This article has been written by Arpita Tripathy, from KIIT School of Law. This is an exhaustive article which deals with the structural system of the Indian Intellectual Property Organization.
Table of Contents
Introduction
Intellectual property (IP) is a type of property which is intangible in nature. Intellectual property law aims to protect the creativity or intellect of a person from being misused, copied or being used for making profits. It protects the human intellect by balancing between public interest and the benefits for the creator. In this era of growing businesses and competition, it is crucial to stay ahead from other companies, therefore companies have to move above from tangible property and focus on the intellect of people. Companies have recently shifted their focus to IP. Be it the trademark of the company, copyright or patents for inventions, each and every intellectual property promotes the business of the companies. IPR has been recognized on a global level as an important aspect for a growing economy.
Types of intellectual property law
Intellectual property rights which protect the creator’s intellect have various forms and spreads over a wide range of intellect related unique work.
Copyright
Without creativity, no civilization would be able to grow. It is important to protect such creativity of human intellect. In India, Copyrights are governed by the Copyright Act, 1957. The Act has not only protected against copyright violations but has also included necessary exceptions and limitations. Copyright is a type of intellectual property which shields a creator from unlawful copying or misusing the same. Copyright is granted to literature work, artistic work, music, drama, composition, cinematographic work, photography, coding or any other creative or artistic work.
The word ‘artistic work’ has been defined in Section 2(c) of the Act putting forth that it includes drawings, sculpture, engravings, photography and architecture. According to the Copyright Act, the author is not only the one who writes, but it also includes the photographer, the artist, composer, producer and also the one who codes computer programs. Section 14 of the Copyright Act provides the creator with exclusive rights for his creation. The right under this section regarding literary work is that the author of the work can sell it, make its copies, publish, translate or adapt his work without any restrictions.
Registration of copyright
No one has to mandatorily register the copyright. If someone feels that their creative work has been infringed by someone then they can sue the person infringing their rights. The person whose copyright has been violated need not register to bring a suit, registration does not create any new right. It is generally seen that the people generally do not file for registration of copyright. However, it is still recommended to file copyright for the creative work so that the registration can serve as a proof of ownership for the work.
Rights of the copyright holder
The author of the creative work holds certain rights for his work. There are two types of rights of the author, moral rights and economic rights. Economic rights of a copyrighted work are those rights which can generate earnings for the copyright holder. Economic rights of the copyright holder have been elaborated under section 14 of the Copyright Act, 1957. The right to reproduce, sell, translate etc., are all economic rights. The moral rights of the copyright holder are of two types, right of paternity and right of integrity. These rights have been discussed under Section 57 of the Copyright Act. According to the right of paternity towards the creative work, the author can claim authorship of the work. The right of integrity under section 57 of the Act, empowers the author to protect the work from any mutilation or damage.
Timeline of copyright
The copyright for literary work, paintings, photographs, musical work and the duration of copyright is for the whole lifetime of the holder, plus, 60 years from the date of the holder. However, in case of cinematographic work, works of government, the work of international organization would be 60 years from the date of registration of the copyright.
Criminal and civil liability
When there is an infringement of copyright then the copyright holder can seek a civil or criminal remedy. Under the civil remedy, the copyright holder can seek for the cessation of the infringing activity or can demand damages. For criminal offence, the minimum fine asked for is Rs.50,000. When the offender infringes the copyright again then he may be sentenced to 1 year of imprisonment and a minimum fine of Rs. 1 Lakh.
Trademark
The term, ‘trademark’ literally means any mark which helps in the trade of an organization. Trademark can be understood as a logo or a mark or any name which distinguishes it from any other company’s identity. Trademarks are unique in nature which attracts the customers towards it. Companies, businesses or other organizations are sometimes even famous for their trademark. For a layman, the trademark of reputed businesses is also a symbol of quality.
Trademarks are governed by the Trademarks Act, 1999. The trademark should be such that it should represent familiarity with the trade of the business it is undertaking. Trademarks should be unique and have to be used for commercial purposes only. Anyone can register for a trademark.
Deceptively similar mark
When someone uses the same or similar logo or mark as has been registered by another business and has been in use so as to deceive and confuse the consumers then such a similar logo or mark is said to be a ‘deceptively similar’ mark. Deceptively similar marks have been defined under Section 2 (h) of the Trademarks Act, 1999. A false trade description as has been defined under the Act includes cases where the description of the trade has been dishonestly changed, it also includes cases where the trader mentions the meters of cloth more than the actual length. A false description is also when the business tries to use such a mark or symbol to deceive customers and attract them with such a false trademark.
If there is an infringement of trademark then the punishment for the offence would be no less than 6 months of imprisonment which can be extended up to three years and a minimum of Rs. 50000 fine, this fine can extend up to Rs. 2 Lakhs.
Patent
Patents are governed under the Patents Act of India, 1970. A patent is an intellectual property whose significance has increased in recent times due to the increase in dependence on technologies. When two or more people invent the same thing, then the first one is granted the patent. Registration is important for patents and it is better to go for registration as soon as possible because the patent might be granted to someone else if not approached early. The inventor should not wait for the invention to be complete and start working, as soon as the idea of the invention takes a shape, the inventor should go for registration of the patent.
NUNS
To know if the product is patentable or not, the concept of NUNS has to be seen. NUNS stands for, Novelty, Utility, Non-obviousness and Subject matter. NUNS means that the product which is intended to be patented has to unique and distinct (novelty), the product should be such that it has some industrial utility (Utility), the product has to be of such a nature that the invention of the product is non-obvious for the people in that field (non-obviousness) and the subject matter of the patent should be under section 3 of the Patents Act of India, 1970.
It is to be kept in mind that according to section 3 of the Act, inventions are only given the protection of patents and not mere discoveries. Discoveries have not been recognized as a subject matter of a patent. Anything which is opposed to natural laws cannot be patented. A mere mixture of substance which leads to the discovery of new substances cannot as well be patented.
Industrial design
Designs are one of the main reasons for the attraction of customers towards businesses. It is important to protect designs so that no one misuses the creativity of another person for their own proprietary benefits. If designs are not recognized and protected then people would avoid making such designs which would hamper the creative growth of the nation. The IP rights relating to designs are protected under the Designs Act, 2000.
According to Section 2(d) of the Designs Act, 2000 designs are the features of an article which gives aesthetic pleasure to the eyes. It includes the colour of the article, the pattern, lines of the article. The design can be created through any chemical, mechanical, manual work or even their combination. Any article which is covered under trademark or copyright or the term ‘property mark’ under the Indian Penal Code, 1860.
During the British period, designs were recognized as intellectual property. It has been cleared under the Act that mere mechanical process cannot be termed as a design. Designs can be two dimensional or three dimensional. Patents and Designs Act, 1911 was enacted which dealt with patent and Designs. However, after India became a member of the World Trade Organization, the Patents and Designs Act, 1911 was repealed and new legislation for Designs was enacted. The legislation was enacted to comply with the provisions of trade-related IPR.
Registration of industrial design
Just like patents, it is advisable to register a design as soon as possible. Whoever comes up first with the design will get registered and will get protected under the Act. Designs can be only registered if they are unique or in other words, designs should be novel in nature. If the design has already been published even before registration then such registration will not be accepted. For registration, it has to be seen that the design should not be inappropriate and obscene, further, it should be in accordance with public morality. The design would be considered for registration if it is felt to be appealing to the eyes.
The organizational structure of the Indian Intellectual Property Organization
The Controller General of Patent, Designs and Trademarks
The Controller General of Patent, Designs and Trademarks (CGPDM) which has been constituted under the Department of Industrial Policy and Promotion (DIPP) has been controller of the intellectual property relating to patents, designs, trademarks and geographical indication. There are currently 11 branch offices in different parts of the country. These 11 branch offices are located in five different cities in Kolkata, Delhi, Chennai, Ahmedabad and Mumbai.
The patent office which also includes designs is located in Mumbai, Chennai, Delhi and its headquarters at Kolkata. The functions of Design are mainly carried out at Kolkata office. The branch office for Geographical Indication is in Chennai. The Trademark Registry office, with its head office at Mumbai, is located at Delhi, Kolkata, Chennai and Ahmedabad. Patent Information System and National Institute of Intellectual Property Management is located in Nagpur. The Controller General of Patent, Designs and Trademark looks after the smooth registration of the intellectual property.
Challenges
When India became a member of the World Trade Organization, the TRIPS Agreement was also applied to the country. TRIPS agreement is applicable to every member of WTO. TRIPS Agreement has specified minimum standard criteria to be followed for every intellectual property.
The TRIPS agreement required to extend the scope of Intellectual Property Rights. Therefore, because of the extension of scope, the number of registrations multiplied. In the age of globalization, many foreign companies have been established in the country which has also been a factor for the increased number of registrations. In the era of competition, the businesses want to stay ahead of others by registering IPR for their intellect. One of the standards under TRIPS is to respond to all the matters within 18 months. The increase in filings and the short time period has increased the workload on these offices.
Steps taken
To deal with the increasing pressure of skyrocketing number of filings and the strict timelines, the Government took positive steps. The government-sanctioned crores of money for modernization of the offices. The information technology system was improved for making the work efficient. The core system was improved. The number of posts was increased, which would increase the workforce. Steps have also been taken to increase transparency while examining the applications. This has been done along with increasing the speed of the examination of applications.
There have been suggestions to separate the patent office from the trademark and geographical indication office. The suggestion is to make them independent of each other because both are completely different in their nature of IP.
Skills required
The suggestions are based on the fact that the skills required for the examination of a patent application and the application of a trademark are completely different. Highly qualified people are chosen for the duty to examine the patent application. For examining the patent application the examiner has to examine the nature of the invention filed for a patent, he also has to research if the invention has already been registered or not. The industrial utility, non-obviousness, novelty and subject matter of the invention has to be checked. For these duties, the examiner has to be highly qualified. The entry-level qualification is post-graduation in science or graduation in engineering. The examiner should have knowledge in at least one field of science.
An examiner in a trademark has to just look if the trademark which is a logo or a mark is distinctive or not. If it is distinctive in character or not. This work is done by the Registrar of Trademarks who has been appointed by the Government.
Conclusion
IPR is an important aspect of today’s world of business. It is important to protect the unique products of human intellect from getting misused. For this, the different legislations have been put in place. Different organizations have been set up all over the country for proper disposal of IPR related cases. The Controller General of Patent, Designs and Trademark has been set up for efficient and effective filing of different intellectual properties.
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