical indications relating to goods. The Act contains provisions relating to the establishment of a Geographical Indications Registry, registration of geographical indications of goods, rights conferred by registration, registration of authorised users of registered geographical indications, provisions for renewal, rectification and restoration of geographical indications, and prohibition of registration of geographical indication as a trade mark, etc.
Trade Secrets are IP rights on confidential information which may be sold or licensed. A trade secret refers to any confidential business information and may include designs, drawings, plans, business strategies, R & D related information, etc. In order to qualify as a trade secret, the information should be commercially valuable i.e. useful in a trade or business, known to a small number of people, and subject to reasonable steps taken by the rightful holder of the information to keep it secret.
Types of trade secrets
- Technical information such as information regarding manufacturing processes, designs, drawings of computer programs, etc.
- Commercial information, such as distribution methods, advertising strategies, etc.
- Financial information, formulas, recipes, secret combination of elements, source codes, etc.
Layout designs of integrated circuits
Integrated circuits are used in products such as television, radio, mobile, washing machine, and data processing instruments. The layout designs of integrated circuits not only reduce the space but also enhance the capacity and performance of the system. In India, the Semiconductor Integrated Circuit Layout Design Act, 2000 regulates the registration, use, and protection of original and distinct layout designs.
The Semiconductor Integrated Circuits Layout Designs Act, 2000
The Act deals with the protection of Semiconductor Integrated Circuits layout designs. It has been enacted to give effect to Section 6 in Part II of the TRIPS Agreement relating to Layout-Design (Topographies) of Integrated Circuits. The Act contains provisions relating to registration of Semiconductor Integrated Circuits layout designs including the procedure and duration of registration, the effect of registration, assignment and transmission of registered layout-design, use of layout-design, and penalty for infringement of layout-design, etc.
Other laws relating to Intellectual Property Rights in India
The Protection of Plant Varieties and Farmers’ Rights Act, 2001
The Protection of Plant Varieties and Farmers’ Rights Act, 2001 seeks to provide legal protection to plant varieties, rights of farmers, and plant breeders and also encourages the development of new plant varieties. The Act contains provisions regarding the establishment of Protection of Plant Varieties and Farmers’ Rights Act Authority, registration of plant varieties and essentially derived variety, duration, and effect of registration, rights conferred by registration, framers’ rights, compulsory, infringement of any right provided under the Act and relief thereof.
The Biological Diversity Act, 2002
The Biological Diversity Act, 2002 provides for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge. It contains provisions relating to the regulation of access to biological diversity, the establishment of the National Biodiversity Authority and its functions, the establishment of the State Biodiversity Board and its functions, the constitution of Biodiversity Management Committees, and the constitution of the Local Biodiversity Fund, etc.
A quick glance at the important Intellectual Property Rights
|Subject of protection||Patents may be granted in any field of technology for inventions that are new and useful including a new product or an improvement of an existing product or a new process of making a product.||Original works of authors and artists ranging from books, music, paintings, sculpture to computer programs, databases, advertisements, maps and technical drawings.||Any symbols, phrase, word, design that identifies and distinguishes the source of the goods of an enterprise from those of others.|
|Requirements||Novelty and usefulnessInventive step/ Non-obviousnessIndustrial applicationMust be patentable according to the Patent Law in force||Original creative workMust be in some tangible medium||Distinctive (capable of identifying the source of a particular good)|
|Term of protection||20 years from the date of filing of application||It should be equal to or longer than 50 years after the creator’s death. In India, the copyright protection lasts for the life of the author plus 60 years after death.||Can vary but is usually 10 years and can be renewed on payment of an additional fee.|
|Rights granted to patentee/ copyright owner/ trademark holder||Right to decide who may use the invention/Right to authorise the use of patent by issuing licence and through assignmentRight to exploit the patentRight to surrender the patentRight to be issued duplicate patentRight against infringement||Right to derive financial reward from the use of work by othersRight to authorise or prevent certain uses of the workRight to authorise or prohibit reproduction of workRight to authorise or prohibit recording, for example in the form of CDs and DVDsRight to prohibit or authorise broadcasting by radio, satelliteRight to authorise or prohibit translation of work in other languagesRight to authorise adaptation of the work into a movie etc.Moral right to claim authorship of the workRight to transfer the rights through assignment or grant permissive use of the copyright to any personRight against infringement||Right to exclusive use of trademark by the owner or its licenseeRight to assignRight to seek legal remedies against infringement|
|Registration||Being a territorial right, a patent must be registered in a country according to the procedure prescribed by its Patent Law.||Copyright protection runs automatically without the need for any registration formalities. However, a system of voluntary registration is established by most countries.||Trademarks can be registered or unregistered. The Trademark Law offers protection for both registered and non-registered trademarks. However, a registered trademark provides prima facie evidence of its ownership.|
International regime of Intellectual Property Rights
Various agreements and conventions have been formulated at the international level to govern and regulate the various aspects and emerging issues relating to intellectual property rights. Some of the major efforts undertaken in the form of major international instruments, treaties, conventions, and forums dealing with intellectual property rights are as follows:
The Paris Convention on the Protection of Industrial Property
The Paris Convention on the Protection of Industrial Property adopted in 1883 is the oldest international convention and was the first major step taken towards the protection of IP rights. The Convention contains 30 Articles dealing with various aspects and types of industrial property including patents, trademarks, service marks, utility models, industrial designs, geographical indications, and the repression of unfair competition. The Convention was revised in July 1967 in Stockholm.
The Convention is based on three guiding principles:
- National treatment: Each contracting state must provide the same level of protection to nationals of other contracting states as it grants to its own nationals.
- Right of priority: The Convention provides for the right of priority in the case of patents and utility models, marks and industrial designs. This right means that the applicant may, within a certain period of filing a regular first application in one of the contracting states, apply for protection in any of the other contracting states as well. The subsequent applications filed within the grace period shall be regarded as being filed on the same date as the first application. The benefit of this provision is that applicants seeking protection in several countries need not present all of their applications at the same time and have a period of 6/12 months to decide in which countries they wish to seek protection.
- Uniform rules: The Convention lays down some common rules that must be followed by all member states such as:
- Patents granted in different contracting states for the same invention are independent of each other and the inventor has the right to be named as such in the patent.
- Industrial designs must be protected in each contracting state, and protection may not be forfeited on the ground that articles incorporating the design are not manufactured in that State.
- Protection must be granted to trade names in each contracting state without there being an obligation to file or register the names.
Patent Co-operation Treaty, 1970
The Patent Co-operation Treaty (PCT) was concluded on 19th June, 1970 and came into effect on 24th January, 1978. The treaty aims to simplify the procedure of filing patent applications in states that are party to the treaty agreement. It provides a system for filing a patent application and entitles the nationals of a contracting state to obtain patents in multiple countries around the world on the basis of a single patent application.
Berne Convention for Protection of Literary and Artistic Works, 1886
The Berne Convention for Protection of Literary and Artistic Works adopted in 1886 is the most significant International Convention dealing with copyright protection. It provides for a minimum term of protection of copyright i.e. life of the author plus 50 years or an alternative of 50 years from the publication of anonymous and pseudonymous works. The Convention is based on three basic principles:
- Principle of national treatment: The works originating in one member state must be given the same protection in each of the other member states as the latter grants to the works of its own nationals.
- Principle of automatic protection: Protection should not be conditional upon compliance with any formality. This means that the original artistic and literary works shall be given automatic global protection from the moment of their creation, in a fixed medium, thereby ensuring equal treatment to such works.
- Principle of “independence” of protection: This means that the protection is independent of whether the protection exists in the country of origin of the work or not.
Universal Copyright Convention, 1952
Universal Copyright Convention (UCC) was developed under the auspices of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) as an alternative to the Berne Convention of 1886. The Convention came into force in 1955. The Convention is based on the principle of national treatment and also requires each contracting state to maintain specific minimum legal safeguards protection of copyright. The Convention prescribes that the formalities required by the national law of a contracting state shall be considered to be satisfied if all the copies of a work originating in another contracting state carry the symbol ©, accompanied by the name of the copyright owner and the year of first publication.
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961)
The Rome Convention secures protection in performances for performers’, in phonograms for producers of phonograms, and broadcasts for broadcasting organisations. The Convention was concluded in 1961 and came into effect on 18th May 1964. It grants protection to performers if their performance takes place in another contracting state such as prohibiting the unauthorised broadcast of the performance.
WIPO Copyright Treaty, 1996
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention providing for the protection of works and the rights of their authors in the digital environment. According to the treaty, the works/subject matter protected by copyright include:
- Computer programs; and
- Databases i.e. compilations of data or other material, in any form constituting intellectual creations.
Hague Agreement concerning the International Deposit of Industrial Design, 1925
The Hague Agreement concerning the International Deposit of Industrial Design, 1925, as revised in 1960 seeks to facilitate international protection of industrial design through the provision of a single deposit with the International Bureau of WIPO in order to prevent possible infringement by other member states. The protection is offered when the industrial design is deposited on payment of a prescribed fee. Once the industrial design is registered and published, it will have the same effect in the contracting states as if it had been registered under the national laws.
World Intellectual Property Organisation (WIPO)
Established on 14th July 1967, WIPO is a global forum for intellectual property (IP) services, policies, information, and cooperation. It aims to develop an effective and balanced international IP system that encourages innovation and creativity for the benefit of all. WIPO has 193 member states.
Objectives of WIPO
- Promoting intellectual property protection around the world through state cooperation and partnership with any international organisation;
- Harmonising national intellectual property legislations and procedures;
- To provide services with regard to international applications for intellectual property rights;
- For exchanging information on intellectual property;
- To provide legal and technical assistance concerning IP to developing and other countries;
- Facilitating resolution of private intellectual property disputes;
- Marshal information technology is a tool for storing, accessing and using valuable intellectual property information.
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994 is an international level multilateral agreement that deals with the protection of intellectual property rights. The TRIPS Agreement recognizes the importance of IP in international trade and also provides a dispute resolution and prevention mechanism for trade-related IP issues. Every member of WTO is required to observe the provisions of TRIPs and provide a minimum level of IP protection in their national laws.
Categories of IP covered by TRIPs
- Copyright and related rights
- Geographical indications
- Industrial design
- Layout designs of integrated circuits
- Protection of undisclosed information
Intellectual Property Rights in India : FAQs
FAQs regarding Patents in India
- What is the term of patent in the Indian system?
The term of patent in the Indian system is 20 years from the date of filing of the application.
- Does the Indian patent give worldwide protection?
No, since patent protection is a territorial right, it is effective only within the territory of India. No concept of a global patent exists. However, an applicant filing a patent application in India can file a corresponding application for the same invention in the convention countries or under the PCT, within 12 months from the date of filing in India.
- What is the right time for applying for a patent?
A patent application should be filed as soon as possible. An application filed with a provisional specification revealing the essence of the nature of the invention aids in the registration of the priority of the invention. Delays in filing an application may expose the inventor to risks such as:
- Another inventor filing a patent application on the same invention, and
- The inventor inadvertently publishing the invention by himself/herself or by others independently of him/her.
- Who can apply for a patent?
A patent application can be filed by the true and first inventor or his assignee, either alone or jointly with any other person.
- How can I apply for a patent?
You can submit a patent application to the Indian Patent Office with either a provisional or complete specification, as well as the fee set forth in Schedule I of the Patent Act. If the application is filed with a provisional specification, then the complete specification has to be filed within 12 months from the date of filing of such provisional application.
- Can I file a patent application online?
Yes, you can file a patent application online through this portal: https://ipindiaonline.gov.in/epatentfiling/goForLogin/doLogin
- In which language can a patent application be filed?
A patent application can be filed with the Indian Patents Office in English/Hindi.
FAQs regarding designs in India
- What is the object of a design registration?
Registration of designs seeks to protect the original and creative designs and ensures that the creator/artisan/originator of a design is not deprived of the bonafide reward of his skill and labour.
- What is the effect of registration of a design?
The registration of a design grants the registered proprietor “copyright” in the design for the duration of the registration period.
- What is the duration of the registration of a design?
The duration of registration is initially 10 years from the date of registration. However, in case a priority claim has been allowed, the duration is 10 years from the priority date. This initial period of 10 years is extendable by 5 years if an application to that effect is made in Form-3 along with the prescribed fee before the expiry of said 10 years.
- Can I re-register a design in respect of which copyright has expired?
No, you cannot re-register a design, the copyright of which has expired.
- Why is it important to file for the registration of a design at the earliest?
It is important to file for the registration of a design as early as possible due to the applicability of the first-to-file rule. This means that if two or more applications are filed for registration of identical or similar designs on different dates, then only the first application shall be considered for registration of the design.
FAQs regarding Geographical indications (GI)
- What is a Geographical Indication?
- It is an indication originating from a specific geographical territory.
- It is used to identify natural, agricultural, or manufactured goods.
- The manufactured goods should be produced or processed in that territory.
- It should have a special quality or reputation or other characteristics.
- Who can apply for the registration of GI?
Any association of persons, producers, organisations or authority established by or under the law can apply for registration of GI:
- The applicant must represent the producers’ interests.
- The application must be submitted in writing in the prescribed format.
- The application, along with the prescribed fee, should be addressed to the Registrar of Geographical Indications.
- Is registration of GI compulsory?
No, registration of GI is not compulsory. However, registration affords better legal protection.
- What is the period of validity of registration of GI?
The registration of GI is valid for 10 years.
- Can a GI be renewed? What happens if it is not renewed?
Yes, GI can be renewed for an additional 10 years from time to time. In case a registered GI is not renewed, it becomes liable to be removed from the register.
The importance of IP in a world of technological, scientific, and medical innovation cannot be ignored at any cost. IP is a valuable asset since it provides a competitive advantage to the owner over other entities. To make the most out of IPR, it is advisable to get it registered. An intellectual property right is a proprietary right on the product of one’s intellect. These rights support innovation and help the innovators at every stage of the business development, competition, and expansion strategy. It is also noteworthy that registered and enforced IP rights enable the consumers to make an informed choice about the quality, safety, reliability of their purchase.
- Dr. M.K. Bhandari, Law Relating to Intellectual Property Rights, Sixth Edn. 2021
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