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Intellectual Property Rights

Protection, Management
and the Law

Contribution of Intellectual Property

IPR contributes in the economic, cultural and technological


development of a country.
Granting of patents monopoly enable the competitor to
manufacture new product or improved product or effect
improvements in the process of manufacture.
Industrial design protection encourages people with creative
faculty to devote talent for developing new designs for products consumer products (Toys, garments etc.)

Trademarks - enables consumers to


obtain their product of right quality by
identifying the products by mark.
If Trademarks not protected, shoddy and
spurious goods will be available in the
market
by
copying
well
known
Trademark.
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Copyrights affects printing, publishing


and entertainment industries.
Manufacture of machine is base on
industrial drawings which enjoy copyright
protection.

IPR- A CONTRACT

A contract between the right holder and the society


- Through statutory rights - protection is granted to
the creator, inventor or innovator for his creation
to get credit and economic benefits , but statute
puts an

Obligation on the holder to exploit the creation for


public good and making the creation available to
the public for -

further promoting human creativity, fair


competition and to ensure market accessibility

Intellectual Property Law

Objective: to regulate the creation, use and


exploitation of mental or creative labour

Being used for about 150 years to refer to


general law that encompasses Copyright
,trademarks, patents , design and other related
rights

It creates rights in different things ranging from


novels, paintings, films, computer, television to
dress designs, pharmaceuticals, genetically
modified animals and plants.
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IP Law : Basic Concepts

The IP Law is based on certain basic principles:

Patent - Concept of novelty (Lack of anticipation)


- Inventive step ( or lack of obviousness)

Design - Novelty or originality of design not


published.

previously

Trademarks - Concept of distinctiveness


- Similarity of marks
- Similarity of goods

Copyright- Concept of originality and


reproduction of work in any material form

Majority of case law on IPR deal with


application of these concepts.

Patents - relates to novel product or process of manufacturing


a product

Design- relates to non-functional appearance of a product appeals to eye

Trademark - world, name, device, get up used in


relation to particular goods to indicate source of manufacture
or trade origin of goods.
Copyright - relate to original literary dramatic, musical and
artistic work cinematographic films sound recordings.
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Nature of Intellectual Property

It is in the nature of intangible


incorporate property

- It consists of bundle or rights in relation


to material object created by owner
- Patent - Property is consist of the
exclusive right to use the invention
patented, to grant licenses to others to
exercise that right or to sell that right
to third party.
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- Patents rights are created by statute and Governed by


Patents Act (1970)
-

Invention may relate to a new product or an


improvement of an existing product or a new process of
manufacturing an existing or a new product.

The acquisition of this monopoly, the conditions,


duration, Licensing of monopoly rights and their
assignments are governed by Patents Act, 1970.

-After expiry of patent term of 20years) - it becomes


public property.

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Industrial Design
-

Property consist in the exclusive right to apply


the design registered under Design Act, 2000.
Maximum Registration period 15 years the right
can be licensed for use by third party a
on assigned to any person.

-On expiry of term - Anybody can use the design.

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Trademarks
Two Types of Trademark Rights
(i) Conferred by registration under the Trademarks
Act 1999.
(ii) Acquired in relation to trademark, trade name
or get up by actual use in relation to some
product or service.

the exclusive rights granted by registration


enables the proprietor to prevent others not to
use the registered mark.
Prevent others not to register similar or
resembling marks which is likely to deceive or
cause confusion.
In case of unregistered mark or get up of good
will of business in relation to which such
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trade mark or get up is used.

Unlike patents, design or copyright, the right


conferred by registration of a trademark can be
availed for indefinite period by periodic renewal
of registration first registration is for 10 years.

If trademark is not being used continuously for


5 years - it may be removed from register.

Unregistered Trademark - right to protection of


goodwill - indefinite - mark is used lawfully and
prevent its infringement by legal action.

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Copyright - like patent and industrial


design - creation of statute: the
Copyright Act 1957

No formality used for acquisition of right

Subsist in original work


moment of its publication

period - life time of author + 60 years

from

the

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The copyright works are literary, romantic and musical or


artistic work.

Cinematograph film

Sound recording

Literary work - include - Computer Programmes, tables


and complications including computers databases

Licensing and assignment of copyright in any work is


governed by the Act.

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Know how and confidential information

Protected so long as the owner is able


to keep them secret

Takes action against unlawful use by an


action for breach of contract.

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IP Law and Jurisdiction

Law of patents, design and trademarks


are territorial in its operation.

Copyrights acquired in one country


extents to other countries which are the
members of conventions

(a) Berne Convention for protection of


literary and artistic work
(b) Universal Copyright Convention
India is member of both the
Conventions.
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Enforcement of IPR and Remedies


against infringement

An action for infringement


District/High Court

of

IPRs

before

Criminal Prosecution in case of Trade mark and


Copyrights
Patentee may obtain a injunction restraining the
infringer from using patent and
Either damages or a account of profits
No criminal remedy for infringement of Patent of
registered design.
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Trademarks

(a)Civil Remedies- an injunction & either damages or an


account profits and delivery of infringing articles for
erasure or destruction.
(b)Criminal Remedies imprisonment and fine.

may

be

punished

by

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Copyright

Civil Remedies- an injunction - either damages or


account of profits

damages for conversion

Criminal Remedies - Imprisonment and heavy


time.

Seizure of infringing copies of the work to be


delivered to the copyright owner.
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International Character of IP
Enormous Technological development of transport
and communication has resulted into globalization of
trade and commerce.

Due to Globalization of Trade & Commerce IP is


becoming international in character.

IP can trade effortlessly from one country another Piracy has become international in Character.

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Piracy of Copyright work is easy and cheep due tape recorders &
Photocopying machines.
No foolproof method of preventing this piracy.

International character of IP has been recognized by Berne


Convention, Universal Copyright Convention and Paris
Convention ( International Convention for the protection of
Industrial Property deals with patents, designs, trade marks ad
trade names etc.). India to party to these Convention.

Field of IP is expanding corresponding to developments in


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technology.

Protection of plant varies, prevention of various forms of


unfair completion, unfair business practices, dilution of
reputed trade marks and their commercial value by
using then by competitors is becoming more and more
difficult.

Piracy of IP has become international owning to


globalization of trade and commerce.

IP Law is fastest growing branch of law all over the


world.

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IP management in
Organization

Understanding of IP law helps in


managing and protecting IP assets

Managing IP helps in avoiding financial


risks and gain competitive advantage
by proper application of IP tools

Organisation should have adequate


means to track trespassing on its IP
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Organisation should conduct a IP


audit to determine compliance and
IP law risks to which it is exposed.

Organisation should assign


responsibility for developing
guidelines and prepare report on
managing IP law compliance within
the organization
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