Patents, Trade Marks, Copyright

-Comparison
• They are all Intellectual Properties- legal rights, which
result from intellectual activity in the industrial, scientific,
literary and artistic fields.
• The all are time-limited rights to control the use of their
intellectual creations.
• Patents and Trade Marks relate to ‘industrial property’.
Patents relate to creations of technology, inventions,
products and processes. Trade marks are used on
goods and services of businesses.
• Copyright does not relate to industrial property but to
literary, artistic, musical, dramatic, cinematographic,
phonographic work, broadcasts or performances.
 Mode of acquisition of IP
• Patents can only be acquired through
registration
• Trade marks can be acquired through use
or registration
• Copyright is acquired as soon as the
literary/ artistic/ musical/ dramatic … work
is created. Registration of copyright only
shifts the burden of proof on the person
who is accused of infringement
 Term of IP
• Patents- 20 years from the date of filing
• Trade Mark- 10 years from the date of registration
• Copyright:
1. Copyright in published literary, dramatic, musical and artistic
works: 60 years from the beginning of the calendar year next
following the year in which the author dies, and in the case of
photographs, films and sound recordings 60 years from the year
of publication.
2. Broadcast Reproduction Right-25years from the beginning of the
calendar year next following the year in which the broadcast is
made
3. Performer’s Right- 50 years from the beginning of the calendar
year next following the year in which the performance is made
 Remedies Against Infringement of Patents

• Patents-
1. Only civil remedies of injunction, damages or accounts of
profits are available. Seizure, forfeiture or destruction of
infringing goods, as the Court deems fit (S. 108)
2. Infringement of patent is not an offence. No criminal
action is possible.
3. ‘Damages’ or ‘an account of profits’ shall not be granted
against a defendant who proves that he was not aware of
the patent.
• Mere mention of ‘Patented’ on the article is not deemed
to make everyone aware of the existence of patent,
unless the number of the patent is also mentioned on the
article (S.111)
4. Burden of proving infringement is on the patent owner.
 Remedies Against Infringement of Trade Mark

Trade Mark:
Civil as well as criminal remedies are available against infringement
or ‘passing of’.
1. Civil Remedies of Injunction, damages or account of profits, seizure
and destruction of infringing material are available (S.135).
2. Criminal Offences : Offences of applying false trade marks or selling
them are cognizable. Police can arrest without warrant (S.115)
• Penalty for applying false trade mark- Imprisonment for 6 months to
3 years and fine of Rs 50,000 to Rs 2 lakh (S.103).The offence is
cognizable ( S.115)
• Penalty for selling goods or services to which false trade mark is
applied- same penalty (S.104). The offence is cognizable (S. 115)
• Penalty for falsely representing a trade mark as registered-
imprisonment up to 3 years, or fine, or both (s.107)
 Remedies Against Infringement of Copyright

Copyright:
1. Civil remedies include:
• Injunctions,
• Damages and
• Accounts.
• District Court has the jurisdiction
2. Criminal Offences include (S. 63):
• Any person who knowingly infringes copyright in a work shall be punishable with
imprisonment of 6 months to 3 years and fine of Rs 50,000 to Rs 2 lakh.
• Where infringement has not been made for gain in the course of trade or business,
court may give lesser punishment for reasons to be recorded.
• Construction of a building which infringes copyright in some other work is not an
offence under this section
• However, none of the offences is cognizable
3. Police can seize infringing material (S.64)
4. Rights are available to even unregistered work. Registration only shifts the burden of
proof on the person accused of infringing
 Renewal

• Patents lapse unless renewed periodically

during their life of 20 years by payment of
renewal fee (S.53). Lapsed patents can be
restored on payment of renewal fee (S.
60). Patents can not be renewed after the
expiry of their 20 year term.
• Trade Marks can be renewed, indefinitely,
for ten years at a time (S. 25 ).
 Revocation
• Patents can be revoked for non working,
any time after two years from grant of
compulsory licence. (S. 85). Patents can
also be revoked in public interest (S 66).
• A registered trade mark may be taken off
the register on the ground of non-use for 5
years.(S.47)
 Compulsory Licenses
• Any time after three years from the date of grant of
patent, Controller of Patents can grant compulsory
licence to an applicant who could not succeed in his
efforts for obtaining a licence from the patentee, if he
finds that the reasonable requirements of the public with
respect to the patent are not being met at reasonable
prices. Controller shall secure reasonable royalty for the
patentee (S.84, 90)
• Copyright Board may authorize grant of compulsory
licence to publish a work which has been published or
performed in public but is subsequently being withheld
from public by refusal of the owner of the copyright to
republish the work. (S 31). Licences may also be granted
to publish translations after a specified period from first
publication.