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PEMP- GP-POM

Session 4.3
Intellectual Property Rights

M.S Ramaiah School of Advanced Studies - Bangalore

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Session Objectives
At the end of session students will be able to
understand
The fundamental characteristics of organizing,
Work specialization, chain of command, span of
management, and centralization versus decentralization
Role of human resource management and importance of
Strategic HRM

M.S Ramaiah School of Advanced Studies - Bangalore

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Session Objectives
Identify how structure can be used to achieve an
organizations strategic goals
Illustrate how organization structure can be designed
to fit environmental uncertainty
Identify elements of organisational behaviour which
affects individual/group performance
Need for organisations to plan for change
management
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Contents
Intellectual Property Rights
Patents
Designs
Copyrights Act
Trademarks Act
Geographical Indications

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Intellectual Property Right


Property: Works on the principle of exclusion
It allows the owner, enjoyment without interference
Owner can use it, gift it sell it or destroy it
Types of property: Moveable and Immovable property
Intellectual property is intangible
It can create useful and valuable things idea can be used to
create property.
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Intellectual Property Right

Intellectual property (IP) is a term referring to a


number of distinct types of creations of the mind for
which a set of exclusive rights are recognized and the
corresponding fields of law.

Owners are granted certain exclusive rights to a variety


of intangible assets

Ex: Musical, literary, and artistic works; discoveries and


inventions; and words, phrases, symbols, and designs.
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Intellectual Property Right


India is a signatory of TRIPs (Trade-Related aspects
of Intellectual Property rights) in the Uruguay Round
agreement of 1995
It is now bound to amend existing laws in order to
make it to make it TRIPs-compliant
The government has initiated action to bring in the
requisite changes.

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Intellectual Property Right


India has enacted fully TRIPs-compliant Trademarks
Act, Copyright Act, Designs Registration Act,
Geographical Indications Act and Protection of
Layouts for Integrated Circuits Act.
A Novel Plant Varieties Protection and Farmers
Rights Act 2001 and the Bio-diversity Act 2002 are
also in Place

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Intellectual Property Rights


Common types of intellectual property rights are:

Copyrights

Trademarks

Patents

Industrial design rights

Trade secrets in some jurisdictions

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For Most Products Every Form of

Intellectual Property Rights


Can be obtained
CAMERA

PATENT For every individual improved mechanism


DESIGN For outer shape & Contour / Configuration
TRADE MARK Brand name or Logo for goods denoted as
COPY RIGHT For Instruction / manual booklet denoted as
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For Most Products Every Form of

Intellectual Property Rights


Can be obtained
Industrial design
protection for 3D
shape

Brand nameregistered under


trademark

CD Player

Music played on the


CD player is protected
by copyright

Technical parts &


mechanisms can be
protected under
Patents
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For Most Products Every Form of

Intellectual Property Rights


Can be obtained

Pressure Cooker

PATENT For every individual improved mechanism


DESIGN For outer shape & Contour/Configuration
TRADE MARK Brand name or Logo for goods denoted as
COPY RIGHT For Instruction/Manual booklet denoted as
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Patents

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Patents

Inventions are subject matter of patents

The Patents Act, 1970: Deals with the patenting of


innovations

Patenting process:

A person applies to the controller of Patents

The Controller checks for claim with respect to novelty and


usefulness of ideas and other requirement of the Law

The person gets a patent right for certain period

Exclusive right to use invention


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Patent Grant Procedure


Filing of patent application
Early Publication

Publication after 18 months


Pre Grant Opposition /
Representation by any person

Request for examination


Examination: Grant or Refusal
Publication of Grant of patent
Post Grant Opposition to grant of patent
(Constitution of Opposition Board)
Decision By Controller
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Anatomy of a Patent
Title, Inventors, Assignees, Date of filing, Date of Publication,
Date of Grant, International Classification, National
Classification Application number, Patent Number; Abstract
Background of The Invention
Description of The Prior Art
Summary of The Invention
Brief Description of The Drawings
Detailed Description
Preferred Embodiments
Claims
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Organization Structure IP Offices


Ministry of Industry &
Commerce

Office of the Controller


General of Patents, Designs
And Trademarks

Designs wing
(Kolkata)

Patent office
( Kolkata, Delhi,
Mumbai,
Chennai)

Trade Marks
Registry
( Kolkata, Delhi,
Mumbai,
Ahmadabad
Chennai)

Geographical
Indications
Registry
( Chennai)

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Patent
Information
Service
( Nagpur)

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Patents

Patentee: A person in whose favour a patent is


granted

A patentee can use, sell to another person, or grant a


license to use the patent to others

Any use without license or authorisation from patentee


is an infringement

The patentee can move the court to restrain the


violator and claim damages
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Patents

What can be Patented?

An invention can be patented. For an idea to qualify as


an invention, it has to fulfill the requisites of:
1. Novelty or inventiveness
2. Non-obviousness
3. Usefulness

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Product V/s Process Patents

An invention can be either a process or of a product

Product: a watch, cycle, car, a television, or a new


antibiotic

Process: The process of making a chemical/medicine


can be an invention

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Product V/s Process Patents

Section 5 of Act, do not permit patents in case of


certain products
i.

Substances intended to use, or capable of being used, as food or


medicine or drug

ii.

Relating to substance prepared or produced by chemical processes

A person cannot apply for patents of substance, but


apply for the methods or process of manufacturing

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Options available to the IPR Holder


Exploit the IPR himself/herself
License the IPR to another party or Barter Rights
Cross License for mutually independent working and / or
collaborative working
Assign the IPR to another party (s) for an appropriate return
Establish a franchise system involving other parties
Take action against those who infringe his rights
Let the rights selectively lapse in certain countries
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Hello Kitty New Jewellery Collection by Kimora Lee


Simmons and Judith Leiber
Hello Kitty's parent company, Sanrio, signed a licensing deal with
powerhouses Judith Leiber and Kimora Lee Simmons to produce a
luxury accessory collection of the girls' icon

Calvin Klein Expands Bridge Business


Calvin Klein Inc. signed a licensing deal with an affiliate of Italian
manufacturer Fingen SpA to reintroduce CK Calvin Klein clothing line
and accessories in Europe and the Middle East starting next spring.
Source: fashiongates.com
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PLH Plans Worldwide Expansion of Porsche Design


German luxury automaker Porsche and its licensing
and trading company Porsche Lizenz- und
Handelsgesellschaft mbH & Co KG (PLH) intend to
push the worldwide expansion of the Porsche Design
brand and to introduce a new store concept along with
new licenses, including mens sportswear line
Expectations High for Beyonce`s Ready-to-Wear Line
International film and recording star, Beyonce Knowles,
entered into a joint venture with Arthur and Jason Rabin
to provide the infrastructure for licensing and brand
management to the new Beyonce fashion label
Source: fashiongates.com
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Patents
India is fully in compliance with its international obligations
under the TRIPs Agreement.
The Patents Act 1970 has undergone three amendments 1999,
2002 & 2005.
Amendment in 2005 has major implications on the following:
Introduction of product patent protection for food, pharmaceutical and
chemical inventions.
Examination The mail box applications, from January 01, 2005
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Patents
Under TRIPS, countries that did not have a product patent
regime in place as on January 1, 1995, had to provide for a
mailbox.
It is a mechanism for accepting patent applications till a product
patent regime was actually put in place.
Experts assume, therefore, that most of those patent requests are
for already known medicines that have been only slightly
modified.
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Patents Not Only For Major


Technological Breakthrough
Even for any small incremental inventions

LAZLO biros - ball point pen

Ring pull for cans of beverages

Individuals OR Companies-normally do not clearly recognize


the TRUE MARKET VALUE for a particular Invention

Anti theft device for motor cars-wheel clamp

Tetra pack style of cartons for milk & fruit juice

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Compulsory Licensing

Company could get a patent right in India and do not


produce or give license to anyone to produce in India

Result: India may have to import at high cost

Indias industrial development would be slowed down,


result in draining of the foreign exchange

Company could curtail availability, control price and


earn huge profits

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Compulsory Licensing

After three years, any person could make an


application for compulsory licensing, if the applicant
can establish that reasonable requirement of the
public have not been satisfied or the prices charges are
unreasonable.

Inventions deemed for Licenses to Right after three


years are: substances used as food/ medicines/ drug
and the manufacturing methods/ processes
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Designs

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Designs
The existing legislation on industrial designs in India is
contained in the New Designs Act, 2000
India had achieved a mature status in the field of industrial
designs
The present legislation is aligned in view of the changed
technical and commercial scenario and made to conform to
international trends in design administration.

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Designs
The protection is only for the appearance of the
article and not how it works

Electrical
JUG

Design registration is intended to protect designs


which have an industrial or commercial use.
Duration of protection is initially for 10 years and
extendable for another term of 5 years.
Designs of stamps, labels, tokens, cards, cartoons,
or parts of an article not sold separately, cannot be
registered.
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Copyrights

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Copyrights
India has a very strong and comprehensive copyright law Indian Copyright Act, 1957
Amended in 1981, 1984, 1992, 1994 and 1999
The amendment in 1994 were a response to technological
changes
Major Areas:
Communications (broadcasting and telecasting) and
The emergence of new technology (computer software)
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Copyrights
The Act list wide areas of expressions art, literature,
music, and film which can be copyrighted
The copyrighting is in favour of author/creator
The Act provides mechanism to registering work with the
government for extended protection
The Act prohibits the copying or reproduction of
copyrighted material
Unauthorized user can be prosecuted
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Copyrights
The 1999 amendments have made the Copyright Act fully
compatible with Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement. & fully reflects Berne
Convention
The amended law has provisions to protect performers
rights as envisaged in the Rome Convention
The Indian Copyright law is one of the most modern
copyright laws in the world
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Copyrights
Important requirement is that the work must be original
Without copyright protection, any one could copy anothers
work and become owner of the work
The copyright is not related to not ideas, but to their
expressions
Expressed in a tangible form
Expressed in sentences, paragraphs or a novel literary
work to be written or musical work recorded
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Copyrights
Author: is a person who creates the work and owns it
Employer: Have the ownership on a work produced by an
author under a contract of service or apprenticeship
A person who commissions another to take a photo, draw a
painting will be the owner
Musical work: composer is the owner
Film and sound recording: producer is the author

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Copyrights
Territorial limitations
A copyright arises in the following cases:
i.

The work is first published in India

ii.

The work is first published outside India, but the author is a citizen of
India

iii. In case of unpublished work, the author is, at the date of making work,
a citizen of India or domiciled in India
iv. In case of an architectural work of art, the work is located in India

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Copyrights
Rights of Owner
The Act lists certain activities which cannot be
done in relation to copyrighted work:
i.

To reproduce the work in any material form, including its storing in an


electronic medium

ii.

To publish work

iii. To perform the work in public,


iv.

To make any cinematographic film or record

v.

To make any translation or adaptation of the work


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Copyrights
Rights of Owner
The Act grants exclusive rights to the owner of a copyright
in a cinematograph film:
i.

To make copies of the film

ii.

To communicate the film to the public, by broadcasting or other means

Records: similar rights have been granted

Computer softwares: are covered under the head literary,


dramatic and musical work. Author can sell or give on
commercial rental
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Copyrights
Activities which are not Copyright Violations
i.

A fair deal for the purposes of private use, research, criticism or


review

ii.

A fair deal for the purposes of reporting current events in a newspaper,


magazine or periodicals

iii. For the purposes of state or functioning of law, judicial proceedings


iv.

Reading or reciting in public

v.

Publication of short passages, for educational purposes

vi.

By teacher or pupil in the course of instruction


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Copyrights
Activities which are not Copyright Violations
vii. Making upto three copies of book for a public library, if such book is
not available for sale in India
viii. Reproduction or publication of any matter published in official
gazettes, Acts enacted by the Parliament or State Legislatures
ix.

Reproduction or publication of any committee, commission, council


appointed by the legislatures, unless the government has prohibited it

x.

Reproduction or publication of any judgment or order of a court,


tribunal, or other judicial authority, unless it has been prohibited by the
court
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Copyrights
Duration of Copyright Protection

In case of literary, dramatic, musical or artistic work, when published


during life time of the author, copyright subsists during the lifetime of
the author + for the next sixty years from the death of the author

In case of joint authors, sixty years to be counted after the death of


author who dies last

In case of work which is anonymous or pseudonymous copyright is for


sixty years from the date of publications

For photographs and films: for a period of sixty years from the date its
publications
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Copyrights
Broadcast Reproduction Rights

No person can re-broadcast a broadcast. Example- if a television


channel is broadcasting a sport event, no other broadcaster can,
without licence from the owner, can record or take the feed and
broadcast it

No person can make a recording of a broadcast

No person is to sell or hire a broadcast without licence from the owner

Exceptions: private use, reporting in current events, or for the review,


teaching and research

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Copyrights
Registration of Copyrights

A person becomes owner once it is created, no need to


register to become owner

Registration is useful if a dispute arises in case of an


infringement of a copyright

Certificate of registration is a prima-facie evidence before


court

The office of the Registrar of Copyright is created


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Copyrights
Registration of Copyrights

While applying for registration details required are - All


the details of the work, as contained in the rules

To submit a copy of work

The Registrar receives application, also receives objections


on the applications, examines correctness of the
information

Upon satisfaction, work is registered and certificate issued


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Copyrights
Copyright Infringement

Infringement include a person:

i.

Copying or reproducing a work

ii. Who commercially deals in, by selling, hiring or importing


a pirated CD
iii. Permits for profit, the use of place for communication of
the copyright work to the public

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Copyrights
Copyright Infringement

The Act provides for civil and criminal liability

The court can stop the infringer and award gains made by
the infringer + damages

All the infringed copies will become the property of the


owner of the copyright

Infringer is punishable with imprisonment (between 6


months 3 years) and fine (Rs. 50,000 2,00,000)
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Fryetts Fabrics Settles Hathi Design Infringement Claim


Against Natural World

Tessitura A R Export SRL manufactured for Fryetts, as exclusive


distributor, a distinctive cushion panel design known as Hathi,
marketed by Fryetts within its Porter & Stone collection from June
2000

By mid 2002 Fryetts had sold over 45,000 metres of Hathi.

Natural World then began to sell a similar design marketed as Festival


Elephant at prices which undercut the Hathi product.

Fryetts filed suit against Natural World alleging infringement of


copyright and seeking an Injunction and damages.

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Fryetts Fabrics Settles Hathi Design Infringement Claim


Against Natural World

Natural Worlds
Festival Elephant

Fryetts Hathi

Decision in Favour of Fryett: Payment of 55,000, together


with undertakings from Natural World to withdraw its Festival
Elephant cushion and to deliver up all residual stocks of that
design to Fryetts.
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Yves Saint Laurent vs Ralph Lauren

In 1970, the French designer Yves Saint Laurent (YSL)


created and successfully marketed a long black sleeveless
tuxedo-like evening dress, which the YSL fashion house
reintroduced in their 1992 collection.

Ralph Lauren was selling a similar version of the dress in


their 1992 collection.

YSL brought suit against Ralph Lauren under copyright


infringement, design infringement and unfair competition.
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Yves Saint Laurent vs Ralph Lauren

In May 1994, the court in Paris decided in favor of YSL

Court concluded that YSL owned the 1970 dress design


under the law on Designs and Models and also considered
the dress design an original copyrighted creation.

YSL was awarded damages of FFr 2 million.

50% for copyright infringement and 50% for damages


resulting from unfair competition.
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Trade Marks

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Trademarks
A Trademark is any sign which can distinguish the
goods of one trader from those of another
Sign includes, words, logos, pictures, or a
combination of these.

SONY

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OLYMPUS

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Trademarks

A trade mark is used as a marketing tool so that customers


can recognize the product of a particular trader

To register a trade mark, the mark must be: Distinctive, and, not deceptive, or contrary to law or
morality, and, not identical or similar to any earlier
marks for the same or similar goods

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Selecting a Trademark
1. A word, letter or any combination thereof and simple in
design
2. If it is a word it should be easy to speak, spell and
remember
3. The ideal word for a trade mark is an invented or coined
word
4. Words which are laudatory or which directly describes the
character or quality of the goods should not be adopted
.

5. Geographical names connected with the reputation or


quality of the goods for which registration is sought should
not be adopted
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Registration of a Trademark
Not possible to register a mark which is confusing with a
trade mark of another trader or a trade mark which
describes the character or quality of the goods.
The mark should not conflict with a trade mark already
registered or pending registration in respect of similar
goods.

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Trademarks
The Indian law of trademarks is protected by
the Trade & Merchandise Marks Act, 1958.
The Trade Mark Act, 1999 has been enacted in
India to bring it in conformity with the TRIPs
Agreement
Indian Trademarks Act, 1999, came into force
on September 15, 2003
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Trademarks
India has made a step towards fulfilling its international
obligations.
Indian trademark law has now become fully compatible with the
International standards laid down in the TRIPs Agreement.
The New Act primarily consolidates and amends the old Trade
& Merchandise Marks Act, 1958 and provides for better
protection of goods and services

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Trademarks
A merchant who affixed a mark on his
goods obtained a property right in the mark
which he so fixed and the property thus
acquired like all other property, was under the
protection of law and for the invasion of the
right of the owner of such property

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Trademarks
A trader acquired a right of property in a
distinctive mark merely by using it upon or in
connection with his goods, irrespective of the
length of such user and of the extent of his trade
and that such right of property would be protected
by an injunction restraining any other person from
using the mark
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The Act of 1958


Individuals and firms could get their trade marks
registered for goods
The Act provides detailed grounds for the registration or
refusal to register a mark
Key Requirement: Mark should be distinctive of the origin
of the goods
Mark should be registered only in relation to specific
goods, falling in specific class of goods.
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The Act of 1999


The Act has 34 classes of goods and 7 classes of services
The services covered banking, communication, education,
financing, insurance, chit funds, real estate, transport,
storage, material treatment, processing, supply of
electrical or other energy, boarding, lodging,
entertainment, construction, amusement, repair, conveying
of news or information and adverting

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The Act of 1999


The duration of validity of trade mark is 10 years
A single application can be made for registration in
more than one class
The definition of a trade mark may include the shape
of the goods, their packaging, and the combination of
colors, so long as the mark is capable of distinguishing
the goods and services of one from the goods and
services of another
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The Act of 1999


An association can get a mark distinguishing the goods
and services of its members, registered as a collective
mark
Expansion of the meaning of Trademarks
Infringement: Protection is applicable for similar goods,
dissimilar goods, and business name of the firm
Protection is applicable to existing foreign trademarks and
well known trademarks
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Tommy Hilfiger Licensing Inc. vs. Nature Labs LLC


The US District Court in New York dismissed Tommy Hilfiger Licensing Inc's
suit finding that "Timmy Holedigger", Nature Labs perfume for dogs, does not
infringe on the fashion designer and cologne maker's trademark.

Nature Labs sells its perfumes in pet and novelty stores,


packaged in batches of three similar bottles,
bearing slogans like "strong enough for a man,
but made for a chihuahua." `

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Tommy Hilfiger Licensing Inc. vs. Nature Labs LLC

The Court ruled that the perfume, called Timmy Holedigger, could not
under any circumstance be confused with Tommy Hilfiger cologne, nor
could it be seen as a competing product trading on the designer's good
will.

Besides, Nature Labs LLC, sells numerous other parody fragrances for
pets, including Pucci (Gucci), Bono Sports (Ralph Lauren's Polo Sports)
and Miss Claybone (Liz Claiborne).

The Court observed that the other trademark holders have accepted the
parody and not challenged Nature Lab's Trademarks.

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Consumption Daily 6/29/2004


Beijing 50,000 Counterfeit LV Bags Destroyed
The local Technical Supervision Bureau (TSB) in Beijing destroyed
50,000 Louis Vuitton bags, worth RMB5 million. LVs agent in China
witnessed the destruction of the seized bags.
China Intellectual Property News 7/3/2004
Guangdong Biggest Trademark Infringing Case
Guangdong AIC recently released information on a trademark
infringing case with an estimated total value of RMB11 million. The
infringing products seized were mainly sportswear labeled NIKE,
Adidas, and other brands. Some of the infringing shoes included
NIKE designs that are scheduled to be launched in 2005.
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Gillette
Manufacturers of male and female
grooming products, writing instruments
and correction products, tooth brushes, oral
care appliances, and alkaline batteries.
Products include blades, razors, shaving
preparations and hair epilating devices
among others
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Gillette
Internationally recognised brand names such as
BRAUN, PARKER PEN, WATERMAN, LIQUID
PAPER, ORAL B, DURACEL,...
Flagship Brand .. GILLETTE
Products protected and nurtured by Trademarks in
various parts of the world

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Gillette
Gillette Company Asset Values (US $ million)

Working Capital
Fixed/Other Assets
Intangible Assets
(est. 10% of TIC)
Intellectual Property
Total Invested Capital
(TIC)

Value ($
m)

Total (%)

2,850
5,131
5,854

4.9
8.8
10.0

44,700

76.3

58,535

100.0

Source: PRICEWATERHOUSE COOPERS publication Valuation of Intellectual Property


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PEMP- GP-POM

Geographical Indications

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PEMP- GP-POM

Geographical Indications
TRIPS provisions- For reciprocal protection;
protection in the country of origin is must.
Result cases like Turmeric, Neem and Basmati.
India enacted the Geographical Indications of
Goods (Registration & Protection) Act, 1999 (with
effect from 15th September 2003).

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PEMP- GP-POM

Geographical Indications
An indication used to identify agricultural, natural or
manufactured goods originating from a definite territory in
India.
It should have a special quality or characteristics or
reputation based upon the climatic or production
characteristics unique to the geographical location.
Examples: Darjeeling Tea, Kanchipuram Silk Saree,
Alphonso Mango, Nagpur Orange, Kolhapuri Chappal,
Bikaneri Bhujia, etc.
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PEMP- GP-POM

Geographical Indications
Any association of persons, producers, organization
established by or under the law can apply representing &
protecting the interests of the producers.
The registration of a Geographical Indication is for a period
of ten years.
Renewal is possible for further periods of 10 years each.

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PEMP- GP-POM

Geographical Indications

A trade mark is a sign which is used in the course of trade


and it distinguishes goods or services of one enterprise from
those of other enterprises.

Whereas a Geographical Indication is used to identify goods


having special characteristics originating from a definite
geographical territory.

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PEMP- GP-POM

Geographical Indications

India did not have such protection with regard to


Geographical indication.

To cover up such situation Geographical Indication of


Goods (Registration and Protection) Act 1999, passed.

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PEMP- GP-POM

Geographical Indications

The salient features of Act are:-

a)

Maintenance of register of G.I in two parts Part A & Part B


through computer.

b)

Prohibition of registration of certain geographical indications.

c)

Taking infringement action by registered proprietor /


registered user.

d)

Prohibition of assignment etc. being public property.

e)

Prohibition of registration of G.I as Trade Mark.

f)

Appeal against Registrars decision to IP Board established


under the Trade Mark legislation.
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