AN ANALYSIS OF THE MAJOR TYPES OF IP

(Lakshmi Raj C)

Article 27 of the UDHR declares in cognizable terms the right to protection of ‘moral and
material interests’ arising from the creation of any scientific, literary, or artistic work. In the
normative sense, the moral and material interests associated with the production and usage of
original works constitute Intellectual Property. In other words, it is the entitlement available
to an entity who either directly or incidentally contributes to the creation or fostering of
unique innovations through a fair utilisation of their intellectual capabilities. Protection of
such pathbreaking initiatives is inevitable for stimulating pioneering initiatives for the
scientific and technical advancement of a nation. With the ever-increasing demand for novel
breakaways in almost all spheres of human activity, it goes without saying that Intellectual
Property Rights form an important area of application in today’s world. Legal recognition in
the form of IPR ensures a conducive atmosphere for the production and development of
versatile forms of Intellectual Property. India is a party to several international treaties and
conventions, which obliges it to maintain a protective IP Law Regime to guard against
unreasonable infringements on this globally recognized right.

The most common forms of IP are Patents, Trademarks, Copyrights, Industrial Designs,
Trade Secrets, and Geographical Indication. Each of them denotes a distinct pattern of rights
associated with specific types of intellectual innovations. These branches together constitute
the legal framework of IPR.

Patent rights are in the form of inalienable rights granted to an innovator of a unique
invention, for a limited period. Under the Indian Patents Act, 1970 an invention may refer to
a product or process which involves an “innovative step” and that which can be used for
industrial application. Thus, along with novelty, commercial viability is also an important
determinant of the right to secure a patent. Patent rights are available for products as well as
processes.1 A patent gives the possessor the right to decide the producer, seller, or importer of
his invention.2 Under Indian Law, the expiration term of a patent is 20 years from the date of
filing of application for patent.3 The expiration term is the same for international applications
for patent filed under the Patent Cooperation Treaty designating India.
1
Chandra Nath Saha & Sanjib Bhattacharya, Intellectual property rights: An overview and implications in
pharmaceutical industry, 2 J ADV PHARM TECHNOL RES 88–93 (2011).
2
What is a patent? - Swiss Federal Institute of Intellectual Property, https://www.ige.ch/en/protecting-your-
ip/patents/patent-basics/what-is-a-patent.html (last visited Nov 11, 2020).
3
The Patents Act, 1970 No. 39, Acts of Parliament (1970).
Trademarks afford protection to a design or mark forming a defining character of an entity or
enterprise. It can be a recognizable word, phrase or symbol and act as a legal differentiator of
a company’s product or service.4 Under Indian Law, Trademarks enjoy statutory protection
under the Trade Marks Act, 1999 and the Trade Marks Rules of 2002 and 2017. According to
the Trade Marks Act, 1999, a mark may denote a device, brand, heading, label, ticket, name,
signature, word, letter, numeral, shape of goods, packaging or combination of colours or any
combination.5 The Act also accords special protection and safeguards against infringement of
“well-known trademarks”. As per the Act, a “well-known trademark” is a mark which has
attained considerable popularity among the general public that the usage of such a mark by
another entity is likely to mislead the public into believing that the such enterprise is a part of
the original trademark owner. Through incorporation of this special category, Indian law tries
to ensure the preservation of the larger public interest in the consumer market.

Copyrights are exclusive rights available to the creator or owner of literary works, artistic
creations, music or other utilisable creations of human mind. In essence, copyright constitutes
a group of rights which includes the right of adaptation, reproduction, publication, right to
create translations, and communication to the public. 6 The rights are available to the owner of
the copyright or a person duly licensed by him. Generally, under Indian Law, a copyright
subsists throughout the lifetime of the creator and for a period of 60 years commencing from
the subsequent year of his/her death.7 Specific usages of copyrights may be considered “fair
use” and accordingly not subject to infringement actions.8 A relevant instance is where a
relatively unimportant part of a copyrighted work is put into a non-profit usage. Copyright
infringement claims generally do not lie against such usages.

Industrial Designs are unique identifying shapes, configurations, patterns, ornamentations or

combinations of lines or colours engrafted on a manufactured product by the manufacturing
enterprise. Legal protection can be extended to a design only when it is novel, unique, visible
or capable of being applicable to a functional article. 9 Further, it must not have been

4
Carla Tardi, Behind Trademarks, INVESTOPEDIA, https://www.investopedia.com/terms/t/trademark.asp (last
visited Nov 11, 2020).
5
Trade Marks Act, 1999 No.47, Acts of Parliament (1999).
6
Copyright Law in India - Copyright Office, Copyright act, http://www.legalserviceindia.com/article/l195-
Copyright-Law-in-India.html (last visited Nov 11, 2020).
7
The Copyright Act, No. 14, Acts of Parliament, 1957.
8
Deborah E. Bouchoux, INTELLECTUAL PROPERTY THE LAW OF TRADEMARKS, COPYRIGHTS, PATENTS AND
TRADE SECRETS 5 (4d eds. 2012).
9
Industrial Design Protection In India: The Designs Act, 2000 - Intellectual Property - India,
https://www.mondaq.com/india/patent/758452/industrial-design-protection-in-india-the-designs-act-2000 (last
visited Nov 11, 2020).
previously used or published. The Design Act, 2000 is the comprehensive legislation in India,
which deals with design rights. While dealing with industrial designs as a form of IP, it is
essential to draw the distinction between a copyright and Industrial Design. Section 15 of the
Copyright Act, 1957 addresses this aspect by declaring that a design and a copyright cannot
exist concurrently. Further, a mark on a product ceases to be a copyright, when it has been
reproduced more than fifty times through an industrial process. Industrial designs are also
distinct from Patents and Trademarks; for they protect distinguishing marks on a product
which is embedded on it following the manufacturing process and is not representative of a
marketing brand or entity.

A Trade Secret is any piece of information which is not generally available in the public
domain nor reasonably deducible by the general public. It gives the entity possessing or
utilising it, a competitive edge over other potential competitors in the market. Unlike other
forms of IP, Trade Secrets have the potential to cover a wide range of information and is
generally not restrictive in its scope and extent. 10 They are considered extremely significant
for the growth and sustenance of a commercial enterprise. 11 Though India lacks specific
legislation on the subject matter of protection of Trade Secrets, implied guarantees of
protection are available under numerous laws like the Indian Contract Act,1872, The
Copyright Act, 1957, the Information Technology Act, 2000.12 Besides these, Indian courts
have resorted to the application of common law principles of equity while deciding questions
of trade secrets infringements.

A Geographical Indication is a symbolic recognition of the belongingness of a particular

product or commodity to a specified geographic location. For the grant of GI, it is necessary
that the commodity must possess unique and significant qualities due to its origin at a
particular geographic location.13 GI Tags on consumable products raise the level of consumer
acceptance, while ensuring premium price for the producers of the goods in those locations. 14
GI tagged goods are most often used in common parlance in conjunction with the places of

10
Trade Secrets: The Hidden IP Right, https://www.wipo.int/wipo_magazine/en/2017/06/article_0006.html (last
visited Nov 11, 2020).
11
Trade Secrets In Indian Courts - Intellectual Property - India, https://www.mondaq.com/india/trade-
secrets/204598/trade-secrets-in-indian-courts (last visited Nov 11, 2020).
12
R. N. A. Technology, IP Attorneys-Ranjan Narula & Rachna Bakhru, Protecting trade secrets in India |
Lexology, https://www.lexology.com/library/detail.aspx?g=c83e8a6c-a02e-44ba-8723-94087d2e5e20 (last
visited Nov 11, 2020).
13
Geographical Indications, https://www.wipo.int/geo_indications/en/index.html (last visited Nov 11, 2020).
14
Sanjeev Agarwal & Michael J Barone, Emerging Issues for Geographical Indication Branding Strategies¸
MATRIC RESEARCH PAPERS, 2 (2005).
their origin; for instance, Basmati Rice, Kancheepuram Silk Saree, Alphanso Mango,
Malabar pepper, Nagpur Orange to name a few. Under Indian Law, GI is governed by the
Geographical Indications of Goods (Registration and Protection) Act, 1999. Under Section 18
of the Act, the registration of a GI is valid for a period of 10 years, which may be renewed
from time to time. The Act also prohibits the registration of a geographic indication as a
trademark for marketing products.

It follows that a proper understanding of the various forms of IP is essential to strengthening

the knowledge about certain key fundamental aspects of the legal framework on IPR.
Further, it is deducible that under Indian Law, sufficient care has been taken to ensure that the
subject matter of the major types of IPR does not overlap. The possibility of confusion that
may arise from interpretive aspects of IPR has been sufficiently guarded against through the
incorporation of practical terms in the provisions governing different types of IP in India.

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