MET INSTITUTE OF COMPUTER SCIENCE

PGDM - A (2019-2021)

COPYRIGHTS, TRADEMARK AND PATENTS AS PART OF

INTELLECTUAL PROPERTY RIGHT

GROUP 3

19 - NUSARAT CHAUDHARY

21 - VIRAJ DOSHI

23 - SIDDHANT NAIK

25 - KANISHA PUNAMIYA

27 - SEJAL PATIL

29 - AMEY JADHAV

31 - SAGAR PATIL

33 - BARKHA HARJANI

35 - HETAKSHI VASANI

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 INDEX

S.R. TABLE OF CONTENT PAGE

N10O. NO.

1 Introduction to Intellectual Property Rights 5

2 Types of Copyright 9

3 Tenure of Copyright 9

4 Economic / Moral rights of Copyright 10

5 Remedies of Infringement 11

6 Copyleft and Types of Copyleft 12

7 Registration of Copyright 13

8 World Intellectual Property Organization 14

9 Case study for Copyright 14

10 Plagiarism 16

11 Product Patent and Process Patent 18

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12 Procedure for Patent Registration 19

13 Compulsory Licensing 21

14 Tenure of Patent 22

15 Rights of Patent Holder 22

16 Patent Cooperation Treaty 22

17 Case study for Patent 23

18 Types of Trademark 24

19 Procedure for Registration of Trademark 26

20 Validity of Trademark 27

21 Rights of Registered Trademark Holder/Owner 27

22 Infringement of Trademark and Remedies 27

23 Case Study for Trademark 28

24 Statistics for Patents 29

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25 Statistics for Copyright 31

26 Statistics for Trademark 32

27 Conclusion 33

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28 Bibliography

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 INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS

Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and
symbols, names and images used in commerce.

Intellectual property emerges from human creativity, innovation and engagement. It takes different forms like
ideas, inventions, designs, music and films.

Intellectual property rights can be classified into:

· Patents

· Copyrights

· Trademarks

However, as these are properties, they can be owned, controlled, leased and traded.

Copyright – protects works of authorship, which have been expressed in a tangible form. This includes such
expressions as books, movies, works of art, and songs. Copyright protection for the individual who created the
work lasts 60 years past the lifetime of the author.

Patent –protects inventions, including machines, manufactured items, chemical compositions, and industrial
processes. The length of patent protection varies by the type of patent granted.

Trademark – protects a symbol, design, word, or phrase that identifies and distinguishes the products of one party
from those of another. This primarily applies to brand names, logos, and slogans. A trademark does not expire but
lasts as long as the owner continuously uses it.

The owner may also authorize others to exercise these rights.

Examples:

 Derivatives of protected works, such as a sequel (i.e. the Star Wars movies)

 Artistic works: Novel, Poems, Photographs

 Computing: Computer software application, Software code for a programming tool or software application

 Business: Business proposals

 Amazon's “1-Click shopping”: Amazon patented a system that allows consumers to purchase items by

clicking an order button on a website

 Acronyms (like NBC, IBM, Nike) and extend to slogans, stylized fonts, and even colors

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INTRODUCTION TO PATENTS

‘Inventions’ are the subject matter of patents. In India, the Patents Act, 1970, deals with the patenting of inventions.
The broad arrangement is as follows: a person claiming to be the inventor, applies to the Controller of Patents, for
patent rights. The controller checks the claim with respect to the novelty and usefulness of the idea and other
requirements of the law. If the application is successful, the person gets a patent right for a certain number of years.
During this period, no one can use the invention without authorization from the person. Under the Patents Act,
1970, the Government of India has created the office of the Controller of Patents.

There are many good reasons to apply for a patent including (Need):

I. The legal right of ownership of the invention

II. Often required when applying for investment

III. Protection of your product from the time the patent application is filed

For example, a scientist working for a research and development lab may have assigned his rights in his invention,
to his employer. In such a case the employer will make a patent application. The application is a detailed one and
it requires the describing of the invention in all its aspects, including its newness, use and best method of
performance. The application contains descriptions and drawings to aid the description.

Not all inventions can be patented. An invention can be defined as a new product or process involving an inventive
step and capable of industrial application.

Even if some inventions meet the criterion, they may be denied patent rights under Section 3.

Section 3 denies a patent to an invention contrary to public order or morality or which causes serious prejudice to
human, animal or plant life or health or to the environment. Under Section 3, the following inventions cannot be
patented:

·A method of agriculture or horticulture

·Any process for the medical, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human
beings or any process for a similar treatment of animals.

·Plants and animals in whole or any part thereof, other than micro-organisms but including seeds, varieties and
species and essentially biological processes for the production of plants and animals.

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INTRODUCTION TO COPYRIGHT

Copyright is about the right to copy. It is based on the notion that people who create or produce creative work,
have the right to decide how the fruits of their talent, skill and labor should be reproduced. The law on copyright
protection is contained in the Indian Copyright Act, 1957. Earlier, the principle of copyright was relevant mainly
for publishing business, film and music industry. However, much has happened in India in the last 20 years that
has made copyright relevant for all. Copyright law has found a new application in the IT industry including
computer software and the material put up on the internet.

Copyrighting is always in favor of the author or creator of the work. It is available for a very wide range of
expressions which include literary, dramatic, musical and artistic work. The first important requirement of
copyright is that the work must be original. If this requirement were not there, anyone could copy other’s work
and become the owner of that work. It is important to note that copyright is not related to ideas, but to their
expressions.

The person, whose creative expression has created the work, should be the owner. Towards this, the act introduces
the concept of ‘author’.

As the law is applicable to India and Indian citizens only, copyright arises in the following cases:

• The work is first published in India

• The work is first published outside India, but the author is Indian

• In the case of unpublished work, the author is, at the date of making the work, a citizen of India or domiciled in
India

• In case of an architectural work of art, the work is located in India

Need:

• Publish the work

• Perform the work in public

• Produce the work in a material form

• Produce, reproduce, perform or publish any translation of the work

• Make any adaptation of the work

• Communicate the work through broadcast, radio or cable

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INTRODUCTION TO TRADEMARK

As per WIPO, a trademark is a sign capable of distinguishing the goods or services of one enterprise from those
of other enterprises. Trademarks are protected by intellectual property rights.

It confers an exclusive right to the use of the registered trademark. This implies that the trademark can be
exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides
legal certainty and reinforces the position of the right holder, for example, in case of litigation.

A trademark can be a corporate logo, a slogan, a brand, or simply the name of a product.

Need:

I. Prevent unfair competition between companies

II. Helps customers distinguish between products.

III. Protects the owner's investment and reputation.

For example, few would think of bottling a beverage and naming it Coca Cola or of using the famous wave from
its logo. It is clear by now that the name "Coca Cola," and its logo belong to The Coca-Cola Company

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 COPYRIGHT

TYPES OF COPYRIGHTS

Literacy
 They are not limited to works of literature like plays, novels or poems and instead include all forms of written
documents.
 Works like technical books, scripts, research work, computer programs or database, the thesis also form a part of
the literary work.
 Example – Madeline and the Wedding is a copyrighted script of the animated show Madeline Series.
Dramatic
 They are similar to literary works but include a piece of recitation. Works like choreography, the arrangement of
play, scenic arrangement come under Dramatic type of copyright works.
 Example – Plays
Musical
 They can be protected in two different ways. The lyrics of a song fall under literary work while the music tune
(notation) can be protected under musical works. They need to be submitted in a written format.
 Example –If party A wishes to sing a song written and composed by B, since B owns the copyright of the lyrics,
A requires permission for the same from B.
Artistic works
 Copyright protection covers works of art. These include drawings, sculptures, graphics, maps, charts, photographs,
caricatures and cartoons.
 Example – “Abstract woman on Red” painting by artist Martina Shapiro is copyrighted under her name, which
means if anyone wishes to re-create the painting, the artist is required to pay a certain royalty in order to do so.
Cinematograph films
 A cinematographic work is a combination of both video films and sound recording. Any work recorded with
moving visuals or images, with or without a sound recording is considered a cinematographic film.
 Example –YehJawanihaiDiwani
Sound recordings
 Both non-musical and musical sound recording can be protected by copyright, regardless of the medium of storage.
 All sorts of music created automatically falls under copyright protection.
 Example –Recorded speech, podcasts, interviews, soundtracks, speeches.

TENURE OF COPYRIGHT
Copyright protection is granted for a period which extends through the lifetime of the author and 60 years from
the year in which the author dies.

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 RIGHTS OF COPYRIGHT HOLDER
The author of a work has the right to claim authorship of the work and to restrain or claim damages in respect of
any distortion, mutilation, modification or other acts in relation to the said work which is done before the expiration
of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honor
or reputation.

Copyright protects two types of rights:

 Economic rights allow copyright owners to derive financial reward from the use of their works by others.
Example- Content owner can earn royalty through streaming their television shows or movies through an online
streaming platform like Netflix.

 Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work.
 They are the author's or creator's special right which includes the right to paternity and the right to integrity.
 The right to paternity is the right of the author to claim authorship over his work and have it attributed to him.
 On the other hand, the right to integrity permits the author to restrain or claim damages in the event of any
distortion, mutilation, modification or any other untoward act done to his work. However, it is essential that such
an act in question should prejudice the honor and reputation of the creator or author and such act should be done
before the expiry of the term of copyright in the work.
 Though initially intended to protect only literary works, the concept of moral rights was later extended to artistic,
musical, dramatic and cinematograph films as well.
 Broadcasting reproduction right (As amended in 2012)
Every broadcasting organization shall have a special right known as “Broadcasting Reproduction Right” in respect
of its broadcasts. This right will subsist for 25 years from the year of broadcasts. During this period, if anybody
does the following acts without a license from the owner of the right, he will be deemed to have infringed the
broadcast reproduction rights

 Rebroadcast the broadcast-

Example: Television program F.R.I.E.N.D.S being broadcast at 8 am in the morning as well as 8 pm in the night.
 Cause the broadcast to be heard or seen by the public on payment of any charges:
Example: CD Rental, Video Rental, Netflix
 Make any sound recording or visual recording of the broadcast
Example: Video tapes, Sound recorder

 Performer’s Right:
If any person during the subsistence of a performer’s right, without the consent of the performer, does any of the
following acts in respect of the performance or any substantial part thereof, he will be deemed to have infringed
the performer’s right.
 makes a sound recording or visual recording of the performance, or
 Reproduced a sound recording or visual recording of the performance which was made without the performer’s
consent.
Example: When students perform in a school play, or a school band performs an assembly, one cannot make a
visual or sound recording of the same without the consent of the performers.

Case Let for Moral rights of a Copyright holder:

In the year 1957, the Government of India commissioned a certain Mr. Sehgal to create a bronze mural for the
Vigyan Bhavan, the most prominent International Convention Hall in Delhi. The bronze sculpture in question was
about 140 ft. span and 40 ft. sweep and had taken five years to complete. On completion, it was placed on the wall

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 of the Lobby in the Convention hall. This embellishment on a national architecture became a part of the Indian art
heritage.

However, in 1979, the mural was pulled down and consigned to the storeroom of the Union without notice or
permission or authorization of Mr. Sehgal. When Mr. Sehgal came to know of this ill-treatment, he made
representations to the government authorities for restoration of the mural, to no avail.

Amarnath Sehgal filed a petition under Section 57 of the Indian Copyright Act before the Delhi High Court seeking
for enforcement of his moral rights. He sought for an apology from the defendants, a permanent injunction on the
defendants to restrain them from distorting, mutilating or damaging the plaintiff's mural and damages to the tune
of INR50 lacs. He was also granted the same.

The main takeaway from this case is that despite the transfer or sale of a copyrighted work from the creator to
another person, all the rights of the creator do not get extinguished. The creator still retains his/her moral rights
that can be enforced when the need be.

REMEDIES FOR INFRINGEMENT OF COPYRIGHT

There are three types of remedies available for infringement under the Act:

1. Civil remedies
The civil remedies for infringement of copyright are of two kinds:

a) Preventive civil remedies -

These remedies are used prior in time to the occurrence of the actual act of infringement or before the damage
ensues. These are, for this reason, also the most popular among the remedies.

Example – Injunction "an official order given by a court of law, usually to stop someone from doing something”

Example –If A is fired from his job, he threatens to disclose corporate secrets to the public then the corporation
may file for an injunction to keep A from talking. Since the disclosure of sensitive company information could
cause serious damage to the corporation.

b) Compensatory remedies -

Compensatory civil remedies against the infringement of copyright can be divided into three parts:

i. Damages for a concession:

The purpose of this remedy is to restore the plaintiff to his position before the infringement.

Example –If A is fired from his job, because of which he discloses corporate secrets to the public. Since the
disclosure of sensitive company information caused serious damage to the corporation (loss in the sale), A has to
compensate the corporation with respect to their losses.

ii. Delivery up of infringing copies:

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 Where the infringement of intellectual property rights has been established, the Courts can make an order relating
to the property including delivery up or destruction to prevent infringing goods getting or remaining on the market.
The destruction will not normally be ordered if infringement can be remedied by removing offending marks from
the goods.

Example- If company A (defendant) was utilizing car engine designs similar to that of Company B (plaintiff –
copyright owner), the court makes an order to company A to either delivery all the engines to company B or
destroy the same in order to prevent further usage of the same.

iii. Account of profits

The purpose of this remedy is to make the benefiting party to surrender the profits it made. It may also be available
as an alternative action for money had and received where one person has profited from wrong at the expense of
another (and the claimant has suffered no actual loss) or in exceptional cases where other normal remedies prove
inadequate.

Example- In case of party A (defendant) has infringed the copyright of party B (Plaintiff), and through such a
situation party A has earned a profit, then party A needs to compensate party B by paying back the profits to party
A.

B. Administrative remedies -

In order to prevent importation of infringing copies in India, the Copyright Act, 1957 makes available an effective
and quick administrative remedy to the owner of the copyright. Section 53(1) of the Act empowers the Registrars
of copyrights to make an order prohibiting the importation into India of copies of a copyrighted work made outside
India which, if made in India, would infringe the rights of the copyright owner

Example - If company A (defendant) was utilizing similar front-page anime cover to that of Company B (plaintiff
– copyright owner) if Company B so wishes it can request the Court to prohibit the importation of such amine’s
in India so that it does affect the business of Company B.

2. Criminal remedies
Criminal remedies for copyright violation include

i) Punishment through imprisonment which, under Indian law, may not be less than six months but which may extend
to three years
ii) Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs. 200,000.

COPYLEFT
Copyleft, distinguished from copyright, is the practice of offering people the right to freely distribute copies and
modified versions of a work with the stipulation that the same rights be preserved in derivative works created later

For example, copylefted software allows users to run, modify, copy, and distribute software on the condition that
the source code remains open and publicly available. Such software must usually be passed on with a copyleft
license that requires successive users to accept and transmit copyleft and mandates that any modifications or
improvements to the copylefted software be likewise transmitted under copyleft.

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 Types of Copyleft
A. Strong and weak copyleft

 Strong copyleft provisions can be imposed on all derived works which means that the first creator of the work has
the most rights.
Example - The most well-known free software license that uses strong copyleft is the GNU General Public License.

 Form of copyleft where not all derived works inherit the copyleft license
Example - GNU General Public License, Mozilla Public License are redistributed without any re-licensing
required.

B. Full and partial copyleft

 Full copyleft exists when all parts of a work (except the license itself) may only be modified and distributed under
the terms of the work's copyleft license.
 Partial copyleft, by contrast, exempts some parts of the work from the copyleft provisions, thus permitting
distribution of some modifications under terms other than the copyleft license, or in some other way does not
impose all the principles of copylefting on the work.
Example - GPL linking exception made for some software packages. It in a way enables software projects which
provide library code to be "linked to" the programs that use them, without applying the full terms of the GPL to
the using program.

REGISTRATION OF COPYRIGHT

Step 1: Application: File an application with all the requisite details and make the application fee payment. If you
are filing for more than one copyright, then multiple applications need to be filed.

Step 2: Examination: Once the application is filed, a diary number is received. There is a mandatory waiting
period of 30 days to ensure no objections are filed and in case there are any objections, the registrar gives both
parties an opportunity of hearing the matter. If the registrar is not satisfied with the clarifications provided by the
applicant, the application is rejected.

Step 3: Registration: On further submission of documents, if the Copyright Registrar, is completely satisfied with
the completeness and correctness of the claim made in the application, he shall enter the particulars of the copyright
in the register of copyrights and further issue a Certificate of Registration. Registration completes when the
applicant is issued with the copy of entries made in the Register of Copyrights.

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 WORLD INTELLECTUAL PROPERTY RIGHTS (WIPO) Copyright Treaty (WCT) (1996)

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that deals with the
protection of works and the rights of their authors in the digital environment. Any Contracting Party (even if it is
not bound by the Berne Convention) must comply with the substantive provisions of the 1971 (Paris) Act of the
Berne Convention for the Protection of Literary and Artistic Works (1886). Furthermore, the WCT mentions two
subject matters to be protected by copyright:

(i) computer programs, whatever the mode or form of their expression; and

(ii) compilations of data or other material ("databases"), in any form

As to the rights granted to authors, apart from the rights recognized by the Berne Convention, the Treaty also
grants:

(i) the right of distribution - The right of distribution is the right to authorize the making of the original and
copies of a work available to the public through sale or other transfer of ownership.

(ii) the right of rental - The right of rental is the right to authorize commercial rental to the public of the original
and copies of three kinds of works:

 computer programs
 cinematographic works (but only in cases where commercial rental has led to widespread copying of such works,
materially impairing the exclusive right of reproduction) and
 works embodied in phonograms

(iii) the right of communication to the public -It is the right of the copyright owner to control the communication
of their works to the public by wire or wireless means.Generally, copyright works cannot be communicated without
the permission of the copyright owner.

CASESTUDY FOR COPYRIGHT

I. The 3 Idiots Copyright Controversy

1) Bhagat entered into a contract with the production house (Vinod Chopra Films Pvt Ltd), under which he assigned
all rights in any audio visual format of the book or its adaptation to the production house.

2) As consideration, Bhagat was to be paid a certain sum of money (totalling about Rs 11 lakhs or so). The facts
appear to indicate that he was paid this sum in full and Bhagat does not contest this in his blog post either. So this
is not really about the money.

3) Bhagat was also promised credit in the film. Clause 4 of the contract states: “It shall be obligatory on the part of
the Producer to accord credit to the author in the rolling credits of any audio-visual moving image software (of
any format or form in any media or medium) produced by the Producer in terms of the exercise and execution of
the Rights granted “Based on The Novel Five Point Someone by ChetanBhagat”

4) This clause appears to have been technically complied with, as the credits right at the end of the film do mention
the fact that the movie is based on the book by Bhagat in exactly the form that clause 4 requires. However, the

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 placement of this credit was not prominent and appeared to be rather fleeting so much so that even his family
missed it whereas the script writer of the movie was credited at the start of the movie

5) In any case, Bhagat did not specifically insist on any particular placement for the credit.

6) Bhagat claims that in the pre-release publicity and even post the movie, the makers of the movie made statements
to the effect that the movie was not really based on the book and that it was “original”. Most damagingly perhaps,
the makers claim that the movie was only based on the book to a paltry extent of 3-5%.

7) If what Bhagat states is true, he has a decent case on moral rights against the makers of the movie. Section 57 of
the Indian copyright act vests every author with the right to insist that their works be attributed to them. In other
words, even if the economic rights are assigned away (and in this case, Bhagat assigned away his rights to any
movie based on the book), the moral rights continue to vest in the author.

II. Karishma: The Miracles of Destiny

1) US-based novelist Barbara Taylor Bradford submitted an interview by freelance journalist PammiSomal as
evidence of infringement of copyright before the Calcutta High Court.

2) The novelist has filed a case against the airing of Sahara Television's mega-serial, Karishma: The Miracles of
Destiny. She claims it is based on her book ‘A Woman of Substance’.

3) Bradford claimed AkashdeepShabir, who directed the serial, had admitted in the interview that Karishma Kapoor
was inspired by her novel.

4) The court also heard the taped version of Somali’s interview with Shabir.

5) The serial marks Bollywood actress Karishma Kapoor’s debut on the small screen. One episode of the serial was
telecast on May 7, 2003. It was then pulled off the air as Bradford filed the lawsuit.

6) Calcutta High Court on June 30, 2003, vacated the May 7. 2003 stay order on the serial and allowed the channel
to resume telecast from July 7, 2003. When Bradford appealed against this decision, the division bench extended
the stay on the serial until the court gave direction to file an affidavit or dispose of the application.

7) Bradford, fighting a copyright violation suit against the channel since April, decided she “will take this matter no
further” after the Supreme Court rejected her petition for a stay on the telecast of the controversial mega serial
Karishma – The Miracles of Destiny.

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PLAGIARISM

Plagiarism is the "wrongful appropriation" and "stealing and publication" of another author's "language, thoughts,
ideas, or expressions" and the representation of them as one's own original work. In other words, it means, copying
another person's ideas, words or writing and pretending that they are one's own work.

Types of plagiarism

Direct Plagiarism

 Copying and pasting someone else's work, or making minor changes to someone else's work to pass it off
as their own.

Self-Plagiarism

 Happens when a student submits all or part of their own previous work without getting permission from
all involved professors.

Mosaic Plagiarism

 Also known as "patchwriting," Mosaic plagiarism occurs when a writer reuses a mix of word, phrases,
and ideas from a source without indicating which words and ideas have been borrowed and/or without
properly citing the source.

 Example - when a student keeps the same structure and meaning of an original passage and only uses
synonyms.

Accidental Plagiarism

 This can happen when a student does not cite their sources. It can also happen when a student paraphrases
information without giving attribution (credit to the original author or authors).

Mash-up

 Two or more data sources that have been turned into one. They may be graphics, texts, songs, and video
from various media.

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 CASE STUDY W.R.T. PLAGIARISM

Mumbai university case

1) Professor Neeraj Hater, who teaches economics at Mumbai University was found guilty of plagiarism.

2) In January 2018, a lecturer in a city college wrote to the Governor against Prof Neeraj Hater, professor at the
Mumbai School of Economics and Public Policy (MSEPP) alleging that Hater had plagiarized his PhD thesis by
copying content from his wife- Rajani Mathur's MPhil dissertation. The professor also alleged that Hater self-
plagiarized his work, which means he used parts from his other works in this thesis submitted.

3) Hater, while responding to the allegations, said "The complaint is baseless. I had presented a paper in 1991-92
from which my wife cited a few ideas for her MPhil dissertation”

4) Although found guilty of plagiarism, no action was taken against him by Mumbai University.

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 PATENT

PRODUCT PATENT AND PROCESS PATENT

 Process Patent - Under a process patent, the patent is granted for a particular manufacturing process, and not for
the product itself. Any other person can produce the same product through some other PROCESS, modifying the
various parameters. The implication is that there will be more than one producer for the same product because of
the possibility of a different process for the manufacturing of the product.

Example: That could be how to make a product, or how to use a product. A company can patent the process of
producing a certain industrial chemical which includes its composition and step by step process.

The weakness of the process patent regime is that it gives less protection for the inventor. There is a high tendency
for competitors to reengineer the original invention by discovering a new process with less strain and investment.
The benefit of process patent regime is that it reduces the element of monopoly.

 Product Patent - In the case of product patent, it is an exclusive right given to the original inventor of a product.
This means that no other manufacturer can provide the same product through the same or any other process. The
implication is that there will not be a competitor for the producer as it is the product which is patented. Product
patent system gives a higher level of protection to the inventor as there will not be any other patent holder. TRIPs
follow the product patent regime.

Example: Product patent is mainly for tangible products and commodity. Ayurvedic anti-retroviral composition
for the treatment of Acquired Immune Deficiency Syndrome

 India’s 1970 Patent Act allowed only process patent before it was amended in 2005 to comply with WTO’s TRIPs
provisions under which there are only product patents.

Example: Smooth Criminal (Product as well as process Patent)

Michael Jackson patented the process of his dance move, it's fairly easy to find this patent in the PTO database. This
patent's abstract describes this as:

 System for allowing a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially
designed pair of shoes which will engage with a hitch member movably projectable through a stage surface.

Patent No. 5,255,452 is quite explanatory; after reading this patent, there's no reason why you too can't do the "Smooth
Criminal."

It is disclosed in the prior art footwear which allows the wearer to engage his or her shoes with a stationary object. U.S.
Pat. No. 5,042,173 to Blizzard, et al. discloses footwear which can be worn by astronauts and which can be detachably
engaged with a rail fixed to a surface to aid astronauts in working in a zero-gravity environment. U.S. Pat. No. 1,165,812
to Suitably discloses a rubber overshoe which has a hook on its sole which can be engaged with a plate fixed to a surface
to assist in removing the overshoe without having to bend down and touching the overshoes.

Product Patent was introduced in India in the year 2005

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 India had a product patent regime for all inventions under the Patents and Designs Act 1911. However, in 1970,
the government introduced the new Patents Act, which excluded pharmaceuticals and agrochemical products from
eligibility for patents.

This exclusion was introduced to break away India’s dependence on imports for bulk drugs and formulations and
provide for the development of a self-reliant indigenous pharmaceutical industry.

As a result of this, the Indian pharmaceutical industry grew rapidly by developing cheaper versions of a number
of drugs patented for the domestic market and eventually moved aggressively into the international market with
generic drugs once the international patents expired.

India signed the GATT on 15 April 1994, thereby making it mandatory to comply with the requirements of GATT,
including the agreement on TRIPS.

India was thereby required to meet the minimum standards under the TRIPS Agreement in relation to patents and
the pharmaceutical industry. India’s patent legislation thus now includes provisions for the availability of patents
for both pharmaceutical products and processes inventions.

PROCEDURE FOR PATENT REGISTRATION

Step 1: Write down the invention (idea or concept) with as much detail as possible
Collect all the information about your invention such as:
 Area of invention
 Description of the invention what it does
 How does it work
 Advantages of the invention

Ideally, if you have worked on the invention during the research and development phase you should have
something called lab record duly signed with a date by you and respective authority.

Step 2: Include drawings, diagrams or sketches explaining the working of the invention
The drawings and diagrams should be designed so as to explain the workings of the invention in a better way with
visual illustrations. They play an important role in the patent application.
Step 3: Check whether the invention is patentable subject matter
All inventions may not be patentable, as per Indian patent act there are certain inventions that are not patentable.

Step 4a: Patentability search

The next step would be finding out whether your invention meets all patentability criteria as per the Indian patent
act i.e.
 Novelty
 Non-obviousness
 Industrial application
 Enabling

The patentability opinion is provided by the patent professionals upon conducting extensive search and forming a
patentability report.

19
 Step 4b: Decide whether to go ahead with patent
The patentability report and opinion help you decide whether to go ahead with the patent or not, chances are what
you thought as a novel might already be patented or known to the public in some form of information. Hence this
report saves lots of time, effort and cost of the inventor by helping him decide whether to go ahead with the patent
filing process or not.

Step 5: Draft (write) patent application

In case you are at a very early stage in the research and development for your invention, then you can go for a
provisional application. It gives the following benefits:
 Secures filing date
 12 months of time to file complete specification
 Low cost

After filing a provisional application, you secure the filing date which is very crucial in the patent world. You get
12 months of time to come up with the complete specification, upon expiry of 12 months your patent application
will be abandoned.

When you complete the required documents and your research work is at a level where you can have a prototype
and experimental results to prove your inventive step you can file complete specification with a patent application.

Filing the provisional specification is an optional step, if you are at the stage where you have complete information
about your invention then you can directly go for complete specification.

Step 6: Publication of the application

Upon filing the complete specification along with the application for patent, the application is published after 18
months of first filing.
An early publication request can be made along with prescribed fees if you do not wish to wait till the expiry of
18 months from the date of filing for publishing your patent application.
Generally, the patent application is published within a month form request form early publication.

Step 7: Request for examination

The patent application is examined only after receiving a request for the examination that is RFE. Upon receiving
this request, the controller gives your patent application to a patent examiner who examines the patent application
with different patentability criteria like:
 Patentable subject matter
 Novelty
 Non-obviousness
 Inventive step
 Industrial application
 Enabling

The examiner creates a first examination report of the patent application upon reviewing it for the above terms.
This is called patent prosecution. Everything happening to the patent application before grant of patent is generally
called as patent prosecution.
The first examination report submitted to the controller by examiner generally contains prior arts (existing
documents before the date of filing) which are similar to the claimed invention, and the same is reported to the
patent applicant.

20
 Step 8: Respond to objections
Majority of patent applicants will receive some type of objections based on the examination report. The best thing
to do is to analyze the examination report with a patent professional (patent agent) and creating a response to the
objections raised in the examination report.
This is a chance for an inventor to communicate his novelty over prior art found in the examination report. The
inventor and patent agent create and send a response to the examination that tries to prove to the controller that his
invention is indeed patentable and satisfies all patentability criteria.

Step 9: Clearing all objections

This communication between controller and patent applicant is to ensure that all objections raised in the patent
application are resolved. (if not, the patent will not be granted) and the inventor has his fair chance to prove his
point and establish novelty and inventive step over existing prior arts.

Step 10: Grant of patent

The application would be placed in order for a grant once it is found to be meeting all patentability requirements.
The grant of patent is notified in the patent journal which is published from time to time.

COMPULSORY LICENSING

1. At any time after the expiration of 3 years from the date of sealing a patent, any person interested may make an
application to the controller for grant of a compulsory license on the patent on any of the following grounds:
 The reasonable requirements of the public with respect to the patented invention have not been satisfied
 The patented invention is not available to the public at a reasonably affordable price
 The patented is not worked in the territory of India

2. Every application for a compulsory license shall contain a statement setting out the nature of the applicant's interest
together with such particulars as may be prescribed and the facts upon which the application is based

3. The controller if satisfied may grant a license upon such terms as he may deem fit.

NATCO PHARMA:

In a landmark decision on 9th March 2012, Mr. P. H. Kurian, the then Controller of Patents issued the order of
grant of a first compulsory license for patents in India. The compulsory license was issued to NatcoPharma Ltd.
in patent number 215758 granted to M/S Bayer Corporation. This patent relates to drug Sorafenibtosylate sold
under the brand name Nexavar by Bayer. Nexavar is indicated in Renal Cell Carcinoma - RCC (kidney cancer)
and Hepatocellular Carcinoma – HCC (liver cancer).

After getting this compulsory license Natco is now free to manufacture and sell a generic version of Nexavar in
RCC and HCC. Natco will have to pay a 6% royalty on the net sales to Bayer at the end of each quarter. Further,
it cannot charge more than Rs 8800 for a monthly dose of 120 tablets of the drug. Natco has also committed to
donate free supplies of the medicines to 600 needy patients each year as a condition of the compulsory license
agreement.

Above decision was based on the grounds for the grant of the compulsory license mentioned under section 84 of
the Patents Act, 1970. Controller found that the reasonable requirements of the public with respect to the patented
invention had not been satisfied since only 2% of the total kidney and liver cancer patients were able to access the

21
 Bayer’s drug. The Controller determined that the patented invention was not available to the public at a reasonably
affordable price because Bayer was charging about Rs. 2.8 lakhs for therapy of one month of the drug. The
Controller also found that the patented invention was not worked in the territory of India since Bayer was not
manufacturing the product in India rather it was importing it from outside India.

TENURE OF PATENT

The maximum duration of your patent will be 20 years (for a standard patent) or 8 years (for an innovation patent),
from the application filing date. Your patent is subject to payment of annual renewal fees.

RIGHTS OF A PATENT HOLDER

Your rights as a patent holder include the following:

1. To obtain a court order to stop a competitor unlawfully using (infringing) your patent (this kind of order is called
an injunction)
2. To grant a license to another person (e.g. in other parts of Australia, in other industries, or in other countries) to
exploit your patent commercially, in return for license fees, royalties, or other payments
3. To sell your patent
4. To gift your patent in your will
5. To mark your product and its packaging as being patented (someone who does so without having a patent commits
an offence).

If you have applied for a patent, and the application is pending, you are also entitled to mark your product, and its
packaging, to indicate that a patent is pending (e.g. 'patent-pending'). Again, someone who does so without having
a patent commits an offence.

PATENT COOPERATION TREATY

The PCT is an international treaty with 152 Contracting States. The PCT makes it possible to seek patent protection
for an invention simultaneously in a large number of countries by filing a single “international” patent application
instead of filing several separate national or regional patent applications. The granting of patents remains under
the control of the national or regional patent Offices in what is called the “national phase”.

The PCT procedure includes:

 Filing: File an international application with a national or regional patent Office or WIPO, complying with the
PCT formality requirements, in one language, and you pay one set of fees.

 International Search: An “International Searching Authority” (ISA) (one of the world’s major patent Offices)
identifies the published patent documents and technical literature (“prior art”) which may have an influence on
whether your invention is patentable, and establishes a written opinion on your invention’s potential patentability.

 International Publication: After the expiration of 18 months from the earliest filing date, the content of your
international application is disclosed to the world.

22
 Supplementary International Search (optional): A second ISA identifies, at your request, published documents
which may not have been found by the first ISA which carried out the main search because of the diversity of prior
art in different languages and different technical fields.

 International Preliminary Examination (optional): One of the ISA’s at your request, carries out an additional
patentability analysis, usually on an amended version of your application.

 National Phase: After the end of the PCT procedure, usually at 30 months from the earliest filing date of your
initial application, from which you claim priority, you start to pursue the grant of your patents directly before the
national (or regional) patent Offices of the countries in which you want to obtain them.

CASE STUDYFOR PATENT

Apple v/s Samsung

Analysis of the case:

On January 4, 2007, 4 days before the iPhone was introduced to the world, Apple filed a suit of 4 design patents
covering the basic shape of the iPhone. It is from these filings along with Apple's utility patents, registered
trademarks and trade dress rights, that Apple selected the particular intellectual property to enforce against
Samsung. Apple's complaint included specific federal claims for patent infringement, false designation of origin,
unfair competition, and trademark infringement, as well as state-level claims for unfair competition, common law
trademark infringement, and unjust enrichment.

First trial verdict:

On August 24, 2012, the jury returned a verdict largely favorable to Apple. It found that Samsung had willfully
infringed on Apple's design and utility patents and had also diluted Apple's trade dresses related to the iPhone. The
jury awarded Apple $1.049 billion in damages and Samsung zero damages in its countersuit.

First trial appeal:

On Friday, September 21, 2012, Samsung requested a new trial from the judge in San Jose arguing that the verdict
was not supported by evidence or testimony, that the judge-imposed limits on testimony time and the number of
witnesses prevented Samsung from receiving a fair trial, and that the jury verdict was unreasonable.

Supreme Court decision of First Trial:

On December 6, 2016, the United States Supreme Court decided 8-0 to reverse the decision from the first trial that
awarded nearly $400 million to Apple.

Second Retrial of damages:

The jury trial for damages concluded on May 24, 2018, awarding Apple $539 million, which includes $399 million
for damages of Samsung's products sold that infringed on the patents.

Second U.S. trial: As of mid-2018, the trials over the patent dispute have been resolved, resulting in Apple being
awarded $539 million dollars.

23
 TRADEMARK

Types of Trademarks

1. Product Mark

A product mark same as a trademark. The only difference between both refers to trademarks related to products
or goods and not services. It’s used to identify the source of a product and to distinguish a manufacturer’s products
from others. Trademark is treated as important as it protects the goodwill and reputation of a Business. The
application for the trademark can be filed within a few days and “TM” symbol can be used till registration. The
Trademark registry normally requires 18 to 24 months to complete the formalities or process. The ® (Registered
symbol) can be used next to the trademark once the trademark is registered and also registration certificate issued.
Once registered, the validity of a trademark is for 10 years from the date of filing, which can be renewed from
time to time.

Example: The logo of Amazon on Kindle

2. Service Mark

A service mark is similar to a trademark. But here instead of product or goods, it identifies the source of service.
For example, a company such as Yahoo may brand certain products with a trademark, but use a service mark on
the internet searching service that it provides. It is denoted as ‘SM’.

A service mark means a mark that distinguishes the services of one proprietor/owner from that of another. Service
marks represent the services offered by the company. Companies providing services like computer hardware and
software assembly, restaurant and hotel services, courier and transport, beauty and health care, advertising,
publishing, etc. are. now in a position to protect their names and also marks from misused by others. The rules
governing for the service marks are fundamentally the same as any other trademarks.

Example: The logo of Amazon on its online website

3. Collective Mark

These trademarks are used by a group of companies and also protected by the group collectively. Collective marks
normally used to inform the public about a particular characteristic of the product.

The owner of such marks maybe an association or a public institution or it may be cooperative. Collective marks
are also used to promote particular products which have certain characteristics specific to the producer in a given
field. Thus, a collective trademark can be used by more than one trader, provided that the trader belongs to that
particular association.

The trader associated with a particular collective mark has a responsibility of ensuring compliance with certain
standards which is fixed by its members.

Example of the collective mark – the mark “CPA”, which is used to indicate members of the Society of Certified
Public Accountants.

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4. Certification Mark

Certification mark represents a sign indicating that the goods/services are certified by the owner of the sign in
terms of origin, material, quality, accuracy or other characteristics. This differs from a standard trademark which
distinguishes the goods/services that originate from a single company.
In short, certification marks are used to define standards. They guarantee the consumers that the product meets
safety and other prescribed standards. The certification mark is embodied in the product. The presence of a
certification mark on a product indicates that the product has gone through the standard tests specified. They
guarantee the consumers that the manufacturers have gone through an audit process to ensure the desired quality.

Example - Food products, Cosmetics, Electrical goods, etc. have such marking that specifies the safety and the
quality of the product.

5. Shape marks

According to the Indian Trademarks Act, 1999, a trademark may also include the shape of goods, their packaging
to trademark so long as it's possible to graphically represent the shape clearly. This helps in distinguishing the
goods sold under such trademark from those of another manufacturer.
When the shape of goods, packaging has some distinctive features it can be registered. For example, ornamental
Lamps. In certain cases, the (three-dimensional) shape of a product or packaging can be a trademark. Shape Mark
has facilitated the promotion of products.

Example - A specially designed bottle of perfume

6. Pattern Mark

The Pattern mark consists of a pattern which is capable of identifying the goods or services as originating from a
particular undertaking. Thus, distinguishing it from those of other undertakings. Such goods/services are registered
as Pattern Marks.

In cases where the pattern mark has become identified in the minds of the public with a particular undertaking’s
goods or services, it receives acquired distinctiveness and can register for Pattern Mark. Patterns which fail to
stand out as a remarkable mark is generally rejected since it does not serve any purpose. For a pattern to be
registered, it has to show evidence of its uniqueness.

Example - Kanjeevaramsaree, Paithanisaree, Bandhanidupatta.

7. Sound Mark

Sound mark is a sound that can be associated with a product or service originating from a certain supplier. To be
able to register a sound mark, when people hear the sound, they can easily identify that service or product or a
show that the sound represents. Sound logos are called audio mnemonic and are most likely to appear at the
beginning or end of a commercial. The most popular sound mark in India is the tune for IPL.

Example - MGM’s roar of a lion

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8. Color Trademark

If a particular color has become a distinctive feature indicating the goods of a particular trader it can be registered
as a trademark.

Example - Lilac of Milka Chocolate

9. Smell Marks

When the smell is distinctive and cannot be mistaken for an associated product it can be registered as a smell mark.

Example - Perfumes

PROCEDURE FOR REGISTRATION OF TRADEMARK

Step 1: Application

 A proprietor who is willing to and intends to use the trademark can get his trademark registered with the
registrar in written format as prescribed by the law.

 Classes of goods and services include 45 classes of goods and services from which an applicant must
choose to register a trademark. Each class represents a broad range of products and services. After
choosing the correct class for your trademark, the applicant shall pay the prescribed fee.

 Every application must be filed with the trademark registry within the territorial limits of the principal
place of business. In case of joint applications, the principal place of business should be in the name of
the applicant whose name is mentioned first in the application or in case of joint applicants wherein
business is not carried on in India the place of business should be as per the address mentioned in the
application.

 The registrar is in charge of accepting the trademark as it is as a whole or prescribe the necessary
amendments, modifications, conditions or limitations wherever it is required.

 Where there is a refusal or conditional acceptance of an application the registrar has an obligation to
explain the reasons for refusal or the said conditional acceptance and give grounds of such action.

Step 2: Withdrawal or Acceptance

In case the application has been accepted by the registrar, but before its registration, in such case, if the applicant
has sufficient proof that
a) there is an error in the application
b) the application should not be registered
the registrar may decide to proceed as if the application has not been accepted.

Step 3: Correction and Amendment

The registrar has the right to allow an applicant to permit the correction of its application. In the case, a joint
application has been filed and correction has to be made in a single application, the date for the division of the
joint application will be treated as the same as when the original application was made.

26
 Step 4: Acceptance of Application

Application of trademark is accepted when:

 Application has not been opposed and the time opposition has expired.
 Registered as on date of making the application.
 The certificate is issued to the registrar sealed with the Trade Mark Registry.
 Application is treated as abandoned if registrar fails to complete the registration process within twelve months
from the date of application.

A certificate of registration is amended for the purpose of correcting a clerical error or an obvious mistake.

TENURE OF A TRADEMARK

Once the trademark is registered, it is valid for a period of 10 years from the date of application. The registration
can then be renewed indefinitely as long as the renewal fees are paid every 10 years.

RIGHTS OF REGISTERED TRADEMARK HOLDER/OWNER

 To obtain a court order (injunction) to stop a competitor unlawfully using (infringing) your registered trademark
 To grant a license to another person (e.g. in other parts of Australia, in other industries, or in other countries) to
use your registered trademark, in return for license fees, royalties, or other payments
 To sell your trademark
 To give your trademark away in your will
 To mark your trademark with the ® symbol to indicate that the trademark is registered (someone who does so
without having a registered trademark commits an offence).

INFRINGEMENT OF TRADEMARK AND ITS AND REMEDIES

An infringement suit/action is a statutory remedy available for enforcing the rights of a registered trademark. In
India, the use of registered types of trademarks or any mark identical, or deceptively similar to the registered
trademark, by any person who is not the registered proprietor, or license holder of the mark, with respect to the
goods and services for which the mark is registered, constitutes infringement.
Section 29 and 30 of the Trade Marks Act, 1999 deals with the infringement action as a remedy against unlawful
and unauthorized use of a registered trademark.

Jurisdiction for instituting a suit for infringement:

Being a statutory right, Section 134 of the Trade Marks Act, 1999 provides the jurisdiction for filing an
infringement suit. As per the provisions, a suit for infringement can be instituted before a District Court within the
local limits of whose jurisdiction, at the time of the institution of the suit or another proceeding, the person
instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and
voluntarily resides or carries on business or personally works for gain.

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 Remedies for Infringement of a Trademark:
The Trade Marks Act, 1999 simultaneously provides for both civil as well as criminal remedies for trademark
infringement. Accordingly, trademark infringement is a cognizable offence and criminal proceedings can be
initiated against the infringer.
With respect to civil remedies, the Trade Marks Act, 1999 provides for the following remedies-

Injunction
 A perpetual injunction is generally granted upon merits of the suit when the suit is finally decreed.
 A temporary injunction, as the name suggests, is for a stipulated period of time or until any further court order and
can be granted at any stage of the suit. This would be of utmost concern to any aggrieved party because unless the
court grants a temporary injunction, the other party can continue to use the mark and this would go against the
very purpose of filing a suit of infringement or passing-off.

Damages
Damages refer to the recovery of loss faced by the trademark owner through the trademark infringement. The
monetary value of financial loss or brand impairment is recovered under this head. The amount of damages will
be granted by the court after considering the actual and anticipated loss of owner due to infringement.

CASE STUDY FOR TRADEMARK

ECLAIRS- CADBURYS OR EVERYONES

The battle began when Cadburys in April 2005 filed an injunction in Ahmedabad high court seeking to restrain the use
of the trademark Eclairs by ITC against its product called Candyman Eclairs.

Since other manufacturers, too, have been using the word Eclairs, the court allowed ITC to use the name Candyman
Choco Eclairs.

ITC filed an application with the IPAB in 2005 for the removal of the trademark from the registry.

In India, it has registered 3 trademarks – Chocolate Eclairs, Orange flavored chocolate eclairs and chocolate eclairs pop).
All three names were, however, not in use despite being registered way back in 1972.

Since Cadbury had to prove usage and provide evidence of the three trademarks, which it could not give, the board
ordered the cancellation of the trademarks. The only defense of Cadbury was that they were registered proprietors both
in India and abroad.

Section 47 of the Trademarks Act, 1999, provides for removal by IPAB (Intellectual Property Appellate Board) of a
trademark on the ground of non-use as Cadbury could not provide any evidence for the usage.

ITC won the case in 2015, after being in court over the matter for more than a decade.

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 STATISTICS

PATENTS

Chart Title

4000
3500
3000
2500
2000
1500
1000
500
0

Series 1

As regards state-wise filing of applications by Indian applicants during the year

 Maharashtra continued to occupy the first position with a 6% increase over its own filing during 2016-
17.

 While Tamil Nadu continued to have the second position in the list by an impressive increase of 36%
over its own filling.

 The states of Karnataka, Delhi, Telangana, Uttar Pradesh, Gujarat, West Bengal, Haryana, Kerala,
Andhra Pradesh, Punjab, Madhya Pradesh, Rajasthan, Jharkhand, Orissa, Uttarakhand and Himachal
Pradesh showed modest to high growth in the filing as compared to their last year's filing.

States like Maharashtra are registering growth in patent filing because cities like, Mumbai, the capital of
Maharashtra is considered the financial capital of India with the headquarters of almost all major banks, financial
institutions, insurance companies and Mutual Funds being based in the city. India's largest stock
exchange Bombay Stock Exchange, the oldest in Asia, is also located in the city. More than 41% of the S&P CNX
500 conglomerates have corporate offices in Maharashtra.
Maharashtra is India's leading industrial state contributing 13% of national industrial output.
Almost 46% of the GSDP is contributed by industry. Maharashtra has software parks in many cities around the
state and is the second-largest exporter of software with annual exports over ₹80,000 crores.

29
Further states like Madhya Pradesh is registering low patent filing because its economy is mainly based on small
Industries. Until 2005, there was only one S&P CNX 500 conglomerate with its corporate office in Madhya
Pradesh viz. Ruchi Soya Industries (2005 gross income Rs 49,661 million).
Distribution of patent applicant’s category wise
The following are the details of applications filled by applicants of various categories such as Natural Person (NP),
Small Entity (SE), and Other Natural Person (ONP) during the year 2016-17 and 2017-18

YEAR NATURAL STARTUPS(SU) SMALL OTHER THAN NATURAL TOTAL

PERSONS (NP) ENTITY(SE) PERSONS(ONP)

India Foreign India Foreign India Foreign India Foreign

2016- 5918 1622 160 3 412 120 6729 30480 45444

17

2017- 6811 1444 511 4 491 131 7737 30725 47854

18

This table helps us to understand different entities involved in filing for patents. There is an increase in filing from
a natural person but if we notice there is a significant increase of 219% in India startup filing for Patents.
The Patent office generated revenue of INR 477.06 crore by way of fees for various proceedings under the Acts
and Rules.
So, the government is also having a source of income which helps them to use the same in other productive
activities.

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COPYRIGHT

Trend wise analysis of copyright is shown in the following graphical method:

Chart Title
Axis Title

19997
2017-2018 34388
17841

3597
2016-2017 16584
16617

0 5000 10000 15000 20000 25000 30000 35000

Register of Copyright generated Total Applications Examined Total Applications Received

During the year 2017-2018, a total number of 17841 applications were received and 34388 applications were
examined. During the examination, the discrepancies observed were communicated to the applicants for
rectification. The number of Register of Certificates (R.O.C) generated in 2017-2018 was 19997 which have
increased over 5 times as compared to the year 2016-2017 where only 3596 R.O.C were generated.

From this graph, we can observe that from 2016-17 to 2017-18 there was really a smaller number of increases in
applications received and applications which were examined were very high and also there is a tremendous
increase in a number of copyrights generated.
This is due to the efficiency of work which has increased over the years and also the industries and business which
have been established in a decade. With the increment in technology, business practices have become easier and
innovative techniques are being developed, along with this due to the increase in the literacy rate in India, people
are starting to be more aware of the existence of copyright and its importance, due to all the above-listed reasons,
the number of copyright applications have increased over the years and with the process of registration now in an
electronic medium, has made the entire process easier and smooth.

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 TRADEMARK

The trend in Trademark applications for the last five years:

2013-14 2014-15 2015-16 2016-17 2017-18

FILED 2,00,005 2,10,501 2,83,060 2,78,170 2,72,974

EXAMINED 2,03,086 1,68,026 2,67,861 5,32,230 3,06,259

REGISTERED 67,796 41,583 65,045 2,50,070 3,00,913

In this table we can observe that there is a rising trend in filing and registration, this is due to changes like
 registration of the trademark number of forms required is brought down from 74 to 8.
 increased manpower in government departments and online procedure making it user-friendly to register.
 Due to the increase in literacy rate in India, more people are aware of the existence of the trademark.
 Trademark helps create a brand image and gives a competitive edge to a product or a brand in this high-
pressure economy.

Revenue from trademarks

During the year 2017-18 the Trademark registry generated the revenue of Rs 286.11 crores as compared to that of
previous of Rs.192.36 crores.
Such fund is used to boost initiatives like Make in India and Start-Up India.

32
 CONCLUSION
From the subject matter, we understand that intellectual property is a property that arises from the human intellect.
It is a product of human creation. The major kinds of intellectual property included in the project are patents,
copyright and trademark.

Although intellectual property or intellectual ideas are created in the human mind, intellectual property does not
refer to the ideas. It is how the idea materializes itself and the end result that is protected with a patent, copyright,
or a trademark. The design of a fuel-efficient car maybe patented but not the idea. The story or the manuscript of
a book is copyrighted and not the idea of the book itself. When a new company is incorporated, the logo is
trademarked and not the idea of creating a logo. Consequently, all kinds of intellectual properties differ from each
other.

Copyright can be sought for by authors, artists, choreographers, architects, and other creative professionals. While
an idea cannot be copyrighted, the tangible form of an idea can be. This includes original works of authorship,
photographs, sculptures, choreography, architectural works, sound recordings, motion pictures, and other creative
works.

Inventors and designers file for patents. A patent protects inventions with a new or improved function. This
includes machines, processes, or chemical compositions, or the design for some product.

Business and product owners file for a trademark. It protects a name, word, slogan, symbol, design, and/or image
identifying a business or brand and distinguishing it from others in the same field.

The difference can be identified as the trademark is a mark, which can be a word, phrase, an image or anything
else used to recognize the source of goods or service. The patent is a right granted to the inventor of something to
manufacture, use or sell the invention. Patents prevent others from making or selling an invention,
but trademarks protect the words, phrases, symbols, logos, or other devices used to identify the source of goods or
services from usage by other competitors. Whereas, Copyright is a right given by the law to creators of literary,
dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Copyright does
not protect brands or names, short word combinations, slogans, short phrases, methods, plots or factual
information. Copyright also does not protect ideas or concepts. Therefore, copyright is mainly used to protect the
creativity of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings,
cinematograph films and computer software.

In India, there are different laws dealing with different kinds of Intellectual Properties. The Patents Act ,1970
[amended in 1999 and 2005] deals with patenting of functional and technical inventions. The Copyright Act ,1957
[amended in 1982 ,1984,1992,1994,1999 and 2012] deals with protecting the interests of purely artistic works.
The Trademark Act,1999 [amended in 1994, 1996 and 2000] deals with the mechanism of registration, protection
of trademark and prevention of fraudulent trademark.

The procedures for acquisition are different in case of different rights. The patenting process basically is as follows
– Having a patentability opinion, Preparation and filing of a patent application, Patent prosecution, Issuance,
appeal or abandonment, Maintenance fees. The complete patent process in India takes anywhere between 3 to 5
years and involves these series of steps to be mandatorily followed within prescribed timelines to get a patent in
India. Failure to avoid such deadlines can also lead to loss of the patent application. The duration of every patent
in India is 20 years [for a standard patent] or 8 years [ for an innovation patent] from the date of filing of the patent
application, irrespective of whether it is filed with provisional or complete specification. There are mainly four
types of patents namely utility patent, provisional patent, design patent and plant patent. Patents are subject to
payment of renewal fees.

33
The procedure for registration of a trademark is slightly different when compared to patents. The steps involve
searching of trademark, filing of TM-A form, issue of the examination report, advertisement in TM journal,
trademark registration. Trademark Registration is a lengthy process and it takes around 18-24 months to
obtain registration in a straight-forward case, without any objections or oppositions. However, the trademark
application number is usually issued within one or 2 days after filing. The duration of trademark registration is ten
years, that may be renewed for a further period of ten years on payment of prescribed renewal fees. The non-use
of a registered trademark for a continuous period of the five years is a ground for cancellation of registration of
such trademark at the behest of any aggrieved party. In addition to trademarks, ‚ service marks‚ trade names‚ trade
dress, collective marks‚ and certification marks all fall under the broad heading of trademarks. Also, each type of
trademark can be considered fanciful, arbitrary or suggestive on the stronger side, and descriptive and generic on
the weak side. Indian trademark laws, provide protection to the owner or registered proprietor of the mark by
ensuring the exclusive rights to use in to identify the goods and services or authorize another to use it in return of
payment, and to obtain relief in respect of the trademark in the manner provided under the Act.

The procedure for obtaining a copyright is comparatively simpler than that of patents and trademark. There are
only three major steps involved in obtaining copyright viz, filing an application, examination of the application,
registration. The present timeline for getting a work registered is between 10–12 months from the date of filing
the application. However, this is true only if no objections are raised in your application by the copyright office.
In case of objection, registration will take longer. The general time span for which copyright lasts is 60 years. In
the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year
following the death of the author.

In India, there are various remedies for Infringement of intellectual property rights in case of any kind of fraudulent
behavior related to this context. Intellectual property Infringement is basically using someone else’s Intellectual
property without the consent of the owner of that Intellectual Property. When a person acts Ultrararest, he is
breaching the law. Infringement is “a crime less serious than a felony”. Here intellectual property infringement
could be trademark infringement, copyright infringement, patent infringement etc. As we know that IP laws in
India are governed and protected under the Patents Act, 1970; Trademarks Act, 1999; Copyrights Act, 1957;
Designs Act, 2001 etc. Civil and Criminal remedies mentioned under these acts are of utmost importance for the
IP rights enforcement. The various IP laws in India mention the provisions of civil and criminal remedies for IP
rights enforcement. These civil and criminal remedies are distinct and independent. Also, they can be availed
simultaneously. Upon IP infringement civil remedies can be enforced by filing a suit for infringement and/or
passing off (in case of unregistered trademarks) in the competent court. Following reliefs of civil nature can be
granted: Injunction, Anton Pillar orders or Ex-parted orders, Orders for deliver up/surrender or seize and destroy,
an award of costs and damages and tracing orders

Criminal remedies in India are provided only for Trademarks and copyrights. Section 63 of the Copyright Act,
1957 deals with ‘Offences of Infringement of copyright or other rights conferred by the act’. It mentions about
imprisonment for a term not less than 6 months which may extend up to 3 years and fine not less than 50,000
rupees which may extend up to 2 lakh rupees, as punishment if found guilty in a copyright infringement case. This
term and fine can be increased according to the provisions of Section 63A of the Copyright Act, 1957.Chapter XII
of the Trademarks Act, 1999 deals with offences, penalties and procedures pertaining to trademark infringement.
Here on account of trademark infringement, the punishment can go as high as imprisonment up to 3 years with or
without fine. The fine ranges from 50,000 to 2 lakh rupees. This term and fine can be increased as per the provisions
of Section 105 of the Trademarks Act, 1999.Indian Patent Act, 1970 also considers falsification of entries in the
register, claiming patent rights in an unauthorized way etc. to be punishable criminal offences. Such penalties are
mentioned under Chapter XX of the Indian Patents Act, 1970.

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In India, the most common types of violation of the rights as regards infringement actions are with respect to
artistic works overlapping with trademark law, and piracy in the media and entertainment space pertaining to
musical works, sound recordings and cinematograph films

Therefore, it can be concluded that Intellectual Property Rights (IPR) has social, economic, technological and
political impacts. Rapid technology, globalization and fierce competitions leading to protect the innovations from
violations by the help of IPR such as patents, trademarks, service marks, industrial design registration, copyrights
and trade secrets. But still, there is an infringement of Intellectual Property Rights. The Government is also taking
measures to prevent them. There are laws regarding the prevention of Intellectual Property Rights Infringement.
Hence, it can be rightly said that Intellectual Property rights play a major role in protecting the interests of the
concerned parties.

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 BIBLIOGRAPHY

INTRODUCTIONS
Legal Aspects of Business by B.R Buchanan

PATENT
PRODUCT AND PROCESS PATENT
https://www.indianeconomy.net/splclassroom/what-is-the-difference-between-product-patent-and-process-
patent/
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Patents_and_the_Indian_Pharmaceutical_Industry.pdf

RIGHTS OF PATENT HOLDER

https://www.business.qld.gov.au/running-business/protecting-business/ip-kit/browse-ip-topics/new-products,-
processes-and-inventions-patents/holder-rights

WIPO (PATENT COOPERATION TREATY)

https://www.wipo.int/pct/en/

TRADEMARK
INFRINGEMENT
https://selvams.com/kb/in/trademarks/infringement/
http://www.legalservicesindia.com/article/1740/Trademark-Infringement-and-Remedies.html

The TRADEMARKS ACT, 1970

http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_43_1_trade-marks-act.pdf

RIGHTS OF TRADEMARK HOLDER:

https://www.business.qld.gov.au/running-business/protecting-business/ip-kit/browse-ip-topics/names,-such-as-
trademarks,-brands,-logos,-domain-names,-business-names-or-company-names/registered-trademark-rights

TYPES OF TRADEMARKS
http://kanoon.nearlaw.com/2018/01/17/types-trademark-india/
https://www.intepat.com/blog/trademark/types-of-trademarks/
https://www.indiafilings.com/learn/types-of-trademark/
https://www.quickcompany.in/articles/types-of-trademark-in-india

RIGHTS OF TRADEMARK HOLDER

https://www.setindiabiz.com/learning/exclusive-rights-of-trademark-owner/
https://www.lexology.com/library/detail.aspx?g=51704e3b-5ebb-4dad-852f-991d02a0c1a7 (Haven't used data
from this site yet)
https://www.amarjitassociates.com/articles/trademark-rightsconferred.htm

COPYRIGHTS
COPYLEFT
https://www.gnu.org/licenses/copyleft.en.html
https://opensource.com/resources/what-is-copyleft
https://en.wikipedia.org/wiki/Copyleft#Strong_and_weak_copyleft

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PROCESS FOR REGISTRATION OF PATENT
https://patentinindia.com/procedure-patent-registration-india/

CASE STUDIES:
https://mumbaimirror.indiatimes.com/mumbai/other/so-why-is-he-still-teaching/articleshow/68696697.cms
https://www.livemint.com/Companies/v2om2cMruwjp1CPzvPDXyO/Cadbury-loses-trademark-case-on-Eclairs.html

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