INTELLECTUAL PROPERTY RIGHT ,LLM. 10.05.

2019

Intellectual property (IP) is a term referring to creation of the intellect (the term used in studies of
the human mind) for which a monopoly (from greek word monos means single polein to sell) is
assigned to designated owners by law. Some common types of intellectual property rights (IPR), in
some foreign countries intellectual property rights is referred to as industrial property, copyright,
patent and trademarks, trade secrets all these cover music, literature and other artistic works,
discoveries and inventions and words, phrases, symbols and designs. Intellectual Property Rights are
themselves a form of property called intangible property. Although many of the legal principles
governing IP and IPR have evolved over centuries, it was not until the 19 th century that the term
intellectual property began to be used and not until the late 20 th century that it became
commonplace in the majority of the world. IP is divided into two categories for ease of
understanding: 1. Industrial Property 2. Copyright Industrial property, which includes inventions
(patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which
includes literary and artistic works such as novels, poems and plays, films, musical works, artistic
works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights
related to copyright include those of performing artists in their performances, producers of
phonograms in their recordings, and those of broadcasters in their radio and television programs.
Intellectual property shall include the right relating to: i. Literary, artistic and scientific works; ii.
Performance of performing artists; iii. Inventions in all fields of human endeavour; iv. Scientific
discoveries; v. Industrial designs; vi. Trademarks, service marks and etc; vii. Protection against unfair
competition. What is a property? Property designates those things that are commonly recognized as
being the possessions of An individual or a group. A right of ownership is associated with property
that establishes the good as being "one's own thing" in relation to other individuals or groups,
assuring the owner the right to dispense with the property in a manner he or she deems fit, whether
to use or not use, exclude others from using, or to transfer ownership. Properties are of two types -
tangible property and intangible property i.e. one that is physically present and the other which is
not in any physical form. Building, land, house, cash, jewellery are few examples of tangible
properties which can be seen and felt physically. On the other hand there is a kind of valuable
property that cannot be felt physically as it does not have a physical form. Intellectual property is
one of the forms of intangible property which commands a material value which can also be higher
than the value of a tangible asset or property Rights protected under Intellectual Property The
different types of Intellectual Property Rights are

: i. Patents ii. Copyrights iii. Trademarks iv. Industrial designs v. Protection of Integrated Circuits
layout design vi. Geographical indications of goods vii. Biological diversity viii. Plant varieties and
farmers rights ix. Undisclosed information

a. Intellectual Property 1. Inventions 2. Trademarks 3. Industrial design 4. Geographical indications b.

Copyright 1. Writings 2. Paintings 3. Musical works 4. Dramatics works 5. Audiovisual works 6. Sound
recordings 7. Photographic works 8. Broadcast 9. Sculpture 10. Drawings 11. Architectural works etc.
The term intellectual property is usually thought of as comprising four separate legal fields:

1. Trademarks 2. Copyrights 3. Patents 4. Trade secrets 1. Trademarks and Service Marks: A

trademark or service mark is a word, name, symbol, or device used to indicate the source, quality
and ownership of a product or service. A trademark is used in the marketing is recognizable sign,
design or expression which identifies products or service of a particular source from those of others.
The trademark owner can be an individual, business organization, or any legal entity. A trademark
may be located on a package, a label, a voucher or on the product itself. For the sake of corporate
identity trademarks are also being.

HISTORY OF IPR IN INDIA George Alfred DePenning is supposed to have made the first application
for a patent in India in the year 1856. On February 28, 1856, the Government of India promulgated
legislation to grant what was then termed as "exclusive privileges for the encouragement of
inventions of new manufactures" i.e the Patents Act. On March 3, 1856, a civil engineer, George
Alfred DePenning of 7, Grant’s Lane, Calcutta petitioned the Government of India for grant of
exclusive privileges for his invention - "An Efficient Punkah Pulling Machine". On September 2,
DePenning, submitted the Specifications for his invention along with drawings to illustrate its
working. These were accepted and the invention was granted the first ever Intellectual Property
protection in India. Intellectual property legislations in India India is a member of almost all
international conventions. The obligation of the member state arising out of the conventions can be
enforced on the basis of reciprocity only. No right or obligation is enforceable unilaterally. Therefore
to pass own laws on Intellectual property is in the interest of every country. In 1999, a considerate
passage of major legislations with regard to protection of Intellectual property rights in harmony
with international practices and in compliance with India’s obligations under TRIPS. These include, 1.
The Patents (Amendment) Act, 1999 to amend the patents act of 1970 that provides for
establishment of a mailbox system to file patents and accords exclusive marketing rights for five
years. 2. The Trade marks Act, 1999 which repealed the Trade and Merchandise Act, 1958 3. The
Copyrights (Amendment) Act, 1999. 4. A sui generis legislation for the protection of geographical
indications called the Geographical Indications of Goods (Registration and protection) Act, 1999. 5.
The Industrial Designs Act, 2000 which replaced the Designs act, 1911. 6. The patents (Second
Amendment), 1999 further to amend the Patents Act, 1970. This was a beginning of a new era in the
field of Intellectual property. To streamline and strengthen the Intellectual property administration
system in the country the government has taken several measures. Projects relating to the
modernization of patent information services and trademarks registry have been implemented with
the help from WIPO/UNDP. The government has implemented projects for upgrading of patent
office’s incorporating several components such as human resource development, recruiting
additional examiners, infrastructure support and strengthening by the way of computerization and
re-engineering work practices and eliminating backlog of patent applications, an amendment to the
patent rules also was notified to simplify the procedural aspects. The first Indian patent laws were
first promulgated in 1856. From time to time these were modified. New patent laws Indian Patent
Act 1970 were made after the independence. The Act has now been radically amended to become
fully compliant with the provisions of TRIPS. The most recent amendment was made in 2005 which
were preceded by the amendments in 2000 and 2003

aA 4. Human Rights law and Intellectual Property Rights (IPR) law are entirely two
different areas of law. Since their beginning, they grew isolated from each other. Neither
of them infringed on each other’s domains. But recently, it has been observed that both
the areas of law are interrelated with each other. One view is that both Human Rights
Law and IPR law are in fundamental conflict with each other. According to this view, IPR
law infringes on the different areas of Human Rights law, especially when economic,
social and cultural rights are concerned. Another view is that both IPR Law and Human
Rights law can co-exist with one another.
No reference to human rights was seen in the fundamental treaties of IPR law, such as the Paris Convention or

the TRIPS Agreement. The fundamental document of Human Rights law – the 1948 Universal Declaration of

Human Rights – protects authors’ “moral and material interests” in their “scientific, literary or artistic

production[s]”[i]. This could be seen as an indirect reference to IPR law. When the economic, social and

political rights come into view, we can see the inter-connection between Human Rights and Intellectual

Property Rights. This is where the conflict between the two areas of law arises. Here, the emphasis is to be

given on two points – the neglected rights of the indigenous communities and the social implication of the

TRIPS Agreement.

The indigenous communities claim that their governments should recognize their claim over their traditional

knowledge matter, relating to agriculture, biodiversity, etc. According to the IPR regime, traditional knowledge

is considered a part of the public domain, since it does not meet the established criteria for protection or

private ownership. Since this traditional knowledge is un-owned, many private enterprises use this knowledge

for further inventions, and protect their inventions through patents, copyrights, etc. and the indigenous

communities are deprived of their legitimate share. Thus, the existing flaw in the IPR regime leads to the

exploitation of the indigenous communities by outsiders, which leads to the violation of human rights of the

indigenous communities. In this respect, IPR law infringes on the domain of Human Rights law. The

governments should enact legislations, such that the indigenous communities can seek damages for

unauthorized uses of their traditional knowledge. The governments can also protect traditional knowledge by

denying patents, copyrights, etc. for those objects, which have been derived from traditional knowledge.

TRIPS Agreement

Another point of controversy is the TRIPS Agreement, which advocated high minimum standards of Intellectual

Property Rights protection for all World Trade Organisation (WTO) members. Non-compliance with the terms of

the agreement can result in trade sanctions. This treaty has negative implications for the underdeveloped

countries, whose previous commitment to Intellectual Property Rights protection was almost close to zero.

Transfer of technology to the developing countries will be adversely affected, due to high minimum standards

of protection for new inventions and technologies. Furthermore, it will affect the economic, social and cultural

aspects of human rights. For example, due to high minimum standards of protection for patented

pharmaceuticals, there will be too many restrictions on the access to these pharmaceuticals, which would

adversely affect one’s right to health. Thus, the practical application of the treaty will be difficult, unless it is

viewed from a human rights perspective.

Resolution of the Conflict

For resolving the conflict between Human Rights and IPR, the precise rights which are being undermined

should be identified. The Human Rights bodies should develop specific interpretations of the ambiguous rights

(mainly economic, social and cultural rights) so that they can comply with the terms of the TRIPS Agreement.

Secondly, if the TRIPS Agreement is viewed from a Human Rights perspective, then the consumers of

Intellectual Property products will be on an equal footing with the owners of Intellectual Property products. The

agreement views the consumers of these products inferior to the owners of these products. But if a Human

Rights dimension is added to the agreement, then the consumers will also become holders of these

internationally guaranteed rights. Thirdly, instead of advocating minimum standards for IPR protection, the

governments should impose maximum standards for IPR protections. This would act as a limit for the

increasing standards of IPR protection. Lastly, the international forums on IPR, such as the World Intellectual

Property Organisation (WIPO), the World Trade Organisation (WTO), etc., while making new laws on IPR,

should analyze the laws with a Human Rights perspective. It is only in such circumstances that the Human

Rights Law and IPR law will be able to co-exist with one another properly.

A 7. The Government of India in pursuit of increasing the economic efficiency of the country
acknowledged the Liberalization Privatization Globalization (LPG) era by liberalizing the economy and
reducing governmental control. Currently the flourishing Indian economy is witnessing aggressive
competition in every field. Healthy and fair competition has proven to be an effective mechanism which
enhances economic efficiency. Therefore the purpose of implementing the competition law was to curb
monopolies and encourage competition.

In contrast to the objective behind formulating the competition law, Intellectual Property (IP) Laws aim at
protecting the research and development inventions carried out by inventor firms from being used by
companies producing similar products and subsequently making a profit on the same. In other words, on
one hand, IP laws work towards creating monopolistic rights whereas competition law battles it. In view of
this there seems to be a conflict between the objectives of both laws.

Primarily, competition laws involve the formulation of a set of policies which promote competition in the
local markets and are aimed at preventing anti-competitive business practices and unwonted government
interference. Competition laws are also framed with the intention of curbing abuse of market power by a
dominant company. Further, competition law aims at eliminating monopolization of the production process
thereby encouraging new firms to enter into the market. The maximization of consumer welfare and an
increase in production value are some of the main objectives of competition law. On the other hand IP
Laws are monopolistic legal rights granted to the creators and owners of work which are a result of human

intellectual creativity. These can be in varied fields such as industrial, scientific, literary and art. Intellectual
Property Rights (IPR) gives the owners the right to exclude others from using their invented subjected-
matter for a limited period of time. Further, IPR laws pertaining to copyrights, patents, trademarks, industrial
designs and trade secrets prevent commercial exploitation of the innovation by others. IP rights grant the
owner an advantage over the rest of the industry or sector. When this advantage or dominant position is
abused it creates a conflict between IPR and competition law.

Recently an issue was raised in the Delhi High Court in the case of Hawkins Cookers Limited v M/s
Murugan Enterprises. Hawkins Cookers Limited is the owner of the trademark “Hawkins” and uses it on
several products including pressure cooker gaskets. Murugan Enterprises, manufacturers, among other
things gaskets for pressure cookers and uses the Hawkins trademark in respect of parts of pressure
cookers to establish compatibility. Murugan Enterprises in its arguments before the court opinioned that it
had its own well-established trademark “Mayur” with a prominent peacock displayed on its product
packaging. The Delhi High Court in this case held that no reasonable person or purchaser could assume a
trade connection between the “Mayur” brand of gaskets and the “Hawkins” brand of pressure cookers.
Further, the court opined that in this case the Murugan Enterprises neither sought to benefit from Hawkins’
trademark nor did it try to show a connection between the two. Additionally the court opined that the
defendants’ use of the “Hawkins” mark was only to show the suitability of the product to be used as an
ancillary product in a Hawkins pressure cooker and that such use would evidently fall within the exception
carved out under Section 30 of the Trademarks Act, 1999.

Further, the use of the trademark in relation to the product is reasonably necessary to indicate the fitness of
the gaskets for the “Hawkins” brand of pressure cookers. In the Hawkins case, Justice Kaul also pointed
out that “The object of filing of the suit thus appears to be to create a monopoly over such (gaskets)
ancillary items so that no third party is able to sell the same in the market.” The judge also goes on to point
out that the use of the “Hawkins” trademark on the gaskets packaging would have been infringing if it had
been used as a trademark. Since Murugan Enterprise’s use of the “Hawkins” mark was only indicative and
is not being used as a trademark there would be no question of infringement. The Delhi High Court
judgment in the Hawkins case reflects on the fact that dominant firms cannot be encouraged by courts if
they are found to abuse their dominance by creating a monopoly in the market thereby affecting the market
share of smaller and/or firms who are in direct competition with such dominant firms.

Additionally under Competition law, the unavailability of substitutes in the market may establish dominance
in the market. Likewise a comparison of market shares between dominant firm and their competitors is
useful in determining dominance as well as monopoly. Even then, there seems to be a difficulty in
determining the minimum percentage of the market share that could establish dominance and/or monopoly
of a particular firm in the market. Various judgments vis-à-vis dominance has also not been able to
establish a minimum percentage that indicates dominance of a firm.

Anti-competition laws in order to combat the IPR monopolies often include two important measures namely
compulsory licensing and parallel imports. A compulsory license is where an IPR holder is authorized by
the state to surrender his exclusive right over the intellectual property, under article 31 of the Trade-Related
aspects of Intellectual Property Rights (TRIP). Compulsory licenses are granted under certain circumstance
such as in the interest of public health, national emergencies, nil or inadequate exploitation of a patent in
the country, and for an overall national interest. A parallel import on the other hand includes goods which
are brought into the country without the authorization of the appropriate IP holder and are placed
legitimately into a market.
 1) PATENTS
 A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited
period of time in exchange for detailed public disclosure of an invention. An invention is a solution to a
specific technological problem and is a product or a process.
 A government authority or license conferring a right or title for a set period, especially the sole right to
exclude others from making, using, or selling an invention.
This refers to innovations – new or improved product and processes which are meant for industrial
applications. This is a territorial right which requires registration for a limited time. Patent is a contract
between an inventor as an individual and the society as a whole. The inventor has exclusive right to
prevent anybody making use of and/or selling a patented invention. Of course, this is only for a specific
duration till the inventor discloses the details of invention to the public.

The legal authority in this patent right is the World Trade Organization (WTO) agreement with respect to
Trade Related Aspects of Intellectual Property Right (TRIPS). This offers the international standard for the
required duration of 20 years from the date of filing the patent. Once this period is over, people are free to
make use of this invention as they like. However, though the member has a right to prevent others making
use of his patented invention, the owner has no right to make use or sell the invention itself. Patents are
granted under national laws and these rights are enforceable by civil laws rather than criminal proceedings.

Conditions to be satisfied by an invention to be Patentable:

1. Novelty
2. Inventiveness(Non-obviousness)
3. Usefulness
1. Novelty

A novel invention is one,which has not been disclosed,in prior art where prior art means everything that has
been published,presented or otherwise disclosed to the public on the date of patent.

2. Inventiveness(Non-Obviousness)

A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in
the art i.e skilled in the subject matter of the patent application.

3. Usefulness

An invention must posses utility for the grant of patent.No valid patent can be granted for an invention
devoid of utility.

Patentable Inventions under the Patents Act,1970

a) Art,process,method or manner of manufacture.

b) Machine,apparatus or other article,Substances produced by manufacture,which include any new and

useful improvements of any of them and an alleged invention.

c) Inventions claiming substance intended for use,or capable of being used,as food or as medicine or drug
or relating to substances prepared or produced by chemical processes(including alloys,optical
glass,semiconductors and inter-metallic compounds) are not patentable.

Types of Inventions which are not Patentable in India

An invention may satisfy the conditions of novelty,inventiveness and usefulness but it may not qualify for a
patent under the following situations:

a) An invention which is frivolous or which claims anything obviously contrary to well established natural
laws e.g. different of perpetual motion machines.
b) An invention the primary or intended use of which would be contrary to law or morality or injurious to
public health e.g a process for the preparation of a beverage which involves use of a carcinogenic
substance,although the beverage may have higher nourishment value.

c) The mere discovery of a scientific principle or formation of an abstract theory e.g Raman Effect.

d) The mere discovery of any new property or ne use of known substance or the mere use of known
process,machine or apparatus unless such a known process results in a new product or employs at least
one new reactant.

e) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the
components thereof or a process for producing such substance.

f) The mere arrangement of rearrangement or duplication of features of known devices each functioning
independently of one another in a known way.

g) A method or process of testing applicable during the process of manufacture for rendering the
machine,apparatus or other equipment more efficient.

h) A method of agriculture or horticulture.

i) Any process for medical,surgical,curative,prophylactic or other treatment of human beings,or any process
fo a similar treatment of animals or plants.

j) Inventions relating to atomic energy.

Types of patents
i) Utility patents

ii) Design patents

iii) Plant patents

i) Utility patents

A utility patent may be available for inventions which are novel, useful, and non-obvious. Utility patents can
be obtained for the utilitarian or functional aspects of an invention. Utility patents have a term of twenty
years from the date of filling the patent application with the patent and trademark office, although term
extensions are available in certain specific situations. During the term of a utility patent, maintenance fees
must be paid in order to sustain the patent.

ii) Design patents

It can be granted to any one who invents a new, original ornamental design for an article of manufacture. A
design patent protects the ornamental design (i.e. appearance) of the article. A design patent has duration
of 14 years from the date of filing. Design patents are not subject to maintenance fee payments.

iii) Plant patents

Plant patent can be granted to any one who invents or discovers and reproduces a new variety of plant. A
plant patent may be issued for the invention or discovery of a distinct and new variety of plants, which may
be asexually reproduced. To qualify for this type of patent, the discovery or invention must be novel,
distinct, and non-obvious. A plant patent has a term of 20 years from the date of filing.

Term of a Patent in the Indian System

a) Five years from the date of selling of the patent or seven years from the date of the patent (i.e the date
of filing the complete specification) whichever period is shorter,for an invention claiming the method or
process of manufacture of a substance,where the substance is intended or capable of being used as a
drug,medicine or food.

b) Twenty years from the date of patent in respect of any other patentable invention.

Essential Patent documents to be submitted

There are two types of patent documents usually known as patent specification,namely

1. Provisional specification
2. Complete Specificaion
1. Provisional Specification

A provisional specification is usually filled to establish priority of the invention in case the disclosed
invention is at a conceptual stage and a delay is expected in submitting full and specific description of the
invention.Although,a patent application accompanied with provisional specification does not confer any
legal patent rights to the applicants,it is however a very important document to establish the earliest
ownership of an invention.Complete specification must be submitted within 12 months of filing the
provisional specification.This period can be extended by 3 months.

2. Complete Specification

Submission of complete specification is necessary to obtain a patent.The contents of a complete

specification would include the following:

Title of the invention

 Field to which invention belongs.

 Background of the invention including prior art giving drawbacks of the known inventions practices.
 Complete description of the invention along with experimental results.
 Drawings etc. essential for understanding the invention.
 Claims,which are statements,related to the invention on which legal proprietorship is being sought.Therefore
the claims have to be drafted very carefully.
Criteria for Naming inventors in an Application for Patent
The name of inventors is normally decided on the basis of the following criteria:

1. All persons who contribute towards development of patentable features of an invention should be named as
inventors.
2. All persons,who have made intellectual contribution in achieving the final results of the research work
leading to a patent,should be named as inventor(s)
3. A person who has not contributed intellectually in the development of an invention is not entitled to be
included as an inventor.
A person who provided ideas needed to produce the ‘germs of the invention’ need not himself/herself carry
out the experiments,construct the apparatus with his/her own hands or make the drawings
himself/herself.The person may take the help of others.Such persons who have helped in conducting the
experiments,constructing apparatus or making the drawing or models without providing any intellectual
inputs are not entitled to be named as inventors.

Where to apply?
Application for the patent has to be filled in the respective patent office as mentioned below.The territorial
jurisdiction is decided based on whether any of the following occurrences falls within the territory.
 1. Place of residence,domicile or business of the applicant(first mentioned applicant in the case of joint
applicants)
2. Place from where the invention actually originated.
3. Address for services in India given by the applicant when he has no place of business or domicile in India.
A foreign applicant should give an address for service in India and the jurisdiction will be decided upon
that.An applicant (Indian or foreigner) also can his Patent Agent’s address as address for serving
documents,if he/she so wishes.

How to apply?
Steps involved in obtaining a Patent

 To file an application for patent accompanied with either a provisional specification or a complete
specification
 To file complete specification,if provisional application was submitted earlier.
 Examination of the application by patent office.
 Acceptance of applications and publication in the gazette of accepted applications.
 Responding and satisfactory overcoming the opposition/objections,if any to the grant of patent.
 Sealing of patent
Application for patent(Form 1) in duplicate should be accompanied by the documents as indicated below.
The fee(Rs./- for natural citizen of India or Rs./- for other than a citizen) can be paid within one month.

2) COPY RIGHTS
A copyright is a very particular and exclusive right even for reproduction of an original work. This is for
material, aesthetic material, literacy, music, film, sound recording, broad casting, software and multimedia.
This offers automatic right for safeguarding any original creation, which is not in need of registration but
with limited time. It does not require the lawyer’s help for settlement.

Protection to copy right does not give any procedure, principle, concept or method or operation,
irrespective of the format in which it is explained. In other words protection of copyright is limited to an
inventor’s particular expression of an idea, concepts or process in a tangible medium. Copyright is
sanctioned to prevent others from:

a) Copying the work

b) Publishing and selling copies commercially

c) Renting or lending the work in a free market

d) Doing or demonstrating the work in public

Works protected by Copyright

The types of copyright works are broadly categorized into:

a) Original literary,dramatic,artistic or musical works.

b) Sound recordings,films or broadcasts and

c) The typographical arrangement of published editions.

Literary work also includes:

  A table or compilation other than a database
 A computer program
 Preparatory design material for a computer program
 A database
Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the copyright owner.

 Can copy the work

 Issue copies of the work to the public
 Rent or lend the work to the public
 Perform,show or play the work in public
 Communicate the work to the public-this includes broadcasting of a work and also electronic transmission
and make an adaptation of the work or do an y of the above in relation to an adaptation.
The TRIPS agreement offers a minimum duration of copyright protection to the tune of the life of the
inventor or author plus fifty years. Anyhow rights granted exclusively to the copy right owner may allow
others in making fair use of the owner’s work, like for the purpose of review, comment, reporting, teaching,
researches, etc. Of course, the impact of copying an inventor’s work’s commercial value is considered to
find out whether the copying is for “fair use”. In order to secure protection for copy right, the particular work
must be an original work made or written in a tangible medium of expression. The test for such originality
consists of two conditions –

(1) work must originate from the inventor and not a copy from others’ works.

(2) the invention or work must have adequate amount of creativity.

c) TRADE MARKS
Trademark is for broad identity of specific goods and services allowing differences to be made among
different trades. This is a territorial right, which requires registration, but without any time limit. Lawyers
are needed for guidelines.

A trademark is an identification symbol which is used in the course of trade to enable the purchasing
people (buyers) to distinguish one trader’s goods from the similar goods of other traders. These marks also
symbolize distinctly the quality of the products. These marks are in the form of certain ‘wordings’ or can be
in the format of logos, designs, sounds, etc. Examples: NIIT, Kodak.

The TRIPS agreement offers the same type of protection for trademarks. Registration of trademark is
issued for definite period of time. However, in order to avoid confusion, encourage competitions and
protect the inventor’s good will, the registration may be renewed. With reference to intellectual property
area, trademarks are national in origin and should comply with provision of TRIPS agreement.

TYPES OF TRADEMARKS
Generic Trademarks

Words, symbols or devices that are not so distinctly distinguishing the goods from others are at the
weakest ends, as they are common terms used to identify the goods themselves. These are termed as
generic terms and are not protectable as trademarks.

Descriptive Trademarks

Descriptive trademarks clearly denote or inform the specific purpose, functions, physical characteristic and
end use of the product.

Suggestive Trademarks
Suggestive trademarks do not at a glance describe the goods for which the mark is used; yet they rather
require some imagination or perception to arrive at a conclusion about the nature of the goods.

The other types of trademarks include arbitrary marks and fanciful marks which are inherently distinctive.

d) TRADE SECRETS
A trade secret means information, which is kept confidential as a secret. This is generally not known in the
relevant industry, offering an advantage to its owner over other competitors. Unlike other types of
Intellectual property, this trade secret is fundamentally a “do-it-yourself’ type of protection. For engineers,
inventors, and designers, the trade secrets are to be maintained secretly. Such trade secrets include some
formulae, programmes, methods, progresses or data collections etc. If there is any improper disclosure or
use of the trade secret by another person, the inventor may claim and recover damages resulting from
illegal use.

TRIPS agreements offer the protection for trade secrets under the heading ‘protection of undisclosed
information’. The engineer in competitive field should feel their responsibility and status when they make
use of such trade secrets till its disclosure. If the information of a trade secret is available through any
legitimate means and if any inventor is responsible illegally for such leaking, then the trade secret may
become ineligible for protection.

Enforcement of Intellectual Property Rights is definitely private rights. If anybody uses the material without
the inventors’ permission, the Intellectual Property right owners can use any remedies available under the
civil law.

NEED FOR PROTECTION TO IPR

The protection of intellectual property rights is an essential element of economic policy for any country.
Only such protection can stimulate research, creativity and technological innovations by giving freedom to
individual inventors and companies to gain the benefits of their creative efforts.

It is a very important issue to plan to protect the intellectual property rights. The major needs are to:

 Prevent plagiarism.
 Prevent others using it.
 Prevent using it for financial gains.
 Fulfill obligation to funding agency.
 Support income generation strategy.
IMPORTANCE OF IPR
a) Give the inventors exclusive rights of dealing.

b) Permit avoiding of competitors and increase entry barriers.

c) Allow entry to a technical market

d) Generate steady income by issuing license.

e) A registered intellectual property right is property, just like your capital assets. However, it is an asset
that can be leveraged through licensing and can therefore be highly valuable. It can also greatly enhance
the value of a business when it is sold.

f)Benefits the economy

Sectors that rely on IPR represent a significant part of developed and developing economies, in terms of
GDP, employment, tax revenues and strategic importance. IPR also promotes foreign direct investment
(FDI) and technology transfers in developed and developing countries.

g)Promotes innovation
Effective IPR increases funding for research and development and other innovation, including by helping
firms realize more value from innovations that are protected by IPR than those that are not. IPR underpins
development of cultural expression and diversity, and promotes broader dissemination of innovations
through publication and licensing.
h) “Open source” relies on IPR

Open source mechanisms are becoming popular in certain sectors such as software (cf. GPL licences,
etc.). While the common perception is that such mechanisms are characterized by the absence of any IP
protection, it is worth noting that a typical GPL (General Public) licence actually relies on IP rights as it is
typically a copyright license which remains valid as long as certain conditions are complied with (e.g.
freedoms received by the licensee must be passed on to subsequent users, even where the software is
modified).

i) Providing guarantees regarding the quality and safety of products

Many counterfeit products place our children’s and citizens’ safety or health at risk, for instance where
vehicle spare parts or drugs are concerned. Enforcing IP rights in respect of such products guarantees at
least that the products’ origin is known and that the products are genuine, whereas counterfeit products
often do not comply with the applicable safety standards. This is especially true for trade marks, but patent
licensing contracts, for instance, may also include quality insurance clauses.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of intellectual
properties may serve to identify intellectual properties from other types of properties.
Thus, we will discuss them in brief.
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it an issue?
Because intellectual property rights have one characteristic which other national rights
do not have. In ownership of intellectual property of immovable properties, issues of
cross borders are not probable. But in intellectual properties, it is common. A film made
in Hollywood can be seen in other countries. The market is not only the local one but
also international. If a design in China is imitated by another person in France which law
would be applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most
intellectual property rights cannot be implemented in practice as soon as the owner got
exclusive rights. Most of them need to be tested by some public laws. The creator or
author of an intellectual property enjoys rights inherent in his work to the exclusion of
anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to put a
dichotomy between intellectual property rights and the material object in which the work
is embodied. Intellectual property can be bought, sold, or licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most intellectual
property rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual property
attempts to preserve and find adequate reconciliation between two competing interests.
On the one hand, the intellectual property rights holders require adequate remuneration
and on the other hand, consumers try to consume works without much inconvenience. Is
limitation unique for intellectual property?
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single original work
without affecting the interest of other right holders on that same item. Because of the
nature of indivisibility, intellectual property is an inexhaustible resource. This nature of
intellectual property derives from intellectual property’s territorial nature. For example, an
inventor who registered his invention in Ethiopia can use the patent himself in Ethiopia
and License it in Germany and assign it in France. Also, copyright is made up of different
rights. Those rights may be divided into different persons: publishers, adaptors,
translators, etc.
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