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INTELLECTUAL PROPERTY RIGHTS
MEANING:
Intellectual Property refers to those products that are primarily creations of the mind
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Intellectual Property Right encompasses a bundle of rights – the right to re-produce, distribute,
license, sell and exploit intellectual property in any legal fashion
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NATURE OF INTELLECTUAL PROPERTY RIGHTS:
Intellectual Property Rights are basically private rights
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Protection is granted to the rights holders not merely to convey an exclusive title for the creations
but also includes the right to reproduce, distribute and gain commercial returns for their
creations
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Intellectual property rights are now protected at the global level as well as within regional and
local frameworks of law
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According to The Convention Establishing the World Intellectual Property Organisation (WIPO)
intellectual property shall include rights relating to:
 Literary, artistic and scientific works
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*
Inventions is all fields of human endeavour
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Industrial designs
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Protection against unfair competition, and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic fields
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 Rights of artists, painters, musicians, sculptors, photographers and authors for copyright
in their works
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 Rights of performers, producers of phonograms (sound recordings) and broadcasting
organizations for a copyright in their work
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 Rights of manufactures and producers for Geographical Indications in relation to such
products and produce
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 Right of inventors to be granted Patents for their inventions
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 Rights of businessmen for protection of their Undisclosed Information of Technology and
management I
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DEFINITIONS OF VARIOUS CLASSES OF INTELLECTUAL PROPERTY:
INDUSTRIAL PROPERTY:
 The expression “industrial property” covers inventions and industrial designs
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PATENTS:
 A Patent is a document, issued, upon application, by a government office, or a regional
office acting for several countries, which describes an invention and creates a legal
situation in which the patented invention can normally only be exploited i
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 Patents are meant to protect technical innovation and require a formal application
process
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TRADEMARKS:
A Trademarks is a sign that individualizes the goods of a give enterprise and distinguishes them
from the goods of its competitors
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The term ‘geographical indication’ refers to the protection as a category of
IP, names and symbols, which indicate a certain geographical origin of a given product
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INDUSTRIAL DESIGNS
Industrial design refers to the creative activity of achieving a formal or ornamental appearance
for mass-produced items that, within the available cost constraints, satisfies both the need for the
item to appeal visually to potential consumers, and the need for the item to perform its intended
function efficiently
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 “Layout-design (topography)”means the three-dimensional disposition, however
expressed, of the elements, at least one of which is an active element, and of some or all
of the interconnections of an integrated circuit, or such a three-dimensional disposition
prepared for an integrated circuit intended for manufacture
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The Intergovernmental Committee of the WIPO on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore is charged with the task of delineating “the scope of subject
matter in respect of which the Member States wish to discuss the application of intellectual
property protection for the purpose of having a definition of the term ‘traditional knowledge
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SOURCES OF INTELLECTUAL PROPERTY RIGHTS:
 The major sources of intellectual property rights are customs and international
conventions and treaties
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 These treatises and conventions have created a complex web of rules and regulations,
which create standards for protection of IPRs to be incorporated in the national laws of
the Signatory States
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

Agreement on Trade Related Aspects
of Intellectual Property Rights, 1994
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Patent Treaties

•
•
•
•

The Patent Law, Treaty, 2000
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The Strasbourg Agreement, 1971
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Trademark Treaties

•
•

The Trademarks Law Treaty, 1984
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•
•
•
•

Industrial Design Treaties

•
•

The Nice Agreement, 1957
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The Hague Agreement on Industrial
Designs, 1925
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•

The Madrid Agreement on Indications
of Source, 1981
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Washington Treaty, 1984
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The Rome Convention on Related
Rights, 1971
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Convention for the Protection of
Producers of Phonograms Against
Unauthorised Duplication of their
Phonograms, 1971
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The Avoidance of Double Taxation
Treaties, 1979
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The Benelux Convention concerning Trademarks, 1962
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European Patent Convention, 1973
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The Patent Regulations of the Gulf Co-operation Council, 1999
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PATENTS, DESIGNS, TRADE MARKS,
GEOGRAPHICAL INDICATIONS OF GOODS

PASSING

OFF,

COPYRIGHTS

AND

Trademarks, patents and copyrights affect the growth and prosperity of almost every industry
particularly, the chemicals and pharmaceuticals industries, the printing, publishing and
entertainment industries, like the film and recording industries, and the computer software
industry
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It is important to know the rights and options as well as the legal formalities and requirements
necessary for protecting the products and ideas in the highly competitive market of today
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It consists of an exclusive right to manufacture the new article invented or manufacture an article
according to the invented process for a limited period
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Benefits of Patent
The chief benefit of patents is that they encourage inventions, on a commercial scale, and ensure
that ultimately the patented article or process is utilised for the general good of the people at
large
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A patent can be obtained only for an invention which is new and useful
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 A frivolous invention which claims anything obviously contrary to well established
natural laws
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 A method of agriculture or horticulture
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 Plants and animals in whole or any part thereof other than micro-organisms but including
seeds, varieties and species
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 A mathematical or business method or a computer program
PROCEDURE FOR OBTAINING A PATENT:
Who may apply:
An application for a patent for an invention may be made by:
 Any person claiming to be the true and first inventor of the invention
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Form of Application:
Every application for a patent shall be for one invention only and shall be made in the prescribed
form and filed in the Patent Office
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A patent shall cease to have effect on the expiration of the aforesaid period, unless it is renewed
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Patents of Addition:
The Controller of Patents may grant, on request, to the patentee of a main invention, a patent of
any improvement in or modification of the main invention as a ‘patent of addition
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A patentee shall have the exclusive right by himself, his agents or licensees to sell or distribute in
India the article or the substance from the date of approval granted by the controller in this behalf
till a period of five years or till the date of grant of patent
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Infringement of Patents:
Infringement of Patent consists in the violation of any of the exclusive rights of the patentee, viz
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Where the invention claimed is an article or substance, the rights of the patentee are infringed by
any one who makes or supplies that article or substance commercially for use by others
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Governing Act:
The law governing the designs is contained in the Designs Act, 2000
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What is a Design?
Design means only the features of shape, configuration, pattern, ornament or composition of
lines or colours applied to any article whether in two dimensional or three dimensional or in both
forms, by any industrial process or means, whether manual, mechanical or chemical, separate or
combined, which in the finished article appeal to and are judged solely by the eye; but does not
include any mode or principle of construction or anything which is in substance a mere
mechanical device and does not include any trademark
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1 accompanied by a fee of Rs
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A design may be registered in not more than one class and in case of doubt as to the class in
which a design ought to be registered, the controller may decide the question
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Aggrieved
person can appeal to the high Court against such decision
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Identification of Non-Registrable Designs
On the request of any person furnishing such information as may enable the controller to identify
the design and on payment of the prescribed fee of Rs
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TRADEMARKS
What is a Trade Mark?
A trade mark is a visual symbol in the form of a word, device, name, letter, numeral, brand,
heading, signature or label or any combination of these, applied or used in relation to goods so as
to indicate a connection, between the goods and some person who is the proprietor or registered
user of that trade mark
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Governing Act
The Trade and Merchandise Marks Act, 1958 provides for the registration, protection of trade
marks and for the prevention of the use of fraudulent marks on merchandise
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The new Act envisages to bring the existing law on trade marks in consonance with the
developments taking place worldwide on trade and industrial fronts
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It is to be
noted that a trade mark is something extra added to the goods for the purpose of indicating trade
origin
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A trade mark should be visible to the purchaser when purchasing the goods
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A ‘deceptively similar’ trade mark can never be called a good trade mark since the very purpose
of a trade mark is to distinguish one from the other
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By Action for Passing Off: In the case of unregistered marks or marks which are not registrable,
the only way they can be protected is by an action for passing off
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By Criminal Action against Infringer: Criminal action against the infringer is possible, whether
the mark is registered or unregistered, provided the two marks very closely resemble to each
other
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Effect of Trade Marks on Goods – Implied Warranty on Sale
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Registration of Trade Marks
A Register of Trade Marks is kept at the Head Office of the Trade Marks Registry in which all
Trade Marks registered are entered with the relevant particulars
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The qualifications for registration in Part B are less stringent than those required for Part A
registration
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What Trademarks are registrable:
A trade mark for being registered, must contain or consist of the following essential particulars:






The name of a company, individual or firm represented
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One of more invented words
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Any other distinctive mark
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 A mark the use of which would be contrary to any law for the time being in force
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 A mark comprising or containing any matter likely to hurt the religious sentiments of any
class or section of the citizens of India
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 A mark which is identical to or deceptively similar to, an already registered trademark for
same goods or goods of the same description
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PASSING OFF
What is Action for Passing Off:
In an action for Passing Off, the basic principle is that no one has any right to represent for trade
purposes, his goods or business as being the goods or business of somebody else
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This principle has been applied to many kinds of business, such as professional associations,
business of looking after children, or organising exhibitions or any kind of services and beauty
contests
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The three elements of passing off action are the reputation of goods, possibility of deception and
likelihood of damages to the plaintiff
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 Defendant has an independent or a concurrent right to use the trade mark
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 The plaintiff is debarred from suing the defendant because (a) he has consented to the
infringement, (b) by principle of estoppel, (c) inordinate delay in taking action after
knowledge of infringement
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It may be mentioned here that attempts on the part of manufacturers and traders in India, who
copy well-known trade marks of foreign companies, have in a large majority of cases been
scuttled by the courts in India
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Patel vs
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COPYRIGHTS
What is Copyright?
Copyright is a negative right which prevents the appropriation of the fruits of a man’s work,
labour or skill by another person
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Recently the protection has been extended to computer programmes, cinematograph films and
sound recording
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Governing Act
The Copyright Act, 1957 contains the law relating to copyright
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e
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15
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2000
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In case of a photograph: The copyright shall subsist for 60 years from the beginning of the
calendar year following the year of publication
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GEOGRAPHICAL INDICATIONS OF GOODS
Governing Act
Geographical indications in relation to goods help the consumer to identify the place of origin of
the goods and thereby the quality, reputation and other distinctive characteristics
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Any duplication of the geographical
indication tends to deceive the consumer as well as cause losses to the producer
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India had no specific law for this purpose the Geographical Indications of Goods (Registration
and Protection) Act, 1999 was coined
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Geographical Indication
As per the Act “geographical indication” in relation to goods means an indication which
identifies such goods as agricultural goods or manufactured goods as originating, or
manufactured in the territory of a country or a region or locality in the territory, where a given
quality, reputation or other characteristic of such goods is essentially attributable to its
geographical origin and in case where such goods are manufactured goods, one of the activities
of either the production or of processing or the preparation of the goods concerned takes place in
such territory, region or locality, as the case may be
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Prohibition of Registration

Following geographical indications are not registrable under the Act:
 The use of which would be likely to deceive
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 Which comprises or contains any matter likely to hurt the religious susceptibilities of any
class or section of the citizens of India
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 Which would otherwise be disentitled to protection in a court
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The registration of a geographical indication confers the following rights:
 To the authorised user exclusive right to the use of the geographical indication in relation
to the goods in respect of which the geographical indication is registered
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