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Business Law Assignment

INTELLECTUAL PROPERTY RIGHTS

Submitted to:

Submitted by:

Prof. Anushka Mankad

Payal Yoganandi
11490
Sem III

or other intangibles in their expressed form. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time. The government has initiated action to bring in the requisite changes. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the Intellectual Property. vii. Performance of performing artists. Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. and symbols. Scientific discoveries. images. Literary. Intellectual property (IP) refers to creations of the mind: inventions. literary and artistic works. Copyright Act. India has enacted fully TRIPs-compliant Trademarks Act. artistic and scientific works. In the last few years.Introduction Intellectual property Right (IPR) is a term used for various legal entitlements which attach to certain types of information. Inventions in all fields of human endeavor. names. and designs used in commerce. iv. Intellectual property shall include the right relating to: i. India is a signatory of TRIPs in the Uruguay Round agreement of 1995. v. iii. ii. ideas. . Industrial designs. Geographical Indications Act and Protection of Layouts for Integrated Act. vi. service marks and etc. Protection against unfair competition. Designs Registration Act.It is now bound to amend her existing laws in order to make it to make it TRIPs-compliant. Trademarks. A novel Plant Varieties Protection and Farmers Rights Act 2001 and the Bio-diversity Act 2002 are also in Place.

2003. A patent is an exclusive right granted by law to applicants / assignees to make use of and exploit their inventions for a limited period of time (generally 20 years from filing). . Any invention concerning with composition. as amended by the Patents (Amendment) Rules 2006 effective from 05-05-2006. The patent holder has the legal right to exclude others from commercially exploiting his invention for the duration of this period.Invention” means a new product or process involving an inventive step and capable of industrial application. of an article or of an apparatus or an industrial type of process. claiming priority date on the basis of filing in Convention Countries. 3) Divisional Application (in case of plurality of inventions disclosed in the main application). PATENTS Patent is a grant for an invention by the Government to the inventor in exchange for full disclosure of the invention. 2005 and the Patents Rules. 4) Convention application. The Patent System in India is governed by the Patents Act. Types of Patent Applications 1) Ordinary Application 2) Application for Patent of Addition (granted for Improvement or Modification of the already patented invention.2 (1) (J) . for an unexpired term of the main patent). Sec.1. construction or manufacture of a substance. 1970 as amended by the Patents (Amendment) Act. 5) National Phase Application under PCT.

Process of registration of patent 1. application number is sent by post within 2. cash receipt. Formality Check  An Examiner checks the formal requirements before accepting the application and the fee – this is done immediately  Issue of application number and the cash receipt – this is done the same day  In case of receipt of application by post.in  Guidelines for applicants also available on this website 2.nic. the application is published in the official journal – this journal is made available on the website weekly  Applicant has an option to get his application published before 18 months also  In that case. Publication  Application is kept secret for a period of 18 months from the date of filing  In 19th month. application is published within one month of the request 4. Obtaining A Patent  File an application for patent – With one of the patent office’s based on territorial jurisdiction of the place of office or residence of the applicant /agent  Pay the required fee  Information concerning application form and details of fee available at www. Request for Examination• .ipindia.3 days 3.

Similarly. Acts not Constituting Infringement Where the patented invention is merely used for the purpose of experiment or research or for imparting instruction to pupils. it does not amount to infringement of patents. Limitation Period for Institution of Infringement Suit . A suit for infringement can be instituted only if the patent has been sealed. Application is examined on request  Request for examination can be made either by the applicant or by a third party  A period of 48 months. any act of making. is available for making request for examination 5. using or selling a patented invention solely for development of information required under any relevant law does not amount to infringement. a suit for infringement of patent should be instituted in the District Court having jurisdiction to try the suit. from the date of filing. Examination  Application is sent to an Examiner within 1 month from the date of request for examination  Examiner undertakes examination wart. – whether the claimed invention is not prohibited for grant of patent – whether the invention meets the criteria of patentability Remedies in case of infringement of patent Suit for Infringement When any person infringes the rights of the patentee. The patentee cannot institute a suit for infringement during the period between date of advertisement of acceptance of the complete specification and the date of sealing of patent.

It stops the infringement during the pendency of the proceedings. Relief in Suit for Infringement The patentee.Injunction‘is a normal remedy. though discretionary on the part of the Court. it is not necessary to send a notice of infringement to the defendant before filing the suit for infringement. However. Damages‘account for the loss in money terms suffered by the owner of the patent due to infringement. damages or accounts. on being successful in a suit for infringement is entitled to an injunction (or restraining). and otherwise.The period of limitation for instituting a suit for infringement is 3 years from the date of infringement. .

The Trade Marks Act. device. on the basis of either use or registration or on basis of both elements. • The selected mark should be capable of being represented graphically (that is in the paper form). . Who can apply for Trademark? Any person claiming to be the proprietor of a trade mark used or proposed to be used by him may apply in writing in Form TM-1 for registration. label. TRADEMARK A trade mark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature. 2002 govern the law relating to Trade Marks in India.It should be capable of distinguishing the goods or services of one undertaking from those of others • It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person. The Trade Marks Act.2. 1999 and the Trade Marks Rules. The Act protects a trade mark for goods or services. name. numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking. 1999 (TMA) protects the trademarks and their infringement can be challenged by a passing off or/and infringement action.

Process of registration of Trademark Trademark filing is a very easy process and can be completed in 24 hours from any remote corner of India and can use TM next to your brand name 1) Visit www.bmcgroup. • Non-cognizable offence: Criminal complaint before the District Court for search and seizure warrant against infringing parties. • The Act does not provide for infringement action in respect of unregistered Trademarks. . • Criminal complaint before the district court for seizure. action for passing off can be initiated. Criminal complaint before the District Court for search and seizure warrant against unknown persons PASSING-OFF • In respect of unregistered trademark. • A registered Trademark has the backing of infringement and passing off remedies under the Trade Marks Act.in/get-proposal 2) Fill the form for a quote & Get a detailed quote in half a minute 3) Speak with our IPR Consultant 4) We will conduct a detailed search in Trademark database for availability of name 5) Filing of Trademark with Indian Trademark Registry & TM 6) Your BRAND is protected Remedies in case of infringement of Trademark CRIMINAL ENFORCEMENT • Cognizable Offence: Criminal complaint directly with the police for arrest & seizure.

. 1999).• Only passing off remedy is available in case of unregistered Trademarks. (Section 27 of TMA Act.

namely:In the case of literary. The Act has been amended in 1983. The Copyright Rules. “copyright” means the exclusive right subject to the Provisions of this Act. It came into effect from January 1958. 1958 and the International Copyright Order. . Before the Act of 1957. The Copyright Act of 1957. distribute and adapt the work. COPYRIGHT Copyright is the set of exclusive rights granted to the author or creator of an original work. Copyright lasts for a certain time period after which the work is said to enter the public domain. 1911. 1994 and 1999. including the right to copy. In the case of computer programmes:  any of the acts specified above.3. 1999 governs the copyright protection in India. to do or authorize the doing of any of the following acts in respect of a Work or any substantial part thereof.  to make any translation or adaptation of the work or to do any of the above acts in respect to any translation or adaptation of the work.  to perform the work in public or communicate it to the public. According to Section 14 of the Act.  to make any cinematograph film or sound recording in respect of that work. dramatic or musical work:  to reproduce the work in any material form. this includes storing it by electronic Means. 1984. 1992. copyright protection was governed by the Copyright Act of 1914 which was the extension of British Copyright Act.

Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. Process of registration of Copyright Acquisition of copyright is automatic and it does not require any formality. In the case of sound recording:  to make any sound recording embodying it.  to communicate the work to the public. . facilities exist for having the work registered in the Register of Copyrights maintained in the Copyright Office of the Department of Education. In the case of cinematograph film:  to make a copy of the film. However. including a photograph of any images forming part of the film. to sell or commercially rent any copy of the computer programme. including depiction in 3-D of a 2-D  work or in 2-D of a 3-D work. However.  to include the work in any cinematograph film.  to sell or hire any copy of the film. In the case of artistic work:  to reproduce the work in any material form.  to sell or give on hire or offer for sale any copy of the sound recording. certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.  to make an adaptation of the work and/or to do any of the work mentioned above in respect of the adaptation.  to communicate the film to the public.  to communicate the sound recording to the public.

g. is a general provision authorizing the court to grant such other relief‘s as the court may deem necessary for complete redressal of the complaint. Accounts relates to the accounts of net profits earned by the defendant (infringer). It stops the infringement during the pendency of the proceedings and ensures that no further loss/damage is caused to the owner of the copyright during the period when the injunction is in force. as a remedy. Otherwise. destruction of the infringing material. accounts is not ordered as a remedy. e. The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights Remedies in case of infringement of Copyright Injunction is a normal remedy. though discretionary on the part of the court. Damages and accounts are alternative remedies. not both. the owner can choose only one of them.The entries made in the Register of Copyrights serve as prima-facie evidence in the court of law. If there are no profits.. . Damages account for the loss in money terms suffered by the owner of the copyright due to infringement.