Objectives:

An overview on intellectual property rights in India.

To understand the Introduction and History of Intellectual property rights
To know and elaborate the Nature and scope of intellectual property rights such as
Intangible rights over tangible rights, coexistence of various forms of rights, right to sue, benefits of acquiring intellectual property rights, doctrine of exhaustion and finally the strength of intellectual property rights.
To study different Types of intellectual property rights such as
Patent, trademark, Geographical indications, copyright, industrial designs, trade secrets.
Concluding with the importance of intellectual property rights and the need of IPR in the present advanced technology.

INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights (IPR) has been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. IPR provide certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation.

There are several types of intellectual property protection like patent, copyright, trademark, etc. Patent is recognition for an invention, which satisfies the criteria of global novelty, nonobviousness, and industrial application. Although it’s an intangible property, intellectual property can be far more valuable than a company’s physical assets.

Intellectual property is an example of competitive technology and advancement and as a result, it is fiercely guarded and protected by the companies that own the property. Intellectual property infringement occurs when a third party engages in an unauthorized use of the property.

Legal protections for most intellectual property expire after some time; however, for some

(e.g., trademarks), they last forever. IPR is prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity. Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty.

HISTORY:

The modern concept of intellectual property developed in England in the 17th and 18th centuries. The term “intellectual property” began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world’s legal systems.^[8] The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively,^[13] firmly establishing the concept of intellectual property.

INTELLECTUAL PROPERTY RIGHTS:

Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time.

NATURE AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS

Intangible rights over Tangible Property:

Tangible property is literally anything that can be touched and includes both real property and personal property and stands in distinction to intangible property. Intangible property refers to an item of value that cannot be touched or physically held. These assets can be held by both individuals and corporations. The main essential that made Intellectual property distinct from other various forms of property is the nonphysical feature i.e., intangibility.

Coexistence of various forms of rights:

As we know that there are various forms of intellectual rights such as patents, copyright, industrial design etc…the main thing about such rights is that being of different conceptual nature they can still co-exist. For instance, a photograph can get copyrighted as well as get patented. A design of any good can be secured by the design act as well it can be secured by the trademark.

Right to Sue:

The individual who owns the IPR such as patent, trademark, copyright has a sort of property which he can use as per his will within the prescribed framework and can restrict any person from utilizing it without consent, and if he finds any infringement of his right he can take action as per law in return to which he is entitled to get the compensation as well.

BENEFITS OF ACQUIRING INTELLECTUAL PROPERTY:

Protection of IP may result in

The increased market value of business: through licensing, selling or commercializing protected products or services IP can generate income for business. Ideas to assets: IP can help to convert creative ideas into commercially successful products and services. And IP will increase export opportunities for the business.

Doctrine of Exhaustion:

Doctrine of Exhaustion basically refers to the termination of intellectual property rights when the holder of the rights, sell his rights to another and his right will lay off and he will lose the control over the property. The first free consent will led to the exhaustion or ending of the right. The rule having its basis from conception of movement of goods by permission of owner but it cannot be used twice in case of same commodity. Even the right to confine foster movement has terminated as the individual holding the right has hitherto gained his portion by the conduct of placing goods for sale firstly in the market.

Strength of IPR:

Intellectual Property Right is on the path of development by travelling at rapid pace, in continuation of its growth, the technical advancement is taking place with a speedy approach with covering all sphere of human conducts. The scientific and technological aspect has been introduced in to ambit of IPR and also its sphere of conservation has been enlarged. To talk about the latest added items we have Plant Diversity Protection, Bio Patents, Software Copyrights etc. these are some of the latest addition in IPR. The significance and quality of IPR has been framed systematically and it can be observed at all the levels.

By striking the right of balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.

TYPES OF INTELLECTUAL PROPERTY RIGHTS:


COPYRIGHT:

Copyright touches our lives on a daily basis. Whether you read a book, watch a film, transfer music, or take a photo, copyright issues are ever-present. The basis for copyright protection stems directly from the U.S. Constitution. The Framer’s believed that securing the exclusive rights of authors to their writings for limited periods would “promote the progress of science and useful arts.

TO get protection under copyright three basic requirements have to be fulfilled. They are:

Original: Work must be original, independent and it should not be copied.

A Work of Authorship: To qualify as a work of authorship for the purposes of copyright protection, a work must be a product of creative expression that falls under a category of copyrightable subject matter

Fixed: To meet the fixation requirement a work must be fixed in a tangible medium of expression

Copyright gives exclusive right to sell, publish and reproduce, any literary, musical, dramatic, artistic or architectural work created by the author. Thus, the kinds of works which are covered by copyrights are innumerable and include books, stories, novels, poems, plays, newspapers, magazines, advertisements, movies, computer programs, databases, musical compositions, songs, choreography, videos, paintings, drawings, photographs, sculpture, architecture, maps and technical drawings.

PATENT

A patent is an exclusive right granted for an invention. Government authority will issue a license and grants a title for a period, and the person will have an exclusive right to exclude others from making, using or selling his inventions.

Who can apply? Individuals as well as organizations can apply for patent, if they have something invention they can
approach the patent office and give them the details about the product or process and get protection for their
property for a fee.

Why such right is given?

An individual will invest years of extensive resources and time in his research to fulfill all the requirements for developing something. Therefore he would like to be compensated for his efforts. For his invention the law will give him such rights and an inventor will decide as to who is allowed to produce, sell or import his invention in those countries where he own a valid patent.

TYPES OF PATENT:

UTILITY PATENT: In this patent the functional aspect of patent is protected i.e., how the invention works. The subject matter includes new and useful machine, process, compound or any improvement of existing machine, process or compound. These patents can be further divided into electronic, chemical, mechanical or any other field depending on the invention.
DESIGN PATENT:

It refers to patent on appearance, shape or configuration of the object. The design must be an integral part of that object.

PLANT PATENT:

As the name says, it refers to patent to protect new and different varieties of plant.
LEGAL RIGHTS:

It is a statutory right of the patentee for his new inventions which can be categorized as new process or product patent.

PRODUCT PATENTS:

This patent is a right given to a person to prevent third parties from making, using, offering for sale or selling

patented products

in India. Also, the patentee can thwart the third parties from importing the patented

product without permission in India.

PROCESS PATENTS:

This is a Right to prevent third parties from using the patented process, offering for sale or selling the

product obtained by the

patented process

of India. Also these rights can be enforced against third parties

involved in importing the product in India.

TRADEMARK

It is 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 a shape of goods, their packaging and combination of colors.

Simply to put it may include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packing or combination of colors or any such combination.

QUALIFICATION: being its capability to distinguish the goods or services of one person from that of another.

INTENTION:

Main intention behind a unique trademark is that the consumer can recognize the manufacturer and the product quality and the fame with the specific mark of goods or service providers in case of services.

It ensures the customers that goods are of certain quality and type. Trademark is an important means to protect the good will and reputation of a business.

USES:

Trademark identifies the owner of the product

EXAMPLE:

Types of Trademarks include:

Brand names like Apple, Google, Nike and Adidas

Product names like Amul, Dabur, Micromax and Horlicks

Company logos like Cisco, dell, Twitter and Nokia

Slogans like Capital One’s “what’s in your wallet?” and McDonalds “I’m lovin it”

When a consumer looks at a new product with a particular symbol he can easily understand that the particular
product belongs to that company. It will increase the trust of the consumer as well

Which trademark shall not be used?

If it frauds the public or causes confusion

If there is any matter to hurt religious susceptibility, obscene or scandalous matters.

INDUSTRIAL DESIGNS

An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may consist of threedimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color. In a legal sense, an industrial design constitutes the ornamental aspect of an article.

The owner of a design patent or an industrial design that’s registered has the rights to stop third parties from the following:

♦ Selling articles that have a copy of the design

Making articles with a similar design
Importing articles that bear a design that’s a copy of the original one.

♦

Industrial design protection covers a color, shape, surface pattern, line, or configuration of an article that increases or produces aesthetics and improves the appearance of a design, whether it’s two-dimensional or three-dimensional.

Protection rights last for a period of 10 years and can be renewed one time for an extra period of five years. In order
for a design to qualify for protection,

♦ it must be non-obvious,

♦ visible on the finished article,

♦ applicable to the functional article,

♦ And have no prior disclosure of publication of the design.

In today’s market, design play a very important role in the visual appearance of an article or a product as these days’

people get more attracted to the design or appearance of the product and tend to buy the best design which grabs

their attention as the visual appearance of the product makes it more appealing, attractive, and distinct from others

GEOGRAPHICAL INDICATION

A geographical indication (GI) is a sign used on products that have a specific geographical origin and possess

qualities or a reputation that are due to that origin. In order to function as a GI, a sign must identify a product as
originating in a given place.

Geographical indications and appellations of origin are 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 the place of origin of the goods.

Geographical indications are used to indicate the regional origin of particular goods, whether they are agricultural products or manufactured goods; provided that those goods derive their particular characteristics from their geographic origin. Any producer who meets the standards set by the GI owner can use a GI. The registration of

geographical indications confers certain rights on the registered proprietor and the authorized user and they can
institute suit for infringements of geographical indications.

EXAMPLES:

# Basmati Rice # Agra Petha # Darjeeling Tea # Bikaneri Bhujia # Kanchipuram Silk Saree # Alphanso Mango #
Nagpur Orange # Malabar pepper # Banaganapalle Mangoes etc.,

Section 18 of the act provides that the registration of a geographical indication shall be for a period of 10 years and shall be renewed for a period of another 10 years on an application made in the prescribed manner and within the prescribed period and subject to the payment of the prescribed fees.

TRADE SECRETS

A trade secret is a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers. The scope of trade secrets is virtually unlimited. It is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks date back to ancient times when artisans used to put their signature or “mark” on their products.

Trade secrets are intellectual property (IP) rights on confidential information which may be sold or licensed. In
general, to qualify as a trade secret, the information must be:

♦ commercially valuable because it is secret,

♦ be known only to a limited group of persons, and

♦ Be subject to reasonable steps taken by the rightful holder of the information to keep it secret, including the use of confidentiality agreements for business partners and employees.

♦ The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to honest

commercial practices by others is regarded as an unfair practice and a violation of the trade secret
protection

Companies should take preventive measures to protect trade secrets against theft or misappropriation, including:

Non-disclosure agreement (NDA): employees and business partners should sign a non-disclosure agreement that
prevent them from disclosing a company’s confidential information

EXAMPLE:

♦ KFC’s secret blend of 11 herbs and spices.

♦ Coca-Cola’s recipe for their signature drink.

♦ Google’s search algorithm

♦ McDonald’s Big Mac “special cause”

CONCLUSION:

The framework of IPR clearly showcases the administration of Intellectual Property and it is multidimensional undertaking and calls for various working schemes and strategies that need to be taken along with the law of the nations, global treaties and exercises. As the scope of IPR is very broad every kind of IPR needs to be managed separately with application of knowledge. In every aspect of human society whether it is Law, technology, science, finance, economics, Intellectual Property is having its implication from every aspect that enables the human society to run smoothly. IPR is basic necessity to be a part of local as well as global competitive trade as without dissemination of IPR knowledge and implementation, creating the innovative environment is really impossible. India is having all the resources in terms of available raw material, cheap labor, innovative and creative dedicated manpower. No doubt that

India and other developing countries will definitely harness its proportionate share in global trade by exploration in
Intellectual Property Rights.

Intellectual Property Right In India