INTELLECTUAL PROPERTY LAW INTRODUCTION: What is Intellectual Property Rights (IPR)?

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 of time to inventions, literary and artistic works, and symbols, names, images, and Designs used in commerce Anything made by human intervention requires intellectual efforts and all human made Things are a result of intellectual creations. However individual persons do not own most of These creations or organizations but human race as a whole is the collective owner of these Creations. Some specific creations made by individuals / organizations are owned by them Subject to the conditions laid down by certain laws for recognizing and rewarding the intellectual Activity of the creator. Intellectual property refers to such creations. These include Inventions, Symbols, names, images; literary and artistic work. Why worry about IP? IP provides a proprietary right in intangible products of the human mind, which are also Known as knowledge goods or creations. IP is ownership of property that is distinct from real estate or personal property as These are products of human intellect or mind. Though ownership is similar, the kind of Goods are different: tangible and intangible goods Intellectual Property Rights are the legal rights which result from intellectual activity in the Industrial, scientific, literary and artistic fields. These are time limited right. What is IP Management? In todays knowledge economy, intellectual assets (such as technological information) are economic assets that must be effectively managed in order to unlock their commercial potential for the sustained growth of technology-related business. Legally protected intellectual assets, including intellectual property (IP), are essential for business success. In order to achieve their growth plans, businesses should have a strong IP portfolio. An effective IP management regime would have in-built incentive for cientists/innovators to engage in knowledge creation. This would lead to greater professional recognition for them. Why IPR came into picture? It is one of the components of GATT conditions which is to be implemented by all the Member countries of the GATT. India is also a member of GATT and it is an obligation for India To honor and implement the IPR components.

What is covered under IPR\ IPR TOOLKIT? Broadly, intellectual property is divided into two categories: industrial property and copyright. Industrial property includes patents, trademarks, industrial designs and geographic indications while copyright include creative works like novels, poems, plays, films, musical works, computer software and artistic works. 1. Patents, 2. Plant Variety Protection (PVP) 3. Geographical Indications 4. Traditional Knowledge 5. Copy Rights 6. Trade Marks 7. Trade Secrets 8. Industrial Designs 1. PATENT: A Patent is an exclusive monopoly granted by the Government to an inventor over his Invention for limited period of time. Patents protect inventions and improvements to existing Inventions. An inventor or any other person/company assigned by the inventor can obtain the patent Over his invention. A patent is obtained by the inventor or his assignee by filing an application. With the patent office in the stipulated forms as required by the Patent act of that country. A patent is granted only on that invention, which is new (Novelty), non-obvious and has Industrial applicability (Utility). A patent can expire in the following ways: The patent has lived its full term i.e. the term specified by the patent act of the country. Generally it is 20 years from the date of filing. I.The patentee has failed to pay the renewal fee. A patent once granted by the Government has To be maintained by paying annual renewal fee. II.The validity of the patent has been successfully challenged by an opponent by filing an Opposition either with the patent office or with the courts.

Plant Variety Protection: The plant variety protection was started in the year 1952 and the PVP Act of 1970 Plant variety rights also known as Plant breeders rights are Intellectual Property Rights granted to the breeder of a new variety of plant (or to another person or entity that can claim title in the new plant variety by, for example, agreement with the breeder or inheritance from a deceased breeder. These laws typically grant the plant breeder control of the propagating material (Including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, Fruit, foliage) of a new variety for a number of years. With these rights, the breeder can choose to become the exclusive marketer of the Variety, or to license the variety to others. Breeders can bring suit to enforce their rights and can recover damages for infringement. Plant breeders rights contain exemptions infringement, that are not recognized under patent law.

The PVP gives breeders up to 25 years of exclusive control over new, distinct, uniform, and stable sexually reproduced or tuber propagated plant varieties. Trade Mark Trademark means any mark used represent or identify a product or its maker. In a Market economy trademarks are most important because it is the biggest assets of a Company that really sells the products. A Trademark can be generally defined as a sign or mark that individualizes and distinguishes the goods of a given enterprise from the goods of other enterprises. Definition of trademark: A distinctive name, symbol, motto, or design that legally identifies a company or its products and services, and sometimes prevents others from using identical or similar marks.

Industrial Design Design means any features of shape, configuration, pattern, ornament or composition Of lines or colures, industrially applied to an article or to a part, that gives aesthetic value to such article. Designs Act, 2000 deals with protection of industrial design in India. This Page gives information as to Indian Law on Designs and has full texts of Legislations, Cases and International Conventions . What is a Design: Design can be described as the totality of the ornamental or aesthetic aspects of a useful article. Manufactures of diverse products such as shoes, clothing, Consumer appliances, automobiles, furniture and computer software invest billions of dollars to develop industrial designs to make their products more attractive to consumers Geographical Indications Geographical indication is an indication that identifies a good as originating in a territory where a given quality, reputation or other characteristic of the good is essentially attributable to
its geographical origin. The Geographical indications include the land related. It does not contain any time limit.

Copyright Copyright is a bundle of exclusive rights granted by statute to the author of the works to exploit or authorize the exploitation of the copyright work, based on international norms like Berne Convention, Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and WIPO Copyright Treaty (WCT). The copyright works in which rights subsist are original Literary, dramatic, musical and artistic works, and cinematography films and sounds recording. This page gives information as to Indian Law on Copyright and has full texts of Legislations, Cases and International Conventions. Trade Secret Trade secret is a formula pattern, physical device, idea, process, compilation of information or other information that provides the owner of the information with a competitive advantage in the marketplace, and is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it. The law relating to Trade Secrets/Confidential Information/Commercial Secrecy is not well develop0ed in India. There is no legislation regulating this area of law. India follows common law approach of protection based on the case laws. However, there is No decision of the Honorable Supreme Court laying down the law. The decisions of the High Court involving the issues of Trade Secret were decided based on the Copyright/ Design
protection laws also.

Cyber Law
Introduction: Cyber law is a new phenomenon having emerged much after the onset of Internet. Internet grew in a completely unplanned and unregulated manner. Even the inventors of Internet could not have really anticipated the scope and far reaching consequences of cyberspace. The growth rate of cyberspace has been enormous. Internet is growing rapidly and with the population of Internet doubling roughly every 100 days, Cyberspace is becoming the new preferred environment of the world. With the spontaneous and almost phenomenal growth of cyberspace, new and ticklish issues relating to various legal aspects of cyberspace began cropping up. In response to the absolutely complex and newly emerging legal issues relating to cyberspace, CYBERLAW or the law of Internet came into being. The growth of Cyberspace has resulted in the development of a new and highly specialized branch of law called CYBERLAWS- LAWS OF THE INTERNET AND THE WORLD WIDE WEB. There is no one exhaustive definition of the term "Cyberlaw". However, simply put, Cyberlaw is a term which refers to all the legal and regulatory aspects of Internet and the World Wide Web. Anything concerned with or related to, or emanating from, any legal aspects or issues concerning any activity of netizens and others, in Cyberspace comes within the ambit of Cyber law. In Simple way we can say that cyber crime is unlawful acts wherein the computer is either a tool or a target or both Cyber crimes can involve criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which are subject to the Indian Penal Code. The abuse of computers has also given birth to a gamut of new age crimes that are addressed by the Information Technology Act, 2000. We can categorize Cyber crimes in two ways:-The Computer as a Target:- using a computer to attack other computers. e.g. Hacking, Virus/Worm attacks, DOS attack etc. The computer as a weapon:- using a computer to commit real world crimes. e.g. Cyber Terrorism, IPR violations, Credit card frauds, EFT frauds, Pornography etc. Cyber Crime regulated by Cyber Laws or Internet Laws. TechnicalAspects: Technological advancements have created new possibilities for criminal activity, in particular the criminal misuse of information technologies such as A. Unauthorized access & Hacking:Access means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network. Unauthorized access would therefore mean any kind of access without the permission of either the rightful owner or the person in charge of a computer, computer system or computer network.

Every act committed towards breaking into a computer and/or network is hacking. Hackers write or use ready-made computer programs to attack the target computer. They possess the desire to destruct and they get the kick out of such destruction. Some hackers hack for personal monetary gains, such as to stealing the credit card information, transferring money from various bank accounts to their own account followed by withdrawal of money. By hacking web server taking control on another persons website called as web hijacking B. Trojan Attack:The program that act like something useful but do the things that are quiet damping . The programs of this kind are called as Trojans. The name Trojan Horse is popular. Trojans come in two parts, a Client part and a Server part. When the victim (unknowingly) runs the server on its machine, the attacker will then use the Client to connect to the Server and start using the trojan. TCP/IP protocol is the usual protocol type used for communications, but some functions of the trojans use the UDP protocol as well. C. Virus and Worm attack:A program that has capability to infect other programs and make copies of itself and spread into other programs is called virus. Programs that multiply like viruses but spread from computer to computer are called as worms. D. E-mail & IRC related crimes:1. Email spoofing: Email spoofing refers to email that appears to have been originated from one source when it was actually sent from another source. Please Read 2. Email Spamming: Email "spamming" refers to sending email to thousands and thousands of users - similar to a chain letter. 3. Sending malicious codes through email:E-mails are used to send viruses, Trojans etc through emails as an attachment or by sending a link of website which on visiting downloads malicious code. 4. Email bombing: E-mail "bombing" is characterized by abusers repeatedly sending an identical email message to a particular address. 5. Sending threatening emails 6. Defamatory emails 7. Email frauds 8. IRC related Three main ways to attack IRC are: attacks, clone attacks, and flood attacks. E. Denial of Service attacks:Flooding a computer resource with more requests than it can handle. This causes the resource to crash thereby denying access of service to authorized users.

What is Trademark? "Trade mark" 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 a word, phrase, symbol or design, or combination of words, phrases, symbols or designs.

Trademark registration can be done for the following: ny word, title, symbol, heading, label, name, signature, numeral or any combination thereof

Advantages of Trademark Registration 1. Protects your hard earned goodwill in the business 2. Protects your Name / Brand Name from being used in a same or similar fashion, by any other business firm, thus discourages others from cashing on your well built goodwill 3. Gives your products a status of .Branded Goods. 4. Gives an impression to your customers that the company is selling some standard Products or Services 5. The exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered. 6. To obtain relief in respect of infringement (misuse by others) of the trade mark. 7. Power to assign (transfer) the trade mark to others for consideration.

Procedure/Steps for Trademark Registration: 1. Filing of an application for registration by a person claiming to be the proprietor of a trademark, in the office of the Trade mark Registry, within the territorial limits of the place of business in India. 2. Examination of the application by the Registrar to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report is issued. 3. Publication of the application after or before acceptance of the application in the Trademark Journal. 4. After publication if any person gives notice of his opposition to the registration within three months which may be extended to the maximum of one month. 5. If the opposition has been decided in favour of the applicant of the registration of trademark, the Registrar shall register the Trademark. 6. On the registration of the Trademark the Registrar shall issue to the applicant a Trademark Registration Certificate.

Term/Duration of a Trademark in India The term of registration of trademark is 10 (Ten) years, but may be renewed subject to the payment of the prescribed fee, in accordance with the provisions of the Trademarks Act, 1999. An application for renewal of a trademark can be filed within six months from the expiry of the last registration of trademark.

Use of the .TM. and symbols Generally, one who has filed an application (pending registration) can use the TM (trademark) designation with the mark to alert the public of his exclusive claim. The claim may or may not be valid. The registration symbol, , may only be used when the mark is registered.

Copyright Registration in India

Indias copyright law is laid down in THE INDIAN COPYRIGHT ACT, 1957 as amended by Copyright (Amendment) Act, 1999 and INDIAN COPYRIGHT RULES, 1958. Copyright means the exclusive right to do & authorise to do certain acts in relation to artistic, literary, dramatic, musical works, cinematographic film, sound recording and software. In essence, Copyright means the right to copy or reproduce the work in which Copyright subsist.

The Copyright vests in original work in whatever form it may be, i. e. literary, artistic, etc. The registration of Copyright in India is not mandatory but useful in courts where civil and / or criminal proceeding are initiated to protect a copyright from infringement and obtain other legal recourse available to the owner of copyright.

What Copyright protects

Copyright is that area of intellectual property law that governs the creation and attendant rights thereto. The copyright Act grants protection to all categories of copyrightable work including Literary Work, Dramatic Work, Musical Work, Artistic Work, Cinematograph Film, Photograph, painting, portrait, Work made in the course of employment, Lectures delivered in public, Government Work, Work made on behalf of a public undertaking, Work of certain international organization, Question papers of an examination, Collective work, Plan

Registration of Copyright

Under section 45 of the of The Copyright Act, 1957, the author or the publisher of, or the owner of or other person interested in the copyright in, any work may make an application in the prescribed form accompanied by the prescribed fee to the registrar of copyrights for entering particulars of the work in the Register of Copyrights The term of validity of Copyright registration for literary work,dramatic, musical ,artistic works is the life time of the Author and 60 YEARS after his death. The process of obtaining the certificate of copyright in India takes about 3-4 months.

TRADE SECRETS
Meaning Basics: Trade = Competitive Advantage + Potential to Generate Revenues Secret = Confidential Information Known to Few, All Pledged to Secrecy Confidential Information = Business or Technical Business = Financial, Commercial or Negative Technical = Scientific

Examples: Pricing Information, Customer Lists, Business methods, Strategic plans, Marketing plan Work product Ideas, Design, Drawing, Model, Specification, Surface data, Notes, Improvements.

Protection of Trade Secret Identification of Information as Trade Secret Determinants: Value of Information to Company Who Should Know Value and Access to Competitors (Ease to Copy, Duplicate etc.) Measures Taken

Precautions: Written Protection Policies Clarity, Quantum of Disclosure, Whom to Disclose. Information Security Controlled Online Transactions, Password Protection, USB Ports, Intranet, Anti Virus, Firewalls. Physical Security - Record Keeping, Docketing, Documentation, Marking, Paper Shredding, Logs, Visitors Passes, Clean Desk Policy. Human Resources - Entrance and Exit Interviews, Current Employees, Agreements, Periodic Training and Audits, Restrict Access Enforcement Watch Compliances, Prosecute Violators Agreements Non Disclosure Agreement, Confidentiality Agreements

Confidentiality Agreements Employer Employee Vendor Supplier Contractors, Sub Contractors Consultants Important Provisions Define Confidential Information Scope Clarify Exclusions Definite Obligations Time Limit Jurisdiction

Business Strategies 1. Patents and Trade Secrets Patents Registration Availability Longevity Public Disclosure Protection Enforcement Yes Time Consuming 20 Years Yes Exclusive Powerful Tool Trade secrets No Immediate No Limit No Limited Difficult Choice between Patents and Trade Secrets on basis of Legal and Business Perspective Keep Information initially as Secret If Patentable, disclose only what enables person skilled in art to practice the invention May keep confidential till Publication Date

2. Sale Transfer by way of sale of entire business Only Partial sale not possible

3. Licensing In combination with Patent and Software Licenses Clear, Explicit and Controlled

Understanding Trade Secrets in Food Industry After visiting hundreds of food establishments in India and in various parts of the world, it is clear to us that every business has some form of trade secret that plays an important role in the success and growth of the business.

Unfortunately only very few of the companies are aware of them because they are not sure what is good and what is not good because of lack of exposures and understanding of vital aspects of business. In other words, very often the situation is like penny-wise pound-foolish. Many managers and companies only become aware of their strengths and trade secrets when competitors attempt to acquire their recipes, formulations, client lists or marketing plans, or to talk to their employees and copy the way they do business. Only then does it become obvious that they have something valuable to protect. Food industry is taking time to understand that knowledge is power. Slowly, a growing number of successful enterprises realize that valuable information or knowledge is what gives them an edge on the competition. Original confidential information, knowledge and expertise provide a unique competitive quality that helps businesses to attract customers.

The biggest issue is that for many entrepreneurs in India, much valuable information appears trivial and therefore may not be sufficiently appreciated. Many enterprises are unaware that secret information is considered intellectual property in the commercial world frequently referred to as trade secrets and often protected by legislation. Keeping trade secret under wrap is a challenge. Companies also face a perpetual struggle between developing lasting relationships with customers, stakeholders and suppliers which entails revealing more and more about their products, processes and systems and the need to safeguard valuable trade secrets which are key to their continued success. Finding the right balance requires careful consideration.

How are Trade Secrets protected by food companies?

What do you think of recipes of Coca Cola, Pan Parag, Pepsi Cola, scented tobacco, perfumes, flavour recipes, etc.? Contrary to patents, trade secrets are protected without registration, that is, trade secrets are protected without any procedural formalities. Consequently, a trade secret can be protected for an unlimited period of time. For these reasons, the protection of trade secrets may appear to be particularly attractive for food industry. There are, however, some conditions for the information to be considered a trade secret. WTO agreement on TRIPS also recognises the concept of trade secret. Compliance with such conditions may turn out to be more difficult and costly than it would appear at first glance. While these conditions vary from country to country, some general standards exist which are referred to in Art. 39 of the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS Agreement):

The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).

It must have commercial value because it is a secret. It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements).

Example

If a food company develops a manufacturing process of its products that allows it to produce its goods in a more cost-effective manner with a specific taste and appearance, such a process provides the enterprise a competitive edge over its competitors. The enterprise in question may therefore value its know-how as a trade secret and would not want competitors to learn about it. It makes sure that only a limited number of people know the secret, and those who know it are made well aware that it is confidential. When dealing with third parties or licensing its know-how, the enterprise signs confidentiality

agreements to ensure that all parties know that the information is a secret. In such circumstances, the misappropriation of the information by a competitor or by any third party would be considered a violation of the enterprises trade secrets. To prove the point that it is a breach of confidential becomes challenging. Precautionary Measures to be taken by your Food Industry

Trade secrets are widely used by food industry including multinationals. In fact, many food companies rely almost exclusively on trade secrets for the protection of their IP (although in many cases they may not even be aware that trade secrets are legally protected). It is important, therefore, to make sure that food enterprises take all necessary measures to protect their trade secrets effectively. This includes:

Firstly, considering whether the secret is patentable and, if so, whether it would not be better protected by a patent.

Secondly, making sure that a limited number of people know the secret and that all those who do are well aware that it is confidential information. Thirdly, including confidentiality agreements within employees contracts. Under the law of many countries, however, employees owe confidentiality to their employer even without such agreements. The duty to maintain confidentiality on the employers secrets generally remains, at least for a certain period of time, even after the employee has left the employment.

Fourthly, signing confidentiality agreements with business partners whenever disclosing confidential information.

Which is better option Patents or Trade Secrets?

Trade secrets are essentially of two kinds. On the one hand, trade secrets may concern inventions or manufacturing processes that do not meet the patentability criteria. This could be the case of recipes, customers lists or manufacturing processes that are not sufficiently inventive to be granted a patent (though they may qualify for protection as a utility model under Patent Law). On the other hand, trade secrets may concern inventions that would fulfil the patentability criteria and could therefore be protected by patents. In the latter case, the food industry will face a choice: to patent the invention or to keep it as a trade secret. Some advantages of trade secrets include:

No time limit : Trade secret protection has the advantage of not being limited in time (patents last in general for up to 20 years). It may therefore continue indefinitely as long as the secret is not revealed to the public

No registration cost: Trade secrets involve no registration costs (though there may be high costs related to keeping the information confidential).

No waiting time: Trade secrets have immediate effect. No disclosures required: Trade secret protection does not require compliance with formalities such as disclosure of the information to a Government authority. There are, however, some concrete disadvantages of protecting confidential business information as a trade secret, especially when the information meets the criteria for patentability:

If the secret is embodied in an innovative product, others may be able to inspect it, dissect it and analyze it (i.e. reverse engineer it) and discover the secret and be thereafter entitled to use it. Trade secret protection of an invention in fact does not provide the exclusive right to exclude third parties from making commercial use of it. Only patents and utility models can provide this type of protection.

Once the secret is made public, anyone may have access to it and use it at will. A trade secret is more difficult to enforce than a patent. The level of protection granted to trade secrets varies significantly from country to country, but is generally considered weak, particularly when compared with the protection granted by a patent.

A trade secret may be patented by someone else who developed the relevant information by legitimate means.