Introduction

Meaning of intellectual property rights

Intellectual Property Rights (IPR) refers to the legal rights granted to the inventor or
manufacturer to protect their invention or manufacture product. IP rights include trade
secrets, utility models, patents, trademarks, geographical indications, industrial design, layout
design of integratedcircuits, copyright and related rights, and new varieties of plants

IPR is a strong tool, to protect the investment, time, money, and effort invested by the
inventor/creator of the IP, as it gives the inventor/creator an exclusive right for a certain
period of time for the use of its invention/creation.
Meaning of intellectual Property

Intellectual Property can be defined as inventions of the mind, innovations, literary and artistic
work, symbols, names and images used in commerce. The objective of intellectual property
protection is to encourage the creativity of the human mind for the benefit of all and to ensure that
the benefits arising from exploiting a creation benefit the creator. This will encourage creative
activity and give investors a reasonable return on their investment in research and development.
Intellectual Property empowers individuals, enterprises, or other entities to exclude others from the use
of their creations without their consent.
IP protection encourages publication, distribution, and disclosure of the creation to the public, rather
than keeping it a secret and to encourage commercial enterprises to select creative works for
exploitation.

What is the need of IPR?

The progress and well-being of humanity rest on its capacity to create and invent new works in the
areas of technology and culture.

 Encourages innovation: The legal protection of new creations encourages the commitment of
additional resources for further innovation.
 Economic growth: The promotion and protection of intellectual property spurs economic
growth, creates new jobs and industries, and enhances the quality and enjoyment of life.
 Safeguard the rights of creators: IPR is required to safeguard creators and other producers of
their intellectual commodity, goods and services by granting them certain time-limited rights to
control the use made of the manufactured goods.
 It promotes innovation and creativity and ensures ease of doing
business.
  It facilitates the transfer of technology in the form of foreign direct investment, joint
ventures and licensing.
Intellectual Property helps in balancing between the innovator’s interests and public interest,
provide an environment where innovation, creativity and invention can flourish and benefit all.

India and IPR

 India is a member of the World Trade Organisation and committed to the Agreement on Trade
Related Aspects of Intellectual Property (TRIPS Agreement).
 India is also a member of World Intellectual Property Organization, a body responsible for the
promotion of the protection of intellectual property rights throughout the world.

Kinds of intellectual Property

There are many different forms of rights that together make up intellectual property.
Trademark
It is a specific sign used to make the source of goods and services public inrelation to goods and
services and to distinguish goods and services from other entities. This establishes a link
between the proprietor and the product. It portrays the nature and quality of a product. The
essential function of a trademark is to indicate the origin of the goods to which it is attachedor
in relation to which it is used. The trademark is also the objective symbol of goodwill that a
business has created.

Any sign or any combination thereof, capable of distinguishing the goods or services of another
undertaking, is capable of creating a trademark. It can be a combination of a name, word,
phrase, logo, symbol, design, image, shape, colour, personal name, letter, number,
figurative element and colour, as well as any combination representing a graph. Trademark
registration may be indefinitely renewable.
Geographical indication

It is a name or sign used on certain products which corresponds to a geographic location or origin
of the product, the use of geographical location may act as a certification that the product
possesses certain qualities as per the traditional method.
Darjeeling tea and basmati rice are a common example of geographical indication. Geographical
Indications are protected under the Geographical Indication of Goods (Registration andProtection)
Act, 1999.

Industrial design

It is one of the forms of IPR that protects the visual design of the object which is not
purely utilized. It consists of the creation of features of shape, configuration, pattern,
ornamentation or composition of lines or colours applied to any article in two or three-
dimensional form or combination of one or more features. Design protection deals with the
outer appearance of an article,including decoration, lines, colours, shape, texture and
materials.

Trade Secrets

Trade secrets are intellectual property (IP) rights on confidential

information which may be sold or licensed.
In general, to qualify as a trade secret, the information must be:

a. commercially valuable because it is secret,

b. be known only to a limited group of persons, and
c. be subject to reasonable steps taken by the rightful holder of the information to keep it
secret.

What kind of information is protected by trade secrets?

In general, any confidential business information which provides an enterprise a competitive edge
and is unknown to others may be protected as a trade secret. Trade secrets encompass both
technical information, such as information concerning manufacturing processes,
pharmaceutical test data, designs and drawings of computer programs, and commercial
information, such as distribution methods, list of suppliers and clients, and advertising strategies.

Other examples of information that may be protected by trade secrets include financial
information, formulas and recipes and source codes.
Copyright

What is a Copyright?
This form of Legal right is given to the creator, who has the ownership in literary,
musical or any other artistic work. This may be sound recordings, paintings, dramas,
musical or any artistic work.

Copyright law deals with the protection and exploitation of the expression of ideas in a tangible
form. To be protected as the copyright, the idea mustbe expressed in original form.
In India matters related to copyright are governed by the Copyright Act in 1957, which was
subsequently amended in the year 1994, 1999 and 2002.
TYPES OF RIGHTS

(A) Economic rights of the author: Economic rights allow right owners to derive financial
reward from the use of their works by others and

(B) Moral Rights of the author: Moral rights allow authors and creators to take certain
actions to preserve and protect their link with their work.

What rights does copyright grant to the rights holder?

A Copyright grants protection to the creator and his or her representatives for the works and
prevents such works from being copied or reproduced without their consent.

The creator of a work can prohibit or authorise anyone to:

 reproduce the work in any form, such as print, sound, video, etc.;
 use the work for a public performance, such as a play or a musical work;
 make copies/recordings of the work, such as via compact discs, cassettes, etc.;
 broadcast it in various forms;
 Translate the same to other languages.

Is it mandatory to register a work to claim Copyright?

No, it is not mandatory / necessary to register a work as a Copyright. The acquisition of Copyright
is automatic and it does not require any formality. However, certificate of registration of
Copyright serve as, prima facie, evidence in a court of law with reference to dispute relating to
ownership of Copyright.

Ownership copyright

Section 17 statutorily recognizes the author of the work to be the first owner of the
copyright. The author is defined under the Act for various works, which come under the
law of copyright.

Section 2(d) defines author, it says “Author” means, –

 (1) In relation to a literary or dramatic work, the author of the work

(2) In relation to a music work, the composer;

(3) In relation to artistic work other than a photograph, the artist;

(4) In relation to photograph, the person taking the photograph, the artist;

(5) In relation to a cinematograph film or sound recording, the producer; and

(6)In relation to any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created

TERM OF COPYRIGHT

The general rule is that copyright lasts for 60 years. It is counted-

From the death of the author

 Literary work
 Musical work
 Artistic work
 Dramatic work

From the date of publication

 Sound recordings
 Cinematography
 Photographs
PENALTY

Under civil and criminal law, a copyright holder can take several actions against an infringer.
These are given under Section 55 and 58 of the Copyright Act, 1957.

The minimum punishment for infringement of copyright is imprisonment for six months with the minimum
fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is
imprisonment for one year and fine of Rs. one lakh.

Civil Remedies for Copyright Infringement

The civil remedies for copyright infringement are covered under Section 55 of the Copyright
Act of 1957. The different civil remedies available are:

1) Interlocutory Injunctions

Interlocutory Injunctions are generally sought where there is a risk that a party to a dispute will
do something which will cause irreparable damage. The purpose of Interlocutory Injunctions is
 to protect an applicant from damage which he or she could not be adequately compensated for if
the defendant were to continue the action. Their purpose is to preserve identifiable legal or
equitable rights which may be enforced if theapplicant is successful in a final judgment Injury.

2) Pecuniary Remedies

Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the
Copyright Act of 1957. First, an account of profits which lets the owner seek the sum of money
made equal to the profit made through unlawful conduct. Second, compensatory damages which
let the copyright owner seek the damages he suffered due to the infringement. Third, conversion
damages which are assessed according to the value of the article.

3) Anton Pillar Orders

The Anton pillar order gets its name from the holding in Anton Pillar AG V. Manufacturing
Processes. The following elements are present in an Anton Pillar Order – First, an injunction
restraining the defendant from destroying or infringing goods. Second, an order permitting the
plaintiff’s lawyer to search the defendant’s premises and take goods in their safe custody. Third,
an order that the defendant be directed to disclose the names and addresses of suppliers and
consumers.

4) Mareva Injunction

The Mareva injunction comes into play when the court believes that the defendant is trying to
delay or obstruct the execution of any decree (an official order that has the force of law) being
passed against him. The court has the power to direct him to place whole or any part of his
property under the court’s disposal as may be sufficient to satisfy the decree. This is provided in
Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.

5) Norwich Pharmacal Order

The Norwich Pharmacal Order is usually passed when information needs to bediscovered from a
third party.
Patent
Patent law recognizes the exclusive right of a patent holder to derive commercial benefits from his
invention. A patent is a special right grantedto the owner of an invention: to the manufacture,
use, and markets the invention, provided that the invention meets certain conditions laid down
in law. Exclusive right means that no person can manufacture, use, or market an invention
without the consent of the patent holder. This exclusive right to patent is for a limited time
only.

Indian Patent Act came into force on April 20, 1972. This Act was further amended in 1999 and the
Patents (Amendment) Act, 1999 got assent of the President on March 26, 1999. India joined the
World Trade Organization (WTO) in 1995 and automatically became a signatory of the Agreement
on Trade- Related Aspects of International Property Rights (TRIPS) in 1995. From
January 1, 2005 the Patents (Amendment) Act 2005 has been given effect.

Objectives behind granting Patent

• To encourage scientific research, new technology and industrial progress.

• Accelerate the technological and industrial development of the country.
• To induce an inventor to disclose his discoveries instead of keeping them as a trade secret.
• To offer a reward for the expenses of developing inventions to the stage at which they are
commercially practicable.
• To provide inducement to invest capital in new lines of production.
 For an invention to be patentable it should meet the following criteria –

i) Novelty i.e. some part of it has a new development and has not been published in India or elsewhere before
the date of filing of patent application in India.
ii) Inventive Step: If someone who was skilled in that particular field would consider the invention to be an
unexpected or surprising development on the invention date. This means that the invention must not be
obvious(i.e not to be easily discovered ,understood,seen) to a person skilled in the same field which the
invention relates to. It must be inventive and not obvious to a person skilled in the same field.
iii) Industrial Applicability: Invention should be useful, such that it can be used in an industry. Industrial
applicability is defined under Section 2(ac) of the Patents Act as "the invention is capable of being made or
used in an industry". This essentially means that the invention cannot exist in abstract. It must be capable of
being applied in any industry, which means that the invention must have practical utility in order to be
patentable.
Procedure of Patent Registration
Patent Documents can be filed either through online or at the patent office in respective jurisdiction: Kolkata,
Delhi, Mumbai, and Chennai.

 Patentability Search

 Drafting The Patent Application

 Patent Filing Application

 Publication Of Application

 Examination Of The Application

 Objection By The Examiner

 Office Action Response

 Grant Of Patent Registration

Patent infringement

Patent infringement is an unauthorized act of selling, manufacturing, offering to sell, importing or

using in-force patented invention without the permission of a patented owner.
TYPES OF INFRINGEMENT

There are two types of infringements as mentioned below:

Direct infringement - occurs when a product is substantially close to any patented product or in a case
where the marketing or commercial use of the invention is carried out without the permission of the
owner of the invention.

Indirect infringement - occurs when some amount of deceit or accidental infringement happens without
any intension of infringement.

INFRINGEMENT ACTION

Whenever there is a case where monopoly rights of the patentee are violated, the rights of the patentee are
secured by the Act through judicial intervention. The patentee has to institute a suit for infringement. The
reliefs which may be availed in such a suit are:

1. Interlocutory/ interim injunction

2. Damages or account of profits

3. Permanent injunction