Enforcement of Intellectual Property Rights

Group 4

........................................................ 4 Patents-.................................................. 10 Protection of IPR.......................................................................................... 2 Kinds of Intellectual Properties & Their Enforcements: ....................................................................................................................................................... 4 Copyrights........................................ 12 1 ....Table of Contents Introduction ............................................. 8 Design ..................................................................................................... 11 CONCLUSION ................................................... 6 Trademarks .................................................................................................................................. 11 Cases ...............................................................................................................................................................................................................................................................................................

Both the Paris Convention and the Berne Convention set up International Bureaus to carry out administrative tasks. The emphasis today has graduated from cost arbitrage and quality deliverable to IP creation and R&D. these two small bureaus united to form an international organization called the United International Bureaus for the Protection of Intellectual Property – best known by its French acronym. Intellectual property rights are legal rights. with a mandate to administer IP matters recognized by the UN Member States. The aim of this Convention was to help nationals of its Member States obtain international protection of their right to control. These rights also promote creativity and the dissemination and application of its results and encourage fair-trading. Research and innovation are now seen as the key differentiating factors determining the market value of a product or service. which contributes to economic and social development. Based in Berne. The need for a system to protect IP internationally arose when foreign exhibitors refused to attend an International Exhibition of Inventions in Vienna in 1873 because they were afraid that their ideas would be stolen and exploited commercially in other countries. WIPO is a specialized agency of the UN. literary and artistic fields. the use of literary and artistic works. BIRPI was the predecessor of what is today known as the World Intellectual Property Organization or WIPO. There are about 21 2 . scientific. This led to the creation of the Paris Convention for the Protection of Industrial Property of 1883. copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works.Introduction We live in a knowledge economy. where ideas generated by talented people and the inventions they make are the new currency. These rights give statutory expression to the moral and economic rights of creators in their creations. In 1893. in the form of industrial property rights. such as organizing meetings of the Member States. In 1886. with a staff of seven. BIRPI. Intellectual property rights safeguard creators and other producers of intellectual goods and services by granting them certain timelimited rights to control the use made of those productions. and receive payment for. which result from intellectual activity in the industrial. The Paris Convention was the first major international treaty designed to help the people of one country obtain protection in other countries for their intellectual creations. Switzerland.

 IP is the foundation of knowledge-based economy. Geographical Indications. Layout-Designs (Topographies) of Integrated Circuits. 3 .  The term Intellectual Property (IP) reflects the idea that its subject matter is the product of the mind or the intellect. treaties. which are administered by WIPO. Industrial Designs. which establish international protection. The major features that distinguish it from other forms are their intangibility and non-exhaustion by consumption.  IP.international treaties in the field of intellectual property. These could be in the form of Patents. it can be owned. which establish classification systems. bequeathed. It pervades all sectors of economy and is increasingly becoming important for ensuring competitiveness of the enterprises. like any other form of property can be a matter of trade. which facilitate international protection and treaties. protected through law. Plant Variety Protection and Copyright. Trademarks. that is. sold or bought. The treaties fall into three groups namely treaties.

you must apply to the appropriate body. selling or importing an invention without the permission of the inventor.  Most patents are for incremental improvements in known technology . in certain cases even after grant or even if it has been.Kinds of Intellectual Properties & Their Enforcements: PatentsA Patent is a legal monopoly. The technology does not have to be complex. is a property right and it can be given away.  A Patent gives an inventor the right for a limited period to stop others from making. That is why patent is called a "negative right"  Patents are generally concerned with functional and technical aspects of products and processes and must full fill specific conditions to be granted. sold or licensed. a Patent Agent can apply on your behalf. in the meantime. inherited. Alternatively. Depending on where you wish your patent to be in effect. That right may still be affected by other laws such as health and safety regulation or the food and drugs regulation or even by other patents. 4 . this is The Indian Patent Office. Enforcement     Suit for enforcing a patent can be filed at the District Court or the high court having jurisdiction to try the suit. an Indian patent does not give rights outside of India. Merely to have a patent does not give the owner the rights to use or exploit the patented invention. sold. As it is conferred by the government. using. In India. in the eyes of the law. Right to enforce the patent lies with person holding valid claim on subject of patent The onus of establishing the infringement is on the plaintiff Relief given to the plaintiff can be in form of Damages or account of profits or Injunction. The patent. There are various Patent Offices around the world. Patent rights last for up to 20 years in India and in most countries outside India.    Patent rights are territorial. licensed and can even be abandoned.evolution rather than revolution. the government. can revoke it. which is granted for a limited time by a country to the owner of an invention.

) The procedure concerning infringement actions must confine to the Civil Procedure Code if the suit is filed before a district court 5 . Factors deciding the Infringement are: • • The scope of the claim Whether the act amounts to any of the recognized rights under the scope of the Patent • Whether the alleged act of infringement constitutes an infringement of the monopoly recognized under the patents  Acts deciding whether an infringement has been committed or not:      Making Using Exercising Selling Distributing the invention    Plaintiff can be given a temporary injunction Person indirectly connected will also be considered as an infringer (involved in sale & Mfg.

e. unless an agreement to the contrary has been made with the author. transcribing a musical work and converting a computer program into a different computer language or code. However there are exceptions to copyright. so that some minor uses may not result in copyright infringements. Copyright material is usually the result of creative skill and/or significant labour and/or investment and without protection.) However. Copyright owners generally have the right to authorise or prohibit any of the following things in relation to their works:  Copying of the work in any way eg. the person who created the work. where such a work is made in the course of employment. economic rights enabling them to control use of their material in a number of ways.  In the case of a literary. music. typing or scanning into a computer / taping live or recorded music. the employer is the first owner of these rights. photocopying / reproducing a printed page by handwriting. films and broadcasts. musical or artistic work. Broadcasting of the work. 6 . Making an adaptation of the work such as by translating a literary or dramatic work. However. sound recordings. It would often be very easy for others to exploit material without paying the creator. audio / video or including it in a cable programme. such as literature. i. copyright does not protect ideas. It also gives moral rights to be identified as the creator of certain kinds of material and to object to its distortion or its mutilation. art. names or titles. issuing copies to the public. (Material protected by copyright is termed a "work".CopyrightsCopyright Registration in India gives the creators of a wide range of material.    Public delivery of lectures or speeches etc. broadcasting and use on-line. the general rule is that the author. Most uses of copyright material therefore require permission from the copyright owner. such as by making copies. performing in public. dramatic. is the first owner of the economic rights under copyright. The purpose of copyright law in India is to allow copyright registrants to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all.

delivery of infringing marks and damages for conversion • Criminal Remedies 7 . permission is generally needed. criminal and administrative remedies are available against infringement of artistic copyright in trademark label etc. downloading from a CD-ROM or on-line database. it is generally necessary to include an acknowledgement. So. such as photocopying. account of profits.If you are copying large amounts of material and/or making multiple copies then you may still need permission. So it is possible that an exception could be overridden by a contract you have signed limiting your ability to do things that would otherwise fall within the scope of an exception. all involve copying the work. they just state that certain activities do not infringe copyright. Also where a copyright exception covers publication of excerpts from a copyright work. scanning. Enforcement Types of copyrights in India: – – – • Logo. Other everyday uses of copyright material. use going beyond an agreed licence will require further permission. • Civil remedies for enforcement of copyright include injunction. damages. Also. Exceptions to copyright do not generally give you rights to use copyright material. slogan (Literary and artistic works) Label or wrapper containing the trade Stylized marks used as trade marks The proprietor of the trademark from another member country will get copyright protection in India • To get copyright protection – there should be reproduction of substantial part of the original copyright label • Civil. Sometimes more than one exception may apply to the use you are thinking of.

without warrant. slogans. It is used as a marketing tool so that customers can recognise the product of a particular trader. in words and/or pictures. that is. all copies of trade mark labels search all the places used for making infringing copies of the mark • Administrative Remedies – An application to the Registrar of Copyrights to ban the import of infringing copies into India and the delivery of infringing copies of trade mark Trademarks  A Trademark is any sign which can distinguish the goods and services of one trader from those of another. colours. To be registrable in India it must also be capable of being represented graphically.  A trademark is therefore a "badge" of trade origin. The new Trade Marks Act. 2003. A new Trademark regime has been introduced in India since September 15. A sign includes words.– Copyright is punishable with imprisonment – may extend from a mandatory punishment of 6 months to maximum of 3 years – – Fine not less than fifty thousand rupees and extending up to two lakh rupees For the second and subsequent conviction the minimum term of imprisonment is increased to one year and minimum fine is one lakh rupees – Officer not below the rank of Sub-inspector has the power to seize. Thus businesses 8 . 1999 has many innovative features: [1] Service Marks: A mechanism is now available to protect marks used in the service industry. three-dimensional shapes and sometimes sounds and gestures. logos.

are defined. At the same time the power of the Courts to grant ex parte injunctions have been amplified. [7] Expedited procedure: Mechanisms have been set in place for expediting search and registration by paying five times the normal fee. 9 . which are deemed to be well known. advertising. publishing. (v) Unauthorized oral use of the said trademark. [4] Enlarged scope of registration: Persons who get their marks registered for particular goods in a particular class and commence using their marks can sue and prevent other persons from (i) Using the same or similar marks even for different goods falling in other classes. beauty and health care. (iv) Importing or exporting goods under the said trade mark. educational and the like are now in a position to protect their names and marks. [3] Well-known marks: Marks. (ii) Using the same or similar marks even only as part of their firm name or company name. restaurant and hotel services. [2] Collective Marks: Marks being used by a group of companies can now be protected by the group collectively. (iii) Using the same or similar mark only in advertising or on business papers. [5] Stringent punishment: Punishment for violating a trademark right has been enhanced. The offence has now been made cognizable and wide powers have been given to the police to seize infringing goods. which are imitations of well-known trademarks. [6] Appellate Board: An appellate board (IPAB) has been constituted based in Chennai for speedy disposal of Appeals and rectification applications. Such marks will enjoy greater protection. [8] Enhanced renewal period: Registered trademarks need to be renewed every ten years. courier and transport.providing services like computer hardware and software assembly and maintenance. Persons will not be able to register or use marks.

which in the finished article appeal to and are judged solely by the eye but does not include any mode or principle of construction or anything which is in substance a mere mechanical device and does not include any trade mark. separate or combined. as defined in clause (v) of sub-section of Section 2 of the Trade and Merchandise Marks Act. designs are protected by two legal rights:   Registered designs and Artistic copyright 10 . 1958. 1957. pattern or ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms. property mark or artistic works as defined under Section 2(c) of the Copyright Act. mechanical or chemical. 1999 both civil and criminal remedies are available for taking action against infringement • Civil Remedy – – No action can be taken for infringement of an unregistered trademark in India Has to be established that the acts.Enforcement  Under Trade Marks Act. actual or threatened. there is a consequent damage Design Design means only the features of shape. of the defendant are such that they are likely to result in passing off the goods of the defendant as the goods of the plaintiff – – – – Relief: An injunction Damages or an account of profits Also given when due to a result of misrepresentation. configuration. a real likelihood of confusion or deception of the public. In India. whether manual. by any industrial process or means.

As the world grows smaller and becomes more interconnected. such as patents. One perspective is that there is not enough protection in intellectual property law for innovation and creativity. i. and to add new forms to protect new technologies undreamt of by those who created the existing forms of Intellectual Property. 2003 11 . Cases • Bangalore Aug10.Design registration in India gives the owner. the right for a limited period to stop others from making. Enforcement • The Designs Act. 2000 as an outcome of TRIPS/WTO compliance • The law provides for an enforcement mechanism whereby unauthorized application of a registered design is made illegal • The importation for sale of any article the design of which is registered in India is made illegal • To expose or publish for the purposes of sale of any article on which a design is applied is also an illegal act as per the law in force. a monopoly on his or her product.e. there is a cry for expanding the scope of existing Intellectual Property Rights ("IPRs"). 1911 was substituted with the Designs Act. using or selling the product without their permission and is additional to any design right or copyright protection that may exist automatically in the design. • • • The law provides for payment of damages by the infringer The suit must be instituted before a District Court Plaintiff may seek an interim relief and an injunction Protection of IPR There are different perspectives with regard to the level of protection to Intellectual property. copyrights and trademarks.

7 April 2000: – The Enforcement Branch. Police have seized four computers. The police recovered around 636 CDs. four CPUs. including owners. had started a new company called Ample Wave Communication Network in Koramangala. Calcutta police with the assistance from Nasscom and BSA. Historical studies divulge that patents.000) from companies while conducting raids in the city. police said. one server and one laptop from the accused.08. 4 persons.– Banashankari police arrested three software engineers for illegally copying software from a company they were working for. imposition of such regime should be adapted to the national legal and social contexts of the countries where there are indifferences. They had illegally copied code of the company’s software and were using at their company. four keyboards. The accused enginners. 2. seized pirated software worth of Rs.A delicate act of balancing private rights 12 . and 2 computers loaded with pirated software CONCLUSION The fundamentals of the Intellectual Property Laws are based on the need to protect the economic rights of the owners of the intellectual properties and also to safeguard the common man from falling a victim to those who exploit the intellectual property rights. Instituting a uniform international regime of IPR protection could bring in conflict and controversy and therefore. inequalities and huge disparities . trademarks and copyrights are recognizable intellectual properties familiar western countries for centuries. partners and senior level employees of the companies.61 crore (US$ 6. Bangalore) • Calcutta. Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. (Source: DH News Service. who were working with the Ishoni Networks India Private Limited. were arrested for this offence. The policies and procedures adopted for protection of intellectual properties and the judicial arrangements were silent over time and adapted to the needs of the beneficial and interested parties.

but must be cultivated in public” 13 .with a larger public interest is essential at least in developing countries. While it is incumbent upon society to respect the intellectual labour of the inventors. it is equally necessary for the inventors to remember what Samuel Johnson said: ”The seeds of knowledge may be planted in solitude.

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