INTELLECTUAL

PROPERTY RIGHTS

UJJWAL ANAND
SLS, PUNE
 WHAT IS INTELLECTUAL PROPERTY?

• Intellectual property (IP) refers to creations of the

mind, such as inventions; literary and artistic works;
designs; and symbols, names and images used in
commerce.
• IP is protected in law by, law their five components
are Patents, Copyright, Trademark, G.I, Industrial
Design which enable people to earn recognition or
financial benefit from what they invent or create. By
striking the right 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
• COPYRIGHT : Copyright is a legal term used to describe the rights that creators have
over their literary and artistic works. Works covered by copyright range from books,
music, paintings, sculpture and films, to computer programs databases, advertisements,
maps and technical drawings.
• PATENT : A patent is an exclusive right granted for an invention. Generally speaking, a
patent provides the patent owner with the right to decide how - or whether - the
invention can be used by others. In exchange for this right, the patent owner makes
technical information about the invention publicly available in the published patent
document.
• TRADEMARK : A trademark 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.
• INDUSTRIAL DESIGN :An industrial design constitutes the ornamental or aesthetic
aspect of an article. A design may consist of three-dimensional features, such as the
shape or surface of an article, or of two-dimensional features, such as patterns, lines or
color.
• GEOGRAPHICAL INDICATIONS :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.
 COPYRIGHT
The copyright act, 1957, along with the copyright rules, 1958, is
the governing law for copyright protection in India. Copyright
laws serve to create property rights for certain kinds of
intellectual property, generally called works of authorship.
Copyright laws protect the legal rights of the creator of an
‘original work’ by preventing others from reproducing the work
in any other way.
KINDS OF WORK COVERED UNDER COPYRIGHT

• Literary Works
• Dramatic Works
• Musical Works
• Musical Works
• Artistic Works
• Cinematographic Films and Sound Recordings
• Sound recordings.
• Ideas, concepts, principles, or methods of operation are not
subject to a copyright, but the original work that is authored
or created from such ideas or concepts may become subject
to a copyright.
Copyright Protection:
• There are four basic concepts central to the idea of copyright
protection as discussed here.
Idea vs. Expression:
• It is necessary to fix the boundary between the idea and the
expression contained in the original work. It is important to note
that copyright applies only to the expression and not to the idea.
But what constitutes the idea and not the expression can be a
source of great legal debate.
Originality:
• To get protection under copyright laws, it is important to establish
that the work originates from the author and is not a copied work.
Fixation: Copyright can exist only if the work is represented in a
material form. It is only if the book is written, the sound is recorded, or
the painting or sculpture is executed, that the work is eligible for
protection under copyright laws.
Fair Use:
• Copyright holders are deemed to consent to fair use of their work
by others. Fair use is not defined but can include use in the course
of news reporting, commenting, scientific research, etc.
COPYRIGHT TERMS:

In most cases, the term of copyright is the lifetime of the author plus 60 years
thereafter. There are some notable exceptions as given below:

1. Broadcasting organization has rights with respect to their broadcasts. The

term of this right is 25 years from the beginning of the calendar year
following the year in which the broadcast is made.
2. Performers have some special rights in relation to their performance.
These rights are for a period of 50 years from the beginning of the
calendar year following the year of the first performance.
3. In case of posthumous publications, the rights stand for a period of 60
years after the publication.
PROCEDURE
INFRINGEMENT OF COPYRIGHT:

• A copyright grants protection to the creator of an original work and

prevents such work from being copied or reproduced without consent.
The creator of a work can prohibit anyone from
• i. Reproducing the work in any form, such as print, sound, video, etc.,
• ii. Recording the work in compact disks, cassettes, etc.,
• iii. Broadcasting it in any form,
• iv. Translating it into other languages, and
• v. Using the work for a public performance, such as a stage drama or
musical performance.

The penalty for such an offence is imprisonment (minimum of seven days and
maximum of three years) and a fine (Rs. 50,000 to Rs. 2, 00,000). If the
offender pleads and proves that he/she used the infringing copy for personal
use and not in the course of trade, court is likely to take a lenient view of the
matter and impose the minimum fine of Rs. 50,000.
 WHAT ARE PATENTS
Patent, is a legal document granted by the government giving an inventor the
exclusive right to make, use, and sell an invention for a specified number of
years. Patents are also available for significant improvements on previously
invented items. The goal of the patent system is to encourage inventors to
advance the state of technology by awarding them special rights to benefit
from their inventions. Books, movies, and works of art cannot be patented,
but protection is available for such items under the law of copyright.

Patent law centers round the concept of novelty and inventive step (or lack of
obviousness). The right which they accord is to prevent all others, not just
imitators but even independent devisors of the same idea from using the
invention for the duration of the patent. The special potential of a patent is
accordingly that it may be used to prevent all others from including any form
of invention in their product and services. A patent thus poses serious
difficulties for its competitors. This is why patents are not freely available for
all industrial improvements but only what is judged to qualify as a patentable
invention.
 What is Patentable?
To qualify for a patent, the invention must meet three basic tests. First, it must be
novel, meaning that the invention did not previously exist. Second, the invention must
be non-obvious, which means that the invention must be a significant improvement to
existing technology. Simple changes to previously known devices do not comprise a
patentable invention. Finally, the proposed invention must be useful. Legal experts
commonly interpret this to mean that no patent will be granted for inventions that can
only be used for an illegal or immoral purpose.

Under the Indian patent law a patent can be obtained only for an invention which is
new and useful. The invention must relate to a machine, article or substance produced
by manufacture, or the process of manufacture of an article. A patent may also be
obtained for an improvement of an article or of a process of manufacture. In regard to
medicine or drug and certain classes of chemicals no patent is granted for the
substance itself even if new, but a process of manufacturing and substance is
patentable. The application for a patent must be true and the first inventor or the
person who has derived title from him, the right to apply for a patent being
assignable.
 PROCEDURE
In India as per the Patent Act of 1970, an application for a patent may be made
by the actual inventor of the invention, or an assignee of the right to make an
application or a legal representative of either. It is the person who first applies
for a patent who is entitled to the grant. A prior inventor of the invention who
applies subsequently will not get the patent as against the first applicant. A
person who has merely communicated the idea to another, who actually gave
practical shape to the idea and developed the invention, cannot claim to be the
first and true inventor. A foreign national resident abroad is not prohibited from
making an application and obtaining a Patent in India.
An application for a patent in the prescribed form along with the prescribed fee
should be filed in appropriate office of the patent office. An application is
required to be filed according to the territorial limits where the applicant or the
first mentioned applicant in case of joint applicants for a patent normally
resides or has domicile or has a place of business or the place from where the
invention actually originated. If the applicant for the patent or party in a
proceeding having no business places or domicile in India, the appropriate
office will be according to the address of service in India given by the applicant
or party in a proceeding.
 RELIEF AVAILABLE TO PATENTEE FOR
INFRINGEMENT
Section 108 (1) of the Patents Act, 1970 provides for the Reliefs in suit for
infringement. It states that – “The reliefs which a court may grant in any suit
for infringement includes an injunction (subject to such terms, if any, as the
court thinks fit) and, at the option of the plaintiff, either damages or an
account of profits.”
• The reliefs that are available to a patentee in suit for patent infringement
against an infringer are:-
• Permanent injunction;
• Temporary / Interlocutory injunction;
• Ex-parte injunction;
• Damages or an account of profits;
• Seizure, forfeiture or destruction of infringing products / goods and / or
materials and implements predominantly used in the creation of the
infringing products / goods
TRADEMARK
WHAT IS A TRADEMARK?

• A trademark is any sign that individualizes the goods of a given enterprise and
distinguishes them from goods of its competitors. Marketing of a particular good
or service by the producer is much better off as by trademark because
recognition becomes easier and quality is assured. The owner of the mark can
prevent the use of similar or identical signs by competitors if such marks can lead
to confusion. By this way similar low quality substitutes will be prevented from
replacing good quality ones. A trademark is a word or symbol or combination
thereof used by manufacturer or vendor in connection with a product or service.
The distinctiveness is maintained as well as sales are much smoother as people
are able to identify with that particular commodity or service.

• The Trade Mark Act, 1999 defines “well Known Trade mark” as a mark in relation
to any goods and services which has become so to the substantial segment which
uses such goods or receives such services that the use of such mark in relation to
other goods or services would be likely to be taken as indicating a connection in
course of trade or rendering of services between those goods or services and a
person using the mark in relation to the first mentioned goods or services.
Trademark is one of the areas of intellectual property and its purpose is to
protect the mark of the product or that of a service.
 TYPES OF TRADEMARKS
• Service Mark
• Collective Mark
• Certification Mark
• Trade Dress
SERVICE MARKS
• A service Mark is any word, name, symbol, device, or any combination used or
intended to be used in commerce to identify and distinguish the services of one
provider by others and to indicate the source of services. It is basically useful in
distinguishing one service provider from the other. Service Marks do not cover
physical goods but only the provision of services. Service marks are used to identify
a service, as Trademarks are used for protection of goods
• Service Marks are used in a number of day to day services some examples of them
are:-
• Management and investment services
• housing development services
• Advertising Promotional services
• sponsorship
• speed reading instruction
• Hotel and motel services
• Entertainment services rendered by individual , group or theatre.
• A service mark is generally adopted so that it can play a crucial role in marketing,
promoting and sales of a product or service, it also plays the role of referring to a
particular quality or standard for which the service mark is used.
COLLECTIVE MARK
• A collective Mark is one used by members of a cooperative
association, union or other collective group or other group or
organization to identify source the of goods or services. A collective
mark means a mark which is utilized for goods and services with
same characteristics which are to be traded by one or more person
acting jointly or legal entity for differentiation with other goods or
services of same kind.[
• There are two types of Collective Marks or legal entity for
differentiation with other goods or services of same kind. They are:-
• Collective Membership Mark These marks are not used to indicate
source of goods or services but they indicate that the seller is part of
a defined group.
• Collective Trademarks and collective Service marks These are used
to indicate the source. Such collective marks are used by a group to
indicate that the goods or services offered by each individual
member of the group are products or services of the collective.
• A collective mark is for use by the individual members of an
organization but is registered as a whole.
CERTIFICATION MARK
• A certificate is evidence or probative matter providing assurance that some
act has or has not been done or some event occurred or some legal formality
has been complied with.
• A certification Mark is a mark which indicates that certain qualities of goods
or services in connection with which the mark are used is certified. A
certification mark is thus defined in the Trademarks Act 1994, Section 50 as a
mark indicating that the goods or services in connection with which it is used
are certified by the proprietor of the mark in respect of origin, material, and
mode of manufacture of goods or performance of services, quality, accuracy,
or other characteristics.
• Registration of Certification Mark is done according to the Trademarks Act
1994. An important requirement for registration of certification mark is that
entity which applies for registration is “competent to certify” the products
concerned. Thus owner of certification mark must be representative of
products to which certification mark applies. An authorized user of a
certification Mark is expressly likened to a license of a trademark in specified
circumstances, namely unauthorized application of the mark to certain
material, prohibition of importation of infringing goods and order as to
disposal of infringing goods. A registered mark maybe assigned according to
registrar.
TRADE DRESS
Trade dress refers to combination of elements that make up the look, feel, or
environment of a product or business; the term can refer to individual elements of a
product or business image as well as to the image the combination of those
elements creates as a whole. Trade Dress is non functional physical detail. Trade
Dress may include a few important features like:-
• Packaging
• Size
• Shape
• Colour
• Colour Combination
• Texture
• Graphics
• Design
• Placement of words and decorations on a product
• Particular Sale Technique
Trade Dress can be mere coloring, surface ornamentation or a general appearance, a
design patentable invention has to be a shape or appearance of a specific article
which is more than a surface appearance, which relates to the overall appearance of
the article and which is different enough to be considered unobvious. Trade Dress
may be protected under Lanham Act. It is advisable for every manufacturer to
protect his trade dress as it can be easily copied
PROCEDURE
PROCEDURE
TRADEMARK INFRINGMENT
INDUSTRIAL DESIGN
Industrial Design protection is provided for a shape, configuration, surface
pattern, colour, or line (or a combination of these), which, when applied to a
functional article, produces or increases aesthetics, and improves the visual
appearance of the design, be it a two-dimensional or a three-dimensional
article. As per Indian Law, under the Design Act of 2000, Industrial Design
protection is a type of intellectual property right that gives the exclusive right
to make, sell, and use articles that embody the protected design, to selected
people only. Protection rights are provided for a period of 10 years. They can
then be renewed once for an additional period of 5 years. Design protection
provides geographical rights, like Patents and Trademarks do. To obtain Design
Protection in India, the same has to be registered in India.
THE PRE-REQUISITES FOR A DESIGN TO QUALIFY
FOR PROTECTION ARE AS FOLLOWS:

• It should be novel and original

• It should be applicable to a functional article
• It should be visible on a finished article
• It should be non-obvious
• There should be no prior publication or disclosure
of the design.
PROCEDURE
The application procedure for Design protection is fairly simple. The
Design office provides a paper filing option as well as an online filing
option. All designs are categorized as per the Locarno Classification for
Industrial Designs, and filing is done as per the class that pertains to
the design in question. An application is to be submitted to the design
office with the desired designs, with a classification code and a
description of the design. The application then goes through an
examination process, after which the applicant receives a
communication from the Design office regarding any objections, if
present. After rectifying the application based on the objections and
responding to the Design Office, the application will be granted if all
the requirements are met. Once granted, and if there is no objection
from any third party sources, the design is exclusive to the owner for
the time period mentioned above.
IMPORTANCE IN COMMERCIAL WORLD
Why should one look into filing for Industrial Design?

• The outer appearance of a product makes it visually more appealing and

attractive. This acts as a value-adding aspect, which in turn increases the
marketability of the product. This leads to the need to protect your
creation from third parties’ use, in order to prevent them from taking
advantage of your rights in this world of competition. In many cases, the
design itself becomes the identity of a brand. Some of the most famous
examples are Coca Cola’s contour bottle, the contours of the iPhone/iPod,
and the shape of the Volkswagen Beetle and the Mini Cooper.
• When a product’s design is protected, it stops illegitimate products from
destroying the brand’s efficacy and safety. Protection of industrial designs
also encourages creativity in the manufacturing and industrial sectors,
which leads to an expansion in commercial activities.
GEOGRAPHICAL INDICATIONS
Geographical indications means any indications which define the
goods as originating in the territory of a country or a region or
locality in that territory, provided a given quality reputation or
other characteristics of the product are attributable to its
geographical origin. this means that the geographical indications
has to indicate that a product of a particular origin has a certain
quality or reputation or some other characteristics, which is
essentially attributable to its geographical origin.
NEED FOR LEGAL PROTECTION OF GI

Given its commercial potential, legal protection of GI

assumes enormous significance. Without suitable legal
protection, the competitors who do not have any legitimate
rights on the GI might ride free on its reputation. Such
unfair business practices result in loss of revenue for the
genuine right-holders of the GI and also misleads
consumers. Moreover, such practices may eventually
hamper the goodwill and reputation associated with the GI.
 THE INDIAN GI ACT
• India has put in place a sui generis system of protection for GI with enactment of a law
exclusively dealing with protection of GIs. The legislations which deals with protection
of GI’s in India are ‘The Geographical Indications of Goods (Registration & Protection)
Act, 1999’ (GI Act), and the ‘Geographical Indications of Goods (Registration and
Protection) Rules, 2002 (GI Rules). India enacted its GI legislations for the country to put
in place national intellectual property laws in compliance with India’s obligations under
TRIPS. Under the purview of the GI Act, which came into force, along with the GI Rules,
with effect from 15 September 2003, the central government has established the
Geographical Indications Registry with all-India jurisdiction, at Chennai, where right-
holders can register their GI.
• Unlike TRIPS, in the GI Act does not restrict itself to wines and spirits, Rather, it has been
left to the discretion of the central government to decide which products should be
accorded higher levels of protection. This approach has deliberately been taken by the
drafters of the Indian Act with the aim of providing stringent protection as guaranteed
under the TRIPS Agreement to GI of Indian origin. However, other WTO members are
not obligated to ensure Article 23-type protection to all Indian GI, thereby leaving room
for their misappropriation in the international arena.
• The definition of GI included in Section 1(3) (e) of the Indian GI Act clarifies that for the
purposes of this clause, any name which is not the name of a country, region or locality
of that country “shall” also be considered as a GI if it relates to a specific geographical
area and is used upon or in relation to particular goods originating from that country,
region or locality, as the case may be. This provision enables the providing protection to
symbols other than geographical names, such as ‘Basmati’.
REGISTRATION
While registration of GI is not mandatory in India, Section 20 (1) of the GI Act states
that no person “shall” be entitled to institute any proceeding to prevent, or to recover
damages for, the infringement of an “unregistered” GI. The registration of a GI gives its
registered owner and its authorized users the right to obtain relief for infringement.
The GI Registry with all India jurisdictions is located in Chennai with the Controller-
General of Patents, Designs and Trade Marks is the Registrar of GIs, as per Section 3(1)
of the GI Act. Section 6(1) further stipulates maintenance of a GI Register which is to
be divided into two parts: Part A and Part B. The particulars relating to the registration
of the GIs are incorporated in Part A, while the particulars relating to the registration
of the authorized users are contained in Part B (Section 7 of the Act).
• A GI may be registered in respect of any or all of the goods, comprised in such
class of goods as may be classified by the Registrar. The Registrar is required to
classify the goods, as far as possible, in accordance with the International
classification of goods for the purposes of registration of GI (Section 8 of the Act).
A single application may be made for registration of a GI for different classes of
goods and fee payable is to be in respect of each such class of goods.
• In India a GI may initially be registered for a period of ten years, and it can be
renewed from time to time for further periods of 10 years. Indian law place certain
restrictions in that a registered GI is not a subject matter of assignment,
transmission, licensing, pledge, mortgage or any such other agreement.
 CASE STUDY – DARJEELING TEA

Tea is India’s oldest industry in the organized manufacturing sector and

has retained its position as the single largest employer in this sector.
Around 30 per cent of the world’s tea is produced in the country. India
is also the world’s largest consumer of tea. However, on the export
front India is facing huge competition from other key tea producing
countries, such as Kenya, Sri Lanka and China.
Darjeeling’ tea is a premium quality tea produced in the hilly regions of
the Darjeeling district West Bengal-a state in the eastern province of
India. Among the teas grown in India, Darjeeling tea offers distinctive
characteristics of quality and flavour, and also a global reputation for
more than a century. Broadly speaking there are two factors which
have contributed to such an exceptional and distinctive taste, namely
geographical origin and processing. The tea gardens are located at
elevations of over 2000 meters above sea level.
• Why Protect “Darjeeling Tea” as Geographical Indication

• An adequate legal protection is necessary for the protection

of legitimate right holders of Darjeeling tea from the
dishonest business practices of various commercial entities.
For instance, tea produced in countries like Kenya, Sri Lanka
or even Nepal has often been passed off around the world as
‘Darjeeling tea’. Appropriate legal protection of this GI can go
a long way in preventing such misuse.
• Without adequate GI protection both in the domestic and
international arena it would be difficult to prevent the misuse
of Darjeeling Tea’s reputation, wherein tea produced
elsewhere would also be sold under the Darjeeling brand,
causing damage to consumers and denying the premium price
to Darjeeling tea industry. The industry is now waking up to
the fact that unless Darjeeling Tea is properly marketed and
branded, the survival of the industry may be at stake and GI
protection along with stringent enforcement can go a long
way in helping the industry to improve its financial situation.
CONCLUSION

While the Tea Board has made strides in its quest for
international recognition of Darjeeling tea as a trademark,
recognition of Darjeeling Tea as a Geographical Indicator in
the international arena is still to be achieved, primarily due to
the fact that Article 23 of TRIPS gives good protection to
Wines and Spirits, but currently not for other products. The
lack of a multilateral system of notification and registration for
products like Darjeeling Tea which is available for wines and
spirits, is jeopardizing the international protection that would
offer adequate protection. It is there important for India i to
seek extension of GI protection to other products by
amending Article 23 of the TRIPS.
 Quantum of Punishment

Falsification or false application of a GI is punishable

with a minimum imprisonment of six months, which
may extend to three years and with a minimum fine of
fifty thousand that may extend to two lakh rupees.
Some examples of GI are Darjeeling Tea, Pochampalli
Saree, Chanderi Saree, Kanjeevaram Silk, Champagne
Wine, Scotch Whisky.
THANKYOU.