This article is written by Ranjeet Sonker, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

Do you have a brilliant new concept, have you composed a song, designed or own a product or any sort of original work and have fear that somebody will steal it from you when you launch it in the market. Then I must say your fear is true, wait till you can protect it with the help of IPR laws under patents, trademarks and copyrights.

When it comes to property people only think tangible property such as real estate property (buildings, houses, etc), personal property (jewellery, gold, silver money), but your concept, design, literacy work, songs and many other things are also considered as property or more specifically intangible Property. These properties also need protection against theft, being copied and rights associated with it.

To understand these terms, it is important to know what Intellectual Property and what does it entertain. The WIPO (World Intellectual Property Organisation) defines as “Creation of the mind: inventions; literary and artistic work; and symbol, names and images used in commerce.

Trademark, Copyright and Patent are collectively called as intellectual property, all three provide legal shield to the inventor when it is launched in the market and valued your work.

What is Trademark, Copyright and Patent?

Trademark

Trademark is a word, phrase, design, colour, sound, logo anything which can help to identify the product and distinguish it from the other product. Like trademark of Apple company is different trademark registered in USPTO Office from the other competitors though they produce similar products but cannot use the same symbol or name as a trademark.

If any other company starts selling the product with the same trademark of Apple company with less or price than real one then there will be great confusion among the consumer which one is real and the real Apple company will lose faith and credibility of the product.

Trademarks may be considered as a tool of communication used by the producer to inform and attract the consumer as well as to guarantee and value their product. Most people can easily distinguish trademarks for the two watches Titan and Sonata because of different and unique trademarks.

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What are the benefits of registering trademarks and its validity?

Business owners and product owners file for a registration of trademark. Registering a trademarks provides legal evidence and public notice of ownership of the product and it is proof enough of a nationwide exclusive right to the mark and allows the holder of the trademark to sue an infringer of the trademark if required. Registered trademark is valid for an unlimited time period but it should be renewed every 10 years.

Copyright

Copyright is the exclusive right to protect original work of an author that is literary and artistic work which includes writing, music, poem, short stories, fine arts such as paintings and sculptures, and technology-based such as computer and electronic databases. 

Copyright protects works, that is expression of thoughts, not ideas. Suppose if you imagine a plot of love-story of rich girls falling in love with a poor boy would not be protected, different writers may build a story around this plot, make different movies on it. But when you express it, let say a play or movie then the expression of the plot in that story will be protected.

The Copyright Act grants a number of exclusive rights to authors such as the right to reproduce the work, exclusive right to distribute the work, and exclusive right to display. There are a number of exclusive rights that allow the author to realize the commercial gain from the work. The author may sell or license any of these rights to a third-party. For more on copyright law, check out Nolo’s Copyright Handbook, by Stephen Fishman.

It should not be required that the literary and artistic work should have good or artistic value, but it should be original. The exact eligibility for copyright may differ from country to country, and often determined by the decided case law but the centre theme is that it should be original not copied.

Originally the duration of copyright depends on the year when it was created, over the year the laws have changed. Now, most of the works have been copyright-protected for the 70 years after the author’s death. After that time, the work can be reproduced without the permission.

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Patent

Patents protect new inventions and discoveries. A patent is property right granted by a sovereign authority to an inventor for the process, design, or invention for a designated period in exchange for a comprehensive disclosure of the invention and they are a form of incorporeal right. Most patents are valid for 20 years in the U.S. from the date the application was filed with the USPTO, office, although there are some exceptions made to extend a patent’s term. These patents which applied in the USTPO,  are only valid in the United States and US Territories. If anybody wants protection outside the United States, then it is important to research the intellectual property rights of that nation and apply for the protection with their governing authorities in which he seeks the protection.

According to the USPTO office, a patent can be granted to anyone who:

Invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent, subject to the conditions and requirements of the law. 

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How many types of Patent are there?

Usually there are three patents available and each has its own durations and specifications: Utility patents, design patents, and plants patents.

Utility Patents

Utility patents are patents for invention, grant legal protection to people who invent a new and useful process, an article of manufacture, a machine or a composition of matter. This patent is the most common type, with more than 90% of patents issued by the U.S government belong to this category. This patent would last for 20 years from the date of filling as long as maintenance duly paid.

Design Patents

Design patents are the patent for original, new and ornamental design of the manufactured products. It protects the design or appearance of something. They require the invention to which the design belongs to be original and have industrial value. Design patents last for 15 years for applications filed after 13 May, 2015 and for the application filed before 13 May, 2015 patent last for 14 years from the date of the filing. Maintenance fees do not apply to design patents.

Plant Patents

Plant patents are the patent that protects the discovery, and invents a new variety or kind plant capable of reproduction developed by anyone. Plant Patent can help an inventor to  secure high profit during the plant protection by preventing the competitor from using it. These patents are granted for 20 years from the date of filing and no maintenance fee applicable on it.

Patents can provide incentive for the individuals or companies to continue developing new and innovative products and services without the fear of infringement and exclusive right to gain profit on such innovations. Suppose a company or individual can spend billions of dollars on R&D and produce new variety or technology. Without protection, it could be easily duplicated and sold by others without investing the capital needed for R&D and derived the profit  on it. This would discourage the companies or individuals to invest in new technology or novel ideas or inventions. 

How to apply for a Trademark, Copyright and Patent

Before making a formal application for the registration trademark, copyright and patent in the country in which the applicant wanted, the applicant should research the Patent and Trademark Office’s database to check if any other person or institution has claimed these for a similar invention. The invention must be a different or improved version of a previous design to be considered for a patent. The applicant needs to take care to maintain accurate records of the design process and the steps taken to create the invention as proof of invention or original work and uniqueness of the logo or anything which can be trademark of the company. If a trademark is not unique then there will be great confusion in the market about the authenticity of the brand.

To apply for a  patent in the United States, the applicant must research the database of the USPTO Office. With written documents including drawing, description, and claims of the item to be patented or copyright or for trademark. A formal declaration confirming the authenticity of the claim with duly signed and submitted by the inventor or claimer. After the fee payment, the application is reviewed and either could be approved or denied depending upon the conditions applicable.

Each of the distinct features of the Trademark, Copyright and Patent, sometimes a product can come into one or more of these categories. Very good example of this is software. The software source code will be protected by the Copyright, while the functional expression of working of the software will be protected by the Patent and name of the company of the software will come under protection of the Trademark.

Difference between Trademark, Copyright, and Patent

Trademarks are intellectual property that provide legal protection on words, phrases, design, or marks that identify a specific product and service. This contributes to the image and reputation of the product and service to which it belongs, and the company to which it belongs. Apart from symbolism, a trademark can be incredibly valuable to a company, prompting some companies to include them in their valuation. Trademarks are protected forever, as long as the holder can defend it.

Patents are the legal right granted to inventors to protect their invention for a certain period of time, usually 20 years. By this they limit others from reproducing, using, or profiting from it without the consent of the patent owner. The granting authority issues a patent in exchange for permission to publish details about the invention, such as how it’s made and what it’s used for.

Copyrights are legal protections on creative works of the mind, it protection for the expression of the idea not for the protection of ideas. According to the United State Patent and Trademark Office (USPTO) “Original works of authorship.” Visual art, literary works such as play, shorts stories, choreography, and software included by them. Among all the intellectual property, copyright prevents others from replicating, duplicating or using it without the permission of the copyright owner. Copyright owner can allow others to use his own terms and conditions and can derive money in exchange for it. Copyright is usually granted for the maximum period of 70 years from the death of the author, but it can vary from country to country.

What are common problems in application of registration?

There can be many errors which you can make in the application for the registration. Some errors can be fixed but others cannot. If you make non-fixable errors it is recommended to start the application process over. Even if you fix an error, it is complicated and possible the costiler.

There are few example of Non-fixable errors are as follows: (USPTO)

1. Identify the wrong party as the trademark owner in the application, example if the store is jointly owned by you and your partner but in application you have stated the store is solely owned by you, your application will be rejected and it not be fixed.
2. You incorrectly identified your goods or services.
3. Your trademark conflicts with an already registered or applied for trademark.
4. Your trademark is generic or commonly used.

These cannot be fixed, even if it is a complicated process. It is better to start the process again.

 There are fixable or possibly fixable mistakes:

1. Your trademark is descriptive.
2. If your trademark merely describes some aspect of your goods or services, we will refuse to register it. For example:

• Your trademark includes another person’s name, but you don’t have their consent
• Your trademark consists of a surname only.
• Specimen is the wrong type or doesn’t show use as a trademark.

Conclusion

Trademark, Copyright and Patent are the most valuable intellectual property which can protect and encourage the inventor for innovation and original work. It has been a growing field for some time now and it is poised to grow further with the coming times as well.

The importance of intellectual property rights falls all across the world as there is lots of infringement happening day by day and it goes unnoticed. India is also recognizing the need for Intellectual Property Rights to encourage the inventor for innovative and new ideas of expression in different fields.

References

1. https://www.wipo.int/portal/en/index.html
2. https://www.uspto.gov/trademarks
3. www.mondaq.com
4. https://ipleaders.in/home
5. https://www.investopedia.com/articles/investing/111014/patents-trademarks-and-copyrights-basics.asp

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.