Intellectual Property Rights

Intellectual Property Rights (IPRs) are legal rights that protect creations of the
mind, such as
 inventions
 literary and artistic works
 designs
 symbols
 names and images used in commerce

These creations are resulting from intellectual activity in the industrial,

scientific, literary or artistic fields. The most common IPRs include the
following
 Patents
 Copyrights
 Trade Marks
 Trade Secrets

IP protection enable people to earn recognition or financial benefit from the

product what they invent or create. The modern concept of intellectual property
has been developed in England in the 17th and 18th centuries. The term
"intellectual property" began to be used in the 19 th century, though it was not until
the late 20th century that intellectual property became commonplace in the majority
of the world's legal systems. As for the Trade-Related Aspects of Intellectual
Property Rights (TRIPS) , agreement requires members of the WTO to set
minimum standards of legal protection.

Patents
As per Section 2(1) (j) of the Patents Act, 1970, "invention" includes any new and
useful product such as

 Art, process, method or manner of manufacture;

 Machine, apparatus or other article;
 Substance produced by manufacture, and includes any new and useful
improvement of any of them, and an alleged invention;

The definition of the word "Invention" in the Patents Act, 1970 includes the new
product as well as new process. Therefore, a patent can be applied for the
"Product" as well as "Process" which is new, involving inventive step and capable
of industrial application can be patented in India.

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 A patent is a form of right granted by the government to an inventor or their
successor-in-title, giving the owner with right to exclude others from
making, using, selling, offering to sell, and importing an invention for a
limited period of time, in exchange for the public disclosure of the invention.
 An invention is a solution to a specific technological problem, which may be
a product or a process and generally has to fulfill three main requirements: it
has to be new, not obvious and there needs to be an industrial applicability. 
 Invention, which may include a product or a process that provides. It not
only rewards ideas but also encourages the development of innovations and
new technologies in every field
 The scope of patented invention or the extent of protection is defined
in claims of granted patent.

 In general, patent is a new way of doing something. It offers a new technical

solution to a problem.

 Until recently, the purpose of intellectual property law was to give as little
protection as possible in order to encourage innovation.
 To get a patent, technical information about the invention must be disclosed
to the public in a patent application.

 In principle, the patent owner has the exclusive right to prevent or stop
others from commercially exploiting the patented invention. In other words,
patent protection means that the invention cannot be commercially made,
used, distributed, imported or sold by others without the patent owner's
consent.
 Patents do also have territorial rights. In general, the exclusive rights are
only applicable in the country or region in which a patent has been filed and
granted, in accordance with the law of that country or region.

 Further, the duration of protection is granted only for a limited period,

generally 20 years from the filing date of application.

 A Patent Owner has every right to commercialize his/her/its patent,

including buying and selling the patent or granting a license to the invention
to any third party under mutually agreed terms. 

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Categories of Patents
There are three different categories that patents can fall under:

 Utility: A utility patent protects the creation of a new or improved product,

process, composition of matter, or machine that is useful.

An example of utility patent: Method for a driver assistance system of a

vehicle US9772626B2

 Design: A design patent protects the ornamental design on a useful item.

An example of design patent: Electric bicycle USD845178S1

 Plant: A plant patent protects new kinds of plants produced by cuttings or

other nonsexual means.

An example of plant patent: Crapemyrtle plant named

‘JM1’  USPP31585P2

Example : Sport Patent and Intellectual Property

Innovation and creativity are key drivers in the world of sport. In every
sporting field, inventors and creators are working behind the scenes to push the
boundaries, creating new opportunities for enjoyment and for the better
performance of athletes.
 Sport shows intellectual property (IP) in action 
 Patents encourage technological advances that result in better sporting
equipment. 
 Trademarks, brands and designs contribute to the distinct identity of events,
teams and their gear. 
 Copyright-related rights generate the revenues needed for broadcasters to
invest in the costly undertaking of broadcasting sports events to fans all over
the world.
 IP rights are the basis of licensing and merchandising agreements that earn
revenues to support development of the sports industry.

In a Sport Patent, shoe may be protected by several IP rights

 Patents protect the technology used to develop the shoe

 Designs protect the “look” of the shoe

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 Trademarks distinguish the shoe from similar products and protect the
“reputation” of the shoe (and the company making it)
 Copyright protects any artwork and audiovisual creations used to publicize
the shoe

Figure 1 :Constant innovations in

technology and materials have helped athletes
reach ever greater heights. (Photo: Tim
Clayton/Corbis)

Some more Examples of Patents

 One of the most notable patents in the past 40 years was the personal
computer filed in 1980 by Steve Jobs and three other employees of Apple
Inc.

 King C. Gillette patented the razor in 1904 and was dubbed a "safety razor."
Garrett Morgan was granted a patent for the traffic light in 1923.

 The patent for the television was issued in 1930 to Philo Taylor Farnsworth
for the "first television system.

Intellectual Property Law

 The main purpose of intellectual property law is to encourage the creation
of a wide variety of intellectual goods for consumers.
 To achieve this, the law gives people and businesses property rights to the
information and intellectual goods they create, usually for a limited period of
time. Because they can then profit from them, this gives economic incentive
for their creation. 

Copyright

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or

"works".  Copyright does not cover ideas and information themselves, only the
form or manner in which they are expressed. A copyright gives the creator / author
of an original work  the exclusive right to sell, publish, and/or reproduce any

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literary, musical, dramatic, artistic, or architectural work created by the author.
Creative and intellectual works covered by copyright are as follows

 Books
 Music
 Photo
 Paintings
 Sculpture
 Films
 Computer Programs
 Databases
 Advertisements
 Maps
 Technical Drawings
 Computer Programs
 Software producers need protection against unauthorized copying in order to
recoup their investments, but using patents for this raises questions

Trade Marks

 Trademarks are another familiar type of intellectual

property rights protection.  A trademark is a distinctive sign which allows
consumers to easily identify the particular goods or services that a company
provides. Some examples include McDonald’s golden arch, the Facebook
logo, and so on. A trademark can come in the form of text, a phrase, symbol,
sound, smell, and/or color scheme. Unlike patents, a trademark can protect a
set or class of products or services, instead of just one product or process.

Figure 2 : Trade Mark of McDonald’s

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 Trade Marks Act 1999 ("TM Act") provides, inter alia, for registration of
marks, filing of multiclass applications, the renewable term of registration of
a trademark as ten years as well as recognition of the concept of well-known
marks, etc. It is pertinent to note that the letter "R" in a circle i.e. ® with a
trademark can only be used after the registration of the trademark under the
TM Act.
 Trademark means any words, symbols, logos, slogans, product packaging or
design that identify the goods or services from a particular source. As per the
definition provided under Section 2 (zb) of the TM Act, "trade mark" means
a mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others and
may include shape of goods, their packaging and combination of colors.
 A trademark is a recognizable sign, design or expression which
distinguishes products or services of a particular trader from similar products
or services of other traders / enterprises
 Trademarks date back to ancient times when artisans used to put their
signature or "mark" on their products.

 Main Difference between R and ™ Symbol include the following

- ™ refers to the unregistered trademark to promote or brand goods.
- R – within a circle refers to the registered trademark. It is used by the
owner of a trademark that has been registered.

 Trade dress is a legal term of art that generally refers to characteristics of the
visual and aesthetic appearance of a product or its packaging (or even the
design of a building) that signify the source of the product to consumers.
 An industrial design constitutes the ornamental or aesthetic aspect of an
article. A design may consist of three-dimensional features, such as shape or
surface of an article, or of two-dimensional features, such as patterns, lines
or color.

 An industrial design right (sometimes called "design right" or design patent)

protects the visual design of objects that are not purely utilitarian. An
industrial design consists of the creation of a shape, configuration or
composition of pattern or color, or combination of pattern and color in three-
dimensional form containing aesthetic value. An industrial design can be a
two- or three-dimensional pattern used to produce a product, industrial

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 commodity or handicraft. Generally speaking, it is what makes a product
look appealing, and as such, it increases the commercial value of goods.
 Plant breeders' rights or plant variety rights are the rights to commercially
use a new variety of a plant. The variety must amongst others be novel and
distinct and for registration the evaluation of propagating material of the
variety is considered.
 Geographical indications are the signs used on goods that have a specific
geographical origin and possess qualities, a reputation or characteristics that
are essentially attributable to that place of origin. Most commonly, a
geographical indication includes the name of place of origin of goods.

Points to Consider While Adopting a Trademark

Any startup needs to be cautious in selecting its trade name, brands, logos,
packaging for products, domain names and any other mark which it proposes to
use. You must do a proper due diligence before adopting a trademark. The
trademarks, can be broadly classified into following five categories:

 Generic
 Descriptive
 Suggestive
 Arbitrary
 Invented/Coined

 Generic marks means using the name of the product for the product, like
"Salt" for salt.
 Descriptive marks means the mark describing the characteristic of the
products, like using the mark "Fair" for the fairness creams.
 Suggestive marks means the mark suggesting the characteristic of the
products, like "Habitat" for home furnishings products.
 Arbitrary marks means mark which exist in popular vocabulary, but have no
logical relationship to the goods or services for which they are used, like
"Blackberry" for phones.
 The invented/ coined marks means coining a new word which has no
dictionary meaning, like "Adidas". The strongest marks, and thus the easiest
to protect, are invented or arbitrary marks. The weaker marks are descriptive
or suggestive marks which are very hard to protect. The weakest marks are
generic marks which can never function as trademarks.

NICE Classification of Goods and Services

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  India follows the NICE Classification of Goods and Services for the purpose
of registration of trademarks.
 The NICE Classification groups products into 45 classes (classes 1-34
include goods and classes 35-45 include services).
 The NICE Classification is recognized in majority of the countries and
makes applying for trademarks internationally a streamlined process.
 Every startup, seeking to trademark a good or service, has to choose from
the appropriate classes, out of the 45 classes.
 While adopting any mark, the startup should also keep in mind and ensure
that the mark is not being used by any other person in India or abroad,
especially if the mark is well-known.
 It is important to note that India recognizes the concept of the "Well-known
Trademark" and the principle of "Trans-border Reputation".
 Example of well-known trademarks are Google, Tata, Yahoo, Pepsi,
Reliance, etc.
 Further, under the principle of "Trans-border Reputation", India has afforded
protection to trademarks like Apple, Gillette, Whirlpool, Volvo, which
despite having no physical presence in India, are protected on the basis of
their trans-border reputation in India.

Enforcement of Trademark Rights

Trademarks can be protected under the statutory law, i.e., under the TM Act and
the common law, i.e., under the remedy of passing off. If a person is using a
similar mark for similar or related goods or services or is using a well-known
mark, the other person can file a suit against that person for violation of the IP
rights irrespective of the fact that the trademark is registered or not.

Trade Secrets

 A trade secret has are IP rights on confidential information which may be

sold or licensed. 
 It is a formula, practice, process, design, instrument, pattern, or compilation
of information which is not generally known or reasonably ascertainable, by
which a business can obtain an economic advantage over competitors and
customers.
 There is no formal government protection granted; each business must take
measures to guard its own trade secrets (e.g., Formula of its soft drinks is a
trade secret for Coca-Cola.)
Intellectual Property Infringement

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Violation of intellectual property rights, called "infringement" with respect to
patents, copyright, and trademarks, and "misappropriation" with respect to trade
secrets, may be a breach of civil law or criminal law, depending on the type of
intellectual property involved, jurisdiction, and the nature of the action.

Patent infringement
Patent infringement typically is caused by using or selling a patented invention
without permission from the patent holder. In general, patent infringement cases
are handled under civil law (e.g., in the United States) but several jurisdictions
incorporate infringement in criminal law also (for example, Argentina, China,
France, Japan, Russia, South Korea).

Copyright infringement
Copyright infringement is reproducing, distributing, displaying or performing
a work, or to make derivative works, without permission from the copyright
holder, which is typically a publisher or other business representing or assigned by
the work's creator. It is often called "piracy". While copyright is created the
instant a work is fixed, generally the copyright holder can only get money damages
if the owner registers the copyright. 

Trademark infringement
Trademark infringement occurs when one party uses a trademark that is identical
or confusingly similar to a trademark owned by another party, in relation to
products or services which are identical or similar to the products or services of the
other party. In many countries, a trademark receives protection without
registration, but registering a trademark provides legal advantages for enforcement.
Infringement can be addressed by civil litigation and, in several jurisdictions, under
criminal law.

Trade secret misappropriation

 Trade secret misappropriation is different from violations of other
intellectual property laws, since by definition trade secrets are secret, while
patents and registered copyrights and trademarks are publicly available.
 In United States, trade secrets are protected under state law, and states have
nearly universally adopted the Uniform Trade Secrets Act.

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  United States also has federal law in the form of  Economic Espionage Act
of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or
misappropriation of a trade secret a federal crime.
 This law contains two provisions criminalizing two sorts of activity. The
first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit
foreign powers.
 The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or
economic purposes. (The statutory penalties are different for the two
offenses.)
 In Commonwealth common law jurisdictions, confidentiality and trade
secrets are regarded as an equitable right rather than a property right but
penalties for theft are roughly the same as in the United States.
Design of an article which can’ot be registrable in India, if it:

 is not new or original;

 has been disclosed to the public anywhere in India or in any other
country by publication in tangible form or by use in any other way prior to
the filing date or priority date of the application;
 is not significantly distinguishable from known designs or combination of
known designs; or
 comprises or contains scandalous or obscene matter.

Patent Applications and Patent Office

Patent applications must satisfy the following three criteria:

 Novelty
This means that your invention must not have been made public – not even
by yourself – before the date of the application.

 Inventive step
This means that your product or process must be an inventive solution. It
cannot be a solution that would be obvious to a manufacturer. Take the
example of a different attachment method. Instead of welding the tubes of a
swing together, they might be screwed together. This may well be a new
method of making swings. But for someone involved in making them, it is
too obvious a solution to be called an inventive step.
 Industrial applicability

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 This criterion implies that it must be possible to actually manufacture the
new invention. In other words, you can apply for a patent on a new kind of
playing card that is easier to hold than existing cards. But you can’t obtain a
patent for an idea for a new card game.

The patent office is headquartered at Kolkata with branches in Chennai, New

Delhi and Mumbai, but the office of the CGPDTM is in Mumbai. The office of
the Patent Information System and National Institute for Intellectual Property
Management is at Nagpur. The cost to file a patent is approximately Rs. 40,000 to
60,000. This is assuming an Experience Patent attorney (firm) is working with you
for patent research, Patent drafting (writing), Patent filing and subsequent steps
of publication and examination request.
How to Apply for a Patent ?
 Before making a formal application, an applicant should research the Patent
and Trademark Office's database to see if another person or institution has
claimed a patent for a similar invention.

 The invention must be different from or an improvement upon a previous

design to be considered for a patent.

 It is important for applicants to take care to maintain accurate records of the

design process and the steps taken to create the invention. Enforcing the
patent is up to the person or entity that applied for the patent.

To apply for a patent in the United States, the applicant submits specific
documents and pays associated fees. Written documentation includes drawings,
descriptions, and claims of the item to be patented. A formal oath or declaration
confirming the authenticity of the invention or improvement of an existing
invention must be signed and submitted by the inventor. After fee payment, the
application is reviewed and either approved or denied.

Getting a patent revoked

Someone who considers that your invention does not meet the criteria for a patent
can try to have your patent revoked. These proceedings are heard by the district
court in The Hague. This court must decide whether your patent does in fact fulfill
the criteria, and whether it should be revoked or upheld. To get a clear-cut idea
WIPO Academy offers distance learning and face-to-face courses. Choose from a
rich portfolio of general and specialized courses on IP to improve your skills,
whatever your level of knowledge or interest.

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