the emerging importance of ipr growing awareness eclipse of national boundaries harmonisation of...

The Emerging Importance Of IPR

GROWING AWARENESS

ECLIPSE OF NATIONAL BOUNDARIES

HARMONISATION OF LAWS

THE NEXT ECONOMY OF IDEAS

What Is WTO ?• Int. body dealing with rules of trade bet. Nations• governed by the agreements signed between nations• agreement on harmonizing commercial laws • Basic Principles :

- Non-discrimination between countries- Non-discrimination within a country- Gradual movement towards Free Trade- Predictability- Promoting Competition

FORMS OF INTELLECTUAL PROPERTY

COPYRIGHT

TRADEMARKS

GEOGRAPHICAL INDICATIONS

INDUSTRIAL DESIGNS

PATENTS

INTEGRATED CIRCUITS

UNDISCLOSED INFORMATION

What is Intellectual Property ?

Property created as a result of intellectual creative effort or commercial reputation and goodwill.

Basic Form : Intangible Territorial

Statutory/Common law Prov.’s

NATURE OF INTELLECTUAL PROPERTY

• IP IS AN INTANGIBLE PROPERTY

• SET OF RIGHTS

( Different set of rts. for diff. IPs)

- RT. TO EXCLUSIVE USER

- RT. TO PREVENT OTHERS

- RTS. ENCAPSULATED IN A TIME FRAME

- RT. TO ASSIGN, TO LICENSE

- INHERITABLE

BROAD SCOPE OF IP LAWS

NATURE OF THE PROPERTY

MODE/S OF ACQUISITION

NATURE OF RIGHTS CONFERRED

COMMERCIAL EXPLOITATION

ENFORCEMENT OF RIGHTS / REMEDIES AVAILABLE AGAINST

INFRINGEMENT

TRADE & SERVICE MARKS

WHAT IS A TRADE MARK

a mark used or proposed to be usedin relation to goods for the purposeof indicating a connection in the course of trade between the goods and some person having the rightto use the mark

TRADE & SERVICE MARKS

What is a MARK :includes a device brand

heading label ticket name signature word letter numeral OR any combination thereof

shape of goods, packaging, colour - TMA’99

Sound, Smell - also marks - NOT in India

FUNCTIONS OF A TRADEMARK

Traditional Role • distinguish the products of one manufacturer from those of another• indicate the source or origin of the goods• represent the goodwill of the manufacturer

TM as a part of the marketing mix• Guarantee of QUALITY• Guarantee of AUTHENTICITY• Create a feeling of TRUST• Aid to Branding

Some Famous Brands ( Trade Marks )

Mercedes Benz for vehiclesCoca Cola for beveragesIntel for computerCrocin for pharmaBournvita for food stuffMGM - roar of Lion for entertainmentTaj Hotels for hotelsNike for shoes501 Bar for soaps

STATUTORY REQUIREMENTS TO REGISTRATION

BROADLY

MARK MUST BE DISTINCTIVE ADAPTED TO DISTINGUISH MUST NOT CONFLICT MUST NOT DECEIVE NOT CONTRARY TO LAW MUST NOT BE SCANDALOUS / OBSCENE MUST NOT HURT RELIGIOUS SENTIMENTS

Rights of a trade mark owner :

• to use • to prevent others from using similar or deceptively similar marks• protection also extended to related classes• statutory protection

™

PASSING OFF

• UNREGISTERED TRADEMARK• IS A TORT • FRAUDULENT INTENTION IS NOT NECESSARY• MISREPRESENTATION NEED NOT BE DIRECT• BUT MUST BE MADE TO PROSPECTIVE CUSTOMER• INJURY - A FORESEEABLE CONSEQUENCE• ACTUAL DAMAGE / QUIA TIMET ACTION

CASES : KODAK V/S KODAK LEGO V/S LEGO IRRIGATION

A few instances of trademark disputes

Vaseline Vanildene Amrutanjan Amrutmanthan Godrej Goldage Double Bubble Rustom Ruston Rysta Aristo

Service Marks

Marks Which Are Capable Of Distinguishing Services

New Provision - 1999 TMA

InsuranceBankingHotelsLaundryEducationTransportResearch Laboratories

COPYRIGHT

MEANING OF COPYRIGHT : Right To

reproduce the work ( incl. Storing )issue copies of the workperform work in publiccommunicate the work to the publicmake translation

make adaptationsell or give on hire

COPYRIGHT

Copyright subsists in original

literary, dramatic, musical & artistic workscinematographic films sound recordingswhich are either first published in India, ..

COPYRIGHTS

Range Of Copyright Protection

Product Packaging Scenic Arrangement Paintings Sculpture Drawings ( maps,..) Engravings Photographs Architectural Works Computer Software Research Papers Computer databases Choreographic work

Some Important Concepts :

- No Copyright in ideas, themes,principles- Artistic Quality ?- Copyright subsists in an identical work - Rule : Creation must be independent- Term Of the Copyright : Life + 60 years- Author’s Moral Rights - Registration Of Copyright not a pre-requisite- Fair Dealing, Back-ups, Educational purposes

COPYRIGHTS

Designs Act A registered design includes

features of shape, configuration, pattern, ornament or composition of lines or colours,

Applied to any article

either in two or three dimensions or in both forms by any industrial processwhich in the finished article appeal to and are judged by the eye.

Important Provision of the Copyright Act, 1957

Sec 15 :

(1) Copyright shall not subsist in this Act in any design which is registered under the Designs Act, 1911.

(2) Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.

Geographical Indications

Protection Given To :

indications which identify goodsas originating from/manufactured ina particular territorywhere a given quality, reputation or

other characteristics of the goodsis essentially attributable to that region

Objective : Customers must not be misledMarking must not misleadNo DilutionEconomic prosperity

Darjeeling TeaBasmati RicePaithani SarisKolhapuri ChappalsScotch WhiskyRockford CheeseChampagne

Features Of A G I Statute :

No individual ownershipOwnership by association of persons

Registration Validity : 10 yearsNo assignment , licensing or mortgageUnauthorised use has Civil / Criminal liab.

Importance of a G I statute :Under Trips, protection only if reciprocal protection

Currently no specific Law in Force

PROTECTION OF UNDISCLOSED INFORMATION

BETTER KNOWN AS

TRADE SECRETS

Definition Of A Trade Secret

is an information which

is a SECRET

has been INTENTIONALLY treated as such

is capable of COMMERCIAL application

involves an ECONOMIC interest

Characteristics of a Trade Secret

• Concept of ‘sufficiently developed’

• No necessity of Novelty

• Inventiveness not a pre-requisite

• Important requirement => SECRET

• Exercise of Skill and Effort

• Desire of Confidentiality

Subject Matter of Trade Secrets

• Any formula, pattern or device or compilation of information which is used in one’s business and which gives the owner over competitors who do not know or use it.e.g. chemical compound, a process of manufacture, treating or preserving material, a pattern for a machine other other device or a list of customers, detailed manufacturing drawings, tolerance data, training materials, source code, etc.

Is Every Confidential Information A Trade Secret ?

An idea is usually not regarded as property

because the concept of property implies

something that can be owned and possessed to

the exclusion of others.

Some element of originality/novelty is necessary

for a claim of ownership in an idea or concept

Some qualifications on trade secrets• Nothing unlawful about seeking to learn about a

competitor’s products or processes provided no unlawful methods are employed

• Disclosure made in confidence

• Imposes liability not only on those who wrongfully misappropriate trade secrets by breach of confidence, but also in certain conditions, on others who might benefit from the breach

• Does not bar lawful reverse engineering

TS and PATENT any apparent conflict ?

Trade Secret

Exclusivity : if secret Ownership : by

possession

No protection against honest discovery

Unltd. duration of right

Patent

Exclusivity: Disclosure

Ownership : by State Duration : limited

Applies to Inventions Only

Enforced also against innocent

infringers