I.P Rights: Broad overview

Intellectual property (IP) is a term referring to a brand, invention, design, or other kinds of creation, which a person or business has legal right over. Intellectual Property Rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period[1]Almost all businesses own some form of IP, which could be a business asset such as trade name, brand, logo, advertisements, inventions, designs, products, or a website[2].

Department for Promotion of Industry and Internal Trade is responsible for intellectual property rights relating to Patents, Designs, Trademarks, and Geographical Indication of goods and oversees the initiative relating to their promotion and protection.

In India, intellectual property rights recognised under the statute are:

• The Patents Act, 1970;
• The Trade Marks Act, 1999;
• The Copyright Act, 1957;
• The Designs Act, 2000;
• The Geographical Indications of Goods (Registration & Protection) Act, 1999;
• The Semiconductor Integrated Circuits Layout Design Act, 2000;
• The Biological Diversity Act, 2002;
• The Protection of Plant Varieties and Farmers' Rights Act, 2001.

Types of Intellectual Property Rights

Intellectual property rights are customarily divided into five main areas:

(i) Copyrights and rights related to copyright.

The rights of the author of literary and artistic works ( such as books and other writings,

musical compositions, paintings, sculptures, and films) are protected by copyright, for a

the minimum period of 50 years after the death of the author[3]. Also protected through copyright

and related (sometimes referred to as "neighboring") rights are the rights of

performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings)

and broadcasting organisations The main social purpose of copyright and related rights is to

encourage and reward creative work.[4] Registering a copyright is not necessary in most cases to

maintain a copyright infringement claim. All IPR is now administered by the Department for

Industrial Property and Promotion (DIPP).

(ii) Patents

A patent is a statutory right for an invention granted for a limited period (20 years) to the

patentee[5] by the government, in exchange for full disclosure of his invention for excluding

others, from making, using, selling, importing the patented products or process for producing

that product for those purposes without his/her consent.[6] The regulatory authority for patents is

the Patent Registrar under the office of the Controller General of Patents, Designs, and Trade

Marks, which is part of India’s Ministry of Commerce and Industry. Patents are valid for 20

years from the date of applying, subject to an annual renewal fee. In India's' first to

file' principle is followed – that is, if two people apply for a patent on an identical invention, the

first one to file the application will be awarded the patent.

(iii) Designs

Design means only the features of shape, configuration, pattern, ornament or composition of

lines or colours applied to any article whether in two dimensional or three dimensional or in

both forms, by any industrial process or means, whether manual mechanical or chemical

separate or combined which in the finished article appeal to and are judged solely by the

eye.[7] However, functionality aspects of a design are not protected under The Designs Act, 2000.

Designs are valid for a maximum of 10 years renewable for a further five years. The social

the purpose is to protect the results of investment in the development of new

technology, thus giving the incentive and means to finance research and development activities.

(iv) Trademarks

Trademark means a mark capable of being represented graphically and which is capable of

distinguishing the goods or services of one person from those of others and may include the

shape of goods, their packaging, and combination of colour.[8]

The definition provided by The Trademarks Act, 1999 also includes non-conventional marks

like colour marks, sound marks, etc. According to this act, “mark” includes a device, brand,

heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or

combination of colour or any combination thereof.[9]

With the advent of modern technology particularly that relating to cyberspace, domain names or

Internet sites are entitled to protection as a trademark because they are more than a mere

address. The rendering of Internet services is also entitled to protection in the same way as

goods and services are, and trademark law applies to activities on the Internet.[10]

The regulatory authority for patents is the Controller General of Patents, Designs, and Trade

Marks under the Department of Industrial Policy and Promotion.[11]Registration takes up to two

years. A trademark in India is valid for ten years and can be renewed thereafter indefinitely for

further ten-year periods.

The protection of such distinctive signs aims to stimulate and ensure fair competition and to

protect consumers, by enabling them to make informed choices between various goods and

services. The protection may last indefinitely, provided they sign in question continues to be

distinctive.[12]

(v) Trade secrets

Broadly speaking, any confidential business information which provides an enterprise with a

competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or

industrial secrets and commercial secrets. The unauthorised use of such information by persons

other than the holder is regarded as an unfair practice and a violation of the trade secret.

The subject matter of trade secrets is usually defined in broad terms and includes sales methods,

distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and

manufacturing processes. While a final determination of what information constitutes a trade

secret will depend on the circumstances of each case, clearly unfair practices in

respect of secret information include industrial or commercial espionage, breach of contract and

breach of confidence.[13] Trade secrets and Patent are the only two forms of intellectual property

rights that protect information.

All these types of intellectual properties can be either registered or unregistered.

With registered IP, one will have to apply to an authority, such as the Copyright Offices[14], to have one's rights recognised. If one does not do this, others are free to exploit one's creations. Registered forms of IP include patents, registered trademarks, and registered design rights. Copyright is also registrable.

With unregistered IP, one automatically has legal rights over one's creation. Unregistered forms of IP include copyright, unregistered design rights, common law trademarks and database rights, confidential information, and trade secrets.[15]

While the basic social objectives of intellectual property protection areas outlined above, it should also be noted that the exclusive rights given are generally subject to several limitations and exceptions, aimed at fine-tuning the balance that has to be found between the legitimate interests of right holders and of users.[16]

{Abhyudey Kabra, a law student at Maharaja Agrasen Institute of Management Studies, IP University.}

REFERENCES

[2] Indian judiciary has extended the protection of trademarks law to Domain name as held in the case of “Tata sons

Ltd. v. Manu Kosuri & Ors 90 (2001) DLT 659” and “ Yahoo Inc. v. Akash Arora (1999) PTC 201”.

[3] Section 14, Copyright Act, 1957.

[4] World Trade Organisation (WTO), ‘what are iprs’,Trade topics.

[5] Section 2(p), Patents Act, 1970

‘Patentee means the person for the time being entered on the register as the grantee or proprietor of the patent’.

[6] Office of CGPDTM , general information( 2019), FAQ Q1.

[7] Section 2(d) , The Designs Act, 2000.

[8] Section 2(zb), The Trade Marks Act, 1999.

[9] Section 2(m), The trademarks act, 1999.

[10] Tata Sons Limited vs Mr. Manu Kishori & Ors. on 9 March 2001 PTC 432 (Del).

[11] Department for promotion of Industry and internal trade(DPIIT), attached subordinate offices.

[12] World Trade Organisation (WTO), ‘what are iprs’,Trade topics.

[13] World Intellectual Property Organisation (WIPO),‘what is a trade secret’.

[14] Section 9, The Copyright Act, 1957 requires for the establishment of an office to be called the Copyright Office for the Act.

[15] Intellectual Property Rights in India, Investors in People, (published April 2017).

[16] World Trade Organisation (WTO), ‘what are iprs’,Trade topics.