South Asian Journal of Marketing & Management Research

ISSN: 2249-877X Vol. 11, Issue 11, November 2021, SJIF 2021= 7.642
A peer reviewed Journal

A REVIEW ON INTELLECTUAL PROPERTY IN INDIA

B. R. Maurya*
*Department of Law,
Teerthanker Mahaveer University, Moradabad, Uttar Pradesh, India
Email id: [email protected]
DOI: 10.5958/2249-877X.2021.00121.1
ABSTRACT

Intellectual property rights (IPR) are intangible in nature and provide an inventor or creator
with exclusive rights to their valued innovation or work. IPR is a focus point in global trade
practices and lifestyle throughout the globe in the current globalisation situation. These rights
encourage innovation by providing recognition and financial rewards to creators or inventors,
while a lack of IPR knowledge and poor execution may stymie the nation's economic,
technological, and social progress. As a result, every country must prioritize the spread of IPR
information and its proper application. The current article discusses different IPR terminology
such as patents, trademarks, industrial designs, geographic indications, copyright, and so on, as
well as its associated laws, regulations, and importance and function in the Indian context. In
addition, the status of India's involvement in IPR-related activities across the globe was briefly
addressed.

KEYWORDS: Intellectual Property Rights, WIPO, Patents, Trademarks, Industrial Designs,

Geographic Indications.
1. INTRODUCTION
In the wake of globalization, it is critical to stay ahead of the curve in terms of innovation and
creativity in order to compete in the technological and commerce markets. India is well-known
for its intellectual prowess(1) in software engineering, missile technology, lunar or Jupiter
missions, and other technical disciplines. In terms of registered patents, industrial designs,
trademarks, and other IPR assets, India, on the other hand, lags behind(2). According to a recent
study by the US Chamber of Commerce, India ranked 29th out of 30 nations in the global IP
index. It is a highly concerning situation for policymakers as well as the country as a whole(3).
Any society's growth is inextricably linked to intellectual property rights and the policies that
govern them.Inventions died; there was a high danger of infringement, economic loss, and the
end of an intellectual age in the nation due to a lack of IPR knowledge(4). As a result, there is
an urgent need for IPR information to be disseminated in order to promote local innovations and
technological advances(5).Various intellectual property rights are highlighted in the preceding
part of this article(6).In the context of India, with their associated laws, regulations, and needs,
as well as their function in society.
1.1 Intellectual Property Rights and their Classification:
The phrase "intellectual property"(7) refers to the use of the human brain for innovation and
creativity. To develop or produce anything new, many efforts in terms of people, time, energy,

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 South Asian Journal of Marketing & Management Research
ISSN: 2249-877X Vol. 11, Issue 11, November 2021, SJIF 2021= 7.642
A peer reviewed Journal

expertise, money, and so on are needed. The final idea that led to the innovation or creation is
an intangible property of the individual who put out the effort to make it happen. As a result,
legal rights or monopoly rights are granted to the inventor or innovator by law in order for them
to reap the economic advantages of their innovation or production. Similar to physical property,
intellectual property rights (IPR) (8)are territorial rights that allow an owner to sell, acquire, or
lease his Intellectual Property (IP). To receive benefits, one must register IPR with a legal body
in a presentable or tangible form. Each kind of IPR grants a unique set of rights to the innovator
or creator in order to maintain and reap economic advantages, which in turn encourages talent
and social advancements.
Intellectual property rights are classified(9) as follows based on the type of invention and
creation of the human mind and their applications: I patents, ii) trademarks, iii) industrial
designs, iv) layout design of semiconductor integrated circuit, v) geographic indications of
source, vi) copyright and related rights (literary and artistic works, musical work, artistic works,
photographic work, motion pictures, computer programmers and performing arts and
broadcasting work).
1.2 WIPO:
The Globe Intellectual Property Organization (WIPO)(10) was founded in Stockholm in 1967 to
defend intellectual property rights throughout the world. 8, 16 Later, in 1974, it becomes a
United Nations agency. WIPO creates frameworks and regulates different IPR regulations
throughout the world. WIPO's primary goal is to promote economic, social, and cultural growth
while preserving biodiversity and traditional knowledge via a balanced and effective
international IP system. In addition, it is responsible for harmonising disparities across
countries, particularly between rich and developing countries, by modifying international
regulations so that each of them has an equal chance in the growing globe.
1.1.1 Patent
Patent(11) is an intellectual property right granted to invent or by concerned government office
for his novel technical invention. The term invention means solution of any problem in terms of
development of a product or a process. Among the different types of IPR, patents are considered
the most valuable and rightly so. The patentability of any invention needs to fulfil following
criteria:
 Usefulness: Invention must have industrial applicability or applied for practical purpose.
 Novelty: invention must be new technology which has not been published or available in
prior art of the country or elsewhere in the world before the date of patent filing.
 Non obviousness: Invention which can be done by any ordinary skilled person is obvious
and cannot be patentable. Hence invention must not be obvious for patentability.
i. Industrial Design:
Industrial design (12) is the creative process of giving mass-produced goods or articles a
decorative or aesthetic look. Two-dimensional or three-dimensional shapes may be used to
convey the design. The United Kingdom's Design Act of 1949 defines design as a characteristic
of form, arrangement, pattern, or decoration(13). Industrial design encompasses the form,
surface, pattern, lines, color, and other appearance-related characteristics of industrial goods
such as watches, automobiles, mobile phones, laptop computers, various household appliances,
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 South Asian Journal of Marketing & Management Research
ISSN: 2249-877X Vol. 11, Issue 11, November 2021, SJIF 2021= 7.642
A peer reviewed Journal

buildings, textile patterns, and handicraft products(14). Apart from technical excellence and
other factors, the aesthetic worth of a thing, or how it appeals, is the most important
consideration in marketing(15).
An industrial design must be fresh or unique, and non-functional, in order to be protected under
most national laws(16). As a result, industrial design is primarily concerned with aesthetic
characteristics, and the design registration does not protect any technological features or aspects
of the object to which it is applied. Although, if the technological elements are unique, they may
be protected by a patent (17). In addition to this, design that is literary or creative in nature, such
as a cartoon, label, pamphlet, map, dressmaking pattern, and so on, is covered by copyrights
rather than industrial design.
Industrial design rights can last anywhere from 10 to 25 years depending on the country.
Industrial designs in India are protected for ten years under the Design Act of 2000. This period
may be extended for an additional five years(18).By fostering more visually appealing goods for
society, industrial design promotes innovation and skill development among individuals and the
manufacturing industry. The form and shape of a product not only creates an attractive look, but
it is also indirectly linked with ergonomics and plays a significant part in the comfort of
consumers in the case of machines, furniture, automobiles, and so on.
ii. Trademark:
In the ancient world, trademarks(19) were already in use. Around 3000 years ago, Indian
craftsmen used to carve their mark on their jewellery or creative creations. The trademark has
become a significant element in the contemporary world of international commerce as a result
of industrialization. A trade mark is a unique symbol or emblem that indicates that a certain
item is manufactured or supplied by a specific person, industry, or business(20). Service marks,
like trademarks, help to differentiate service providers from their rivals. A business may have
numerous kinds of trademarks for its varied goods, but trade names are used to differentiate
itself from other companies or enterprises(21).
Trademarks or trade names assist businesses in gaining consumer awareness, reputation, and
trust. In most instances, customers depend on trademarks since inspecting a product or service
rapidly to establish its quality is difficult. A certain section of consumers is extremely
concerned about the brand and will pay a premium for the brand's prestige, even if the quality is
equal, in order to stand out from the crowd(22).
To identify one company or service from another, a trademark/service mark consists of words
(name, surname, geographical name, slogan, etc.), letters and numbers, drawing, logo, symbol,
phrase, picture, design, or a combination of these components. Aside from these, there are a few
more ‗non-traditional' trademarks(23):
The fragrance of fresh cut grass for tennis balls, the odor of beer for dart flights, and the scent of
flowers for tyres have all been registered in the United Kingdom. In the United States, a fresh
floral smell evocative of Plumeria flowers was trademarked for sewing thread and embroidery
yarn. Sound Markings or Audible Signs: Sound Marks are distinct sound marks in the form of a
musical note that may be recorded. In 1950, the musical notes were successfully registered as a
trademark for NBC's radio broadcasting services. MGM has a registered sound trademark for
the lion's roar. In the ancient world, trademarks were already in use(24). Around 3000 years
ago, Indian craftsmen used to carve their mark on their jewellery or creative creations. The

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 South Asian Journal of Marketing & Management Research
ISSN: 2249-877X Vol. 11, Issue 11, November 2021, SJIF 2021= 7.642
A peer reviewed Journal

trademark has become a significant element in the contemporary world of international

commerce as a result of industrialization. A trade mark is a unique symbol or emblem that
indicates that a certain item is manufactured or supplied by a specific person, industry, or
business. Service marks, like trademarks, help to differentiate service providers from their
rivals. A business may have numerous kinds of trademarks for its varied goods, but trade names
are used to differentiate itself from other companies or enterprises.
2. DISCUSSION
Trademarks or trade names assist businesses in gaining consumer awareness, reputation, and
trust. In most instances, customers depend on trademarks since inspecting a product or service
rapidly to establish its quality is difficult. A certain section of consumers is extremely
concerned about the brand and will pay a premium for the brand's prestige, even if the quality is
equal, in order to stand out from the crowd.
To identify one company or service from another, a trademark/service mark consists of words
(name, surname, geographical name, slogan, etc. ), letters and numbers, drawing, logo, symbol,
phrase, picture, design, or a combination of these components. Aside from these, there are a few
more ‗non-traditional' trademarks9:
The fragrance of fresh cut grass for tennis balls, the odor of beer for dart flights, and the scent of
flowers for tyres have all been registered in the United Kingdom. In the United States, a fresh
floral smell evocative of Plumeria flowers was trademarked for sewing thread and embroidery
yarn. Sound Markings or Audible Signs: Sound Marks are distinct sound marks in the form of a
musical note that may be recorded. In 1950, the musical notes were successfully registered as a
trademark for NBC's radio broadcasting services. MGM has a registered sound trademark for
the lion's roar. Important Criteria of Trademark Registration. As per UK Trademarks Act, 1994,
the three main requirements for registering trade mark areas follows:
 The trademark should be asignor anything that can convey information.
 The sign should be capable of distinguishing products or services of one undertaking from
that of another. This is clearly a requirement of distinctiveness of trademarks.
 The trade mark is capable of graphical representation to provide precise identification in the
trade mark registry.
Broadly Followed Rules of Trademark Registration
 The word ―apple‖ or an apple device cannot be registered for apple as in this case it is not
distinguish able. But it is registered being highly distinctive in case of computers.
 Similarly Camel trade mark is registered for cigarettes. The generic term like ―furniture‖
cannot be registered as trade mark for chair, table, orsimilarty peofitems.
 In case of use of letters or numerals, in certain countries registration is allowed only when at
least few numbers of letters and/ or numerals are combined or in case of letters the
combination of word is pronounceable.
 Similarly, common surnames are not registered in some countries as they are not distinctive
in nature.
 Beside these, deceptive sign or trade mark which is misleading or violates the public order

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 South Asian Journal of Marketing & Management Research
ISSN: 2249-877X Vol. 11, Issue 11, November 2021, SJIF 2021= 7.642
A peer reviewed Journal

or morality is not qualified for registration.

 The signs which are reserved for state, public institution, organization or international body
cannot be registered as trademark.
Indian Trademarks Act
Any unique mark capable of distinguishing products and services of one enterprise from those
of another and capable of being graphically depicted may be trademarks, according to the
Indian trademarks legislation(25).There is no need to restrict the validity of trademarks since
they do not provide exclusive rights that may be utilized. However, without a temporal
restriction, trademark validity would result in an excessive quantity of registered trademarks
with no use. 11 The original period of trademark registration in India is ten years, after which it
must be renewed on a regular basis.
2.1 Geographical Indications
Using geographical or locality origin to identify goods for commercial reasons is not
uncommon. WIPO coined the term Geographical Indication (GI)(26) to encompass all existing
means of protecting such names and symbols, regardless of whether they indicate that a
product's qualities are due to its geographical origin (such as appellations of origin) or simply
indicate that a product's qualities are due to its geographical origin (such as indication of
source).
Champagne, Havana, Darjeeling tea, Arabian horses, Alphanso mango, Nagpur orange,
Basmati, and other well-known names for products of exceptional quality and recognized as GI
include Champagne, Havana, Darjeeling tea, Arabian horses, Alphanso mango, Nagpur orange,
Basmati, and other well-known names for products of exceptional quality and recognized as GI
include Champagne, Havana, Darjeeling tea, Dar.
Creators of that ability from a certain region or location with the best atmosphere A tribe or
region passes the ability down down the generations with considerable care and compromise.
Dhaka muslin, Venetian glass, China silk, Mysore silk, Chanderi sari, Kanchipuram silk saree,
Kullu shawls, Solapur chaddar, Solapur Terry Towel, Kashmiri handicrafts, and other well-
known examples of Geographical indicators for state-of-the-art workmanship include
3. CONCLUSION
Intellectual property rights are critical for progressive social development in a knowledge-based
economy. IPR is a fundamental need for participating in local and worldwide competitive
commerce, since it is difficult to create a creative environment without disseminating and
implementing IPR information. It is critical for policymakers to include intellectual property
rights into the fundamental educational system and to encourage inventors and creators to
register their inventions. In terms of accessible raw materials, low-cost labor, and inventive and
creative committed people, India has it all. Without a doubt, India and other developing nations
will explore Intellectual Property Rights in order to increase their proportional part of global
commerce.
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A peer reviewed Journal

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