Intellectual Property is a great marketing tool for business all over the world, and it receives protection from the legislation of various countries. In today's economy, they are considered the most valuable assets of a company.
Intellectual Property has now become a precarious commodity, especially with the increase in cross-border transactions. The intellectual properties attached to these transactions need protection.
As the certain intellectual property is country specific protection, it is important to analyze and ascertain the protection provided in each jurisdiction.
This article deals in the following type of Intellectual Property:
Like any other property right intellectual property also provides protection to the owner of the property, the only difference is that the property is intangible and the protection provided is time bound.
The right to be rewarded from the protection of moral and material interests that result from authorship of literary, scientific or artistic work is listed down in article 27 of Universal Declaration of Human Right (UDHR).
Industrial design Includes Patents protection for inventions, trademark and geographical indications
copyright law covers protection for literary work such as novels, articles or for plays and artistic work such as paintings, drawings and sculptures.
It is not necessary that all intellectual property needs registration for protection, some of the intangible properties procure protection instantaneously with their inception.
The following table will establish which type of IP requires registration and which of the following obtains it with its completion.
Patents: New inventions that can be product, processes, apparatus or any new use of known products
Copyright: Copyright protection is provided for anything that is
Trademarks: Trademark protection is provided for
Trade Marks: Trademarks that are not registered are protected under common law principles
Copyright: Although copyright
Trade secret: Trade secret is something that is not to be revealed and hence, Protection Under Indian Contract act
Design: Design protection is provided for the aesthetics of the product which can be either 2-D or 3-D in nature
Unregistered Design: Unregistered design no Protection is provided for a design that is unregistered
India is a part of the World Trade Organisation since 1995. As per the WTO, the member states should have a presence of some kind of IP protection in their national laws.
The Madrid Protocol - As per the Madrid protocol, the applicant can file a single application in the Indian trademark office, that will provide protection in multiple countries that are party to the agreement.
The Berne Convention - Under the following convention the member state recognise the copyright of the authors and artist from other states as well.
The Trademark Act,1999
The Patents Act,1970
The Designs Act,2000
The Geographical Indications of Goods(Registration and Protection) Act,1999
The Protection of Plants and Varieties and Farmers Right Act,2001
Intellectual Property protection encourages and enhances the creativity and human endeavour; which in turn helps in fuelling the economy.
In India in order to enjoy the monopoly right over most of your Intellectual property, it is important to register them with the Indian Intellectual property office.
For Instance: Patent provides exclusive right over the use of the invention.
Trademark law is only such Intellectual property that provides protection through both statutory law and common law in India.
A trademark is popularly known as the 'brand name' in the layman language. However, they are more than just a brand name. They are the visual symbol that can be words, name, device or combination of colours or numerals.
Trademarks are used to differentiate between the article or goods of commerce. Origin of trademark dates back to ancient times when craftsmen used to reproduce their signatures on their artistic works and products. Over the years, these marks have evolved into the system of trademark protection.
Section 2(zb) of the Trademark Act defines trademark registration.
Trademark registration ensures that the owner of the mark has the exclusive right to use it to identify goods or services. The owner of the mark also has the right to authorise others to use the mark.
The term of trademark protection varies, but it can be renewed indefinitely upon payment of the renewal fees to the Trademark office. Trademark courts have authority to stop infringement and to enforce the right of the owner over the mark.
Trademark application lasts for 10 years from the date of filing application after which the owner of the mark can renew the application.
Trademarks can be one or a combination of words and numerals. They may consist of drawings, symbols or the shape of goods.
In some countries, a non-traditional mark may be registered for distinguishing features such as holograms, motion, colour and sound, smell or taste.
Copyright is an automatic right that not have a requirement of formal registration. Copyright protection is immediate and conferred to the expression of ideas when expressed in a tangible medium.
Example: Research papers, articles databases, sound recordings, etc. Anything that is creative work and is original obtains copyright protection without any other additional formalities.
Copyright in literary, musical, artistic and dramatic work lasts for the creator's lifetime and an additional 60 years. A copyright work can use the mark © followed by the creator's name and the date to indicate when the work was created.
While copyright registration is not mandatory, it is recommended.
There are different types of works which are protected under copyright law, such as pictures, music, photographs, jingles and computer software. The requirement is simply that the work should be original; this means that it should be generated anew rather than being picked up from somewhere.
Mere ideas are not protected under copyright law, only the expression of those ideas can obtain copyright protection.
However certain technical ideas can sometimes be protected under patent law.
Literary Work including computer programs
Copyright law grants 5 kinds of exclusive right to the owner of the work:
1. Temporary: Copyright protection is a time-bound protection that can only be obtained for 60 years. This is the only duration during which the owner of the work can enjoy his monopoly right over the way work
2. Fair Use: Fair use has not been clearly defined through a set of rules and regulation in the copyright act. Fair-use is decided by the court on a case to case basis and hence this is the greatest limitation known in the copyright act.
3. Protects expression and not the work: The protection to the work of author and artist limited to the way they are expressed rather than the work itself being protected from being plagiarised.
A patent is a grant of immunity to the invention that is provided by the government in exchange for complete disclosure about the working of the product or process.
It is an exclusive right that is granted to the owner of the patent for a period of 20 years. Introduction of the patent system was done to create a balance between the interest of the inventor and technological advancement and interest of the society.
Section 2(1)(j) of the Indian patent act defines invention as a new product or process that comprises an inventive step and is capable of Industrial application.
Here, a new product or process means that the invention must be non-obvious for the person who is skilled in the art.
The invention must not be an advancement of something that is already known or involves laws of nature. The invention must have the capability of being used in certain industry.
The invention must complete all of the above requirements to be considered invention under Indian patent law.
The applicant or joint applicants can file their patent application with an appropriate patent office. Normally the invention can be registered with the patent office where the inventor or the applicant resides but under certain circumstances, the application can be filed based on the place of business.
The appropriate office once decided for any proceedings under the Patent Act shall not ordinarily be changed. The four patent offices are located at Kolkata, Mumbai, Delhi & Chennai.
Patent Office, New Delhi Branch
The States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttar Pradesh, Uttaranchal, Delhi and the Union Territory of Chandigarh
Patent Office, Mumbai Branch
The States of Maharashtra, Gujarat, Madhya Pradesh, Goa and Chhattisgarh and the Union Territories of Daman and Diu & Dadra and Nagar Haveli
Patent Office, Chennai Branch
The States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and the Union Territories of Pondicherry and Lakshadweep.
Patent Office, Kolkata Main Branch
The rest of India.
The term of every patent application is 20 years from the date the application is filed with the patent office. The date of filling is considered from the date a provisional or complete specification is filed with the patent office.
For international patent application the date of filing will be, the date the first application was filed in the patent office. The protection received with patent registration will cease to exist once the prescribed period expires or if the applicant does not pay the patent maintenance fees.
The essential purpose of design registration is to promote and protect the industrial element present in the design of the products in different fields of industries.
A Design refers to different features of shape, configuration, pattern, ornamentation or composition of lines or colours that are applied to any product. It can be 2-D or 3-D in form.
In design registration the design is solely judged by the eye of the examiner, the principle of construction does not play any part in deciding whether it will obtain protection or not. Designs are applied for a wide variety of products linked with different industries like handicrafts, medical instruments, housewares and architectural structures.
An industrial design is primarily for aesthetic features of the products.
Any person or the legal representative can apply separately for the registration of a design. An application can also be filed through an agent in such a case a power of attorney is required to be filed.
For a design to obtain registration it should:
Intellectual Property management in India has become a lot easier as Indian laws are conforming to the international law hence maintaining one's property at the national and international level has been made easier.
In 2016, India released a comprehensive National IP policy that had the primary focus on building awareness regarding intellectual property in small and micro companies and firms. This policy has helped India becoming attuned with the world's attitude towards Intellectual property.