Intellectual Property Rights and Patents

Property:

Any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation. that the owner has a right to consume, sell, rent, mortgage, transfer, exchange or destroy it.

Property refers to something which can be bought and sold.

No commercial value means no property.

Intellectual Property Law BasicsThere are three distinct types of property that individuals and companies can own: Real Property refers to Land or Real estate.

Personal Property refers to specific items and things that can be identified such as Jewelry, cars and art work.

Intellectual Property refers to Property which is creation of mind or intellect (property of human creativity) including literature, advertising slogans, songs, or new inventions.

Intellectual Property

Property that is result of thought, namely intellectual activity is called Intellectual Property.

In some foreign countries, it is referred to as industrial property.

Many of the rights of ownership common to real and personal property are also common to intellectual property.

Intellectual property can be bought, sold and licensed.

It can be protected from theft or infringement by others. Nevertheless, there are some restrictions on use.

Ex: Book.

Types of Intellectual Property

Trademark (for mark used in trade).

Copyright (for creative/artistic works/software).

Patent (for inventions).

Trade secret (for information of commercial importance).

Trademarks and Service marks Trademark or service mark is a word, name, symbol or

device used to indicate the source, quality and ownership of a product or service.

Ex: REEBOK for shoes and STARBUCKS for restaurant service.

There are two types of symbols associated with trademarks. They are ® and ™. ™ indicates that a trademark application has been filed for

that particular mark, but trademark is not yet granted.

Trademark ® indicates that the trademark is registered.

it Can write at any place along with the word, No strict placement rule exists.

Letters and words: A word or other groupings of letters is the most common type of mark.

Examples include: APPLE GOOGLE COCA-COLA IBM

Pictures or drawings:Pictures or drawings of a character or scene are often used as trademarks or service marks.

Combination: A trademark might be a combination of letters and a design, such as:

SlogansSlogans from advertising campaigns are also used as trademarks. Example slogans which have strong trademark rights attached to them are:

Product shape (Design):

Sound marks Nokia Yahoo yodel

Smell Plumeria scent in US in 1990.Term: initial registration is for 10 years, but can be renewed indefinitely.Registration: trade mark registry having its head office at Mumbai. details at www.ipindia.nic.in-->TrademarksRelevant ministry in India: Ministry of commerce and industry.

Service Mark

Airtel

KFC

SBI

Copy right:

“copy rights are a set of exclusive rights granted by law to the creators and producers of form of creative expressions such as literary, musical and cinematographic works”. Books, songs, plays, jewelry, movies, sculptors, paintings

and choreographic works are all protectable. An original work which is protected by copyright bears the

symbol © . The best forms of copyrights are authored and edited books,

or audio and video cassettes, which cannot be reproduced without the permission of the person (author, editor or publisher) who holds the copyright.

Copy right:

Incase of patents and trade secrets, protection of the basic idea is granted but incase of copyright, protection is possible only on the expressed material (printed, painted, tape recorded, video recorded or expressed in any other form E.g: computer software.

Time limit of protection is author’s life and 70 years after the authors death.

Registration: registration of copyrights, New Delhi. www.copyright.gov.in Relevant Ministry in India: Ministry of Human Resource

Development.

Examples

Patent

“A Patent is an exclusive right granted by the government to the original inventor/developer/researcher of an invention, which prohibits others from making, using or selling that invention”.

Types:Utility patentsDesign patentsPlant patents

Utility patents which are the most common patents and which cover useful inventions and discoveries such as type writer, the automobile etc.

Patent

Design patents which cover new, original, and ornamental designs for articles such as furniture.

Plant patents which cover new and distinct asexually reproduced plant varieties such as hybrid flowers or trees.

Term: Time limit of protection: 20 years for Utility, Design and 14 years for plant.Details www.ipindia.nic.in/patents

Relevant Ministry in India Ministry of Human Resource Development

Trade secret

A trade secret consists of any valuable business information that, if known by a competitor, would afford the competitor some benefit or advantage.

A classic example of a trade secret is the formula for the soft drink ‘Coca-Cola’. No registration. No time limit. No Territorial limits. No fee.Registration: India at present does not have any law to protect undisclosed information. However, WTO regulations require member countries to protect trade secrets.

International Bodies

International Trademark Association WIPO Berne Convention for the Protection of Literary and

Artistic works Madrid Protocol Paris Convention North American Free Trade Agreements General Agreement on Tariffs and trade.

International organisations, agencies and treaties.

There are a number of international organisations and agencies that promote the use and protection of intellectual property.They are INTA (international trademark association): INTA is a not-for-profit international association composed chiefly of

trademark owners and practitioners. More than 5000 trademark owners and professionals in more than 190

countries belonging to INTA, together with others interested in promoting trademarks.

It offers a wide variety of educational seminars and publications, including many worthwhile materials available at no cost on the internet.

www.inta.org. Located at 655 third avenue, 10th floor, New York, NY 10017-5617

(212/642-1700).

WIPO World intellectual property organisation was founded in

1883. it is a specialized agency of the united nations whose

purposes are to promote intellectual property throughout the world.

it administer 24 treaties dealing with international property, including the Paris convention, Madrid protocol, the trademark Law Treaty, and the Berne convention.

More than 180 nations and members of WIPO. WIPO headquartered in Geneva, Switzerland. www.wipo.int

Berne convention for the protection of Literary and Artistic Works.

The Berne convention was created in 1886 under the leadership of Victor Hugo to protect literary and artistic works.

It has more than 160 member nations. The US became a party to the Berne convention in 1989. It is administered by WIPO and is based on the percept

that each member nation must treat nationals of other member countries like its own nationals for the purpose of copyright (the principle of “national treatment”).

Madrid Protocol

The Madrid protocol came into existence in 1996. It allows trademark protection for more than 70 countries,

including all 27 countries of the European union, by means of a centralized trademark filing procedure.

The United States implemented the terms of the protocol in late 2003.

This treaty facilitates a one-stop, low-cost, efficient system for the international registration of trademarks by permitting a U.S. trademark owner to file for international registration in any number of member countries by filing a single standardized application form with the USPTO, in English, with a single set of fees.

Paris convention

It was designed to address trademark protection in foreign countries in 1883

It was adopted to facilitate international patent and trademark protection

It is based on the principle of reciprocity so that foreign trademark and patent owners may obtain in a member country the same legal protection for their marks and patents as can citizens of those member countries.

It is administered by WIPO.

National American Free Trade Agreement (NAFTA). The NAFTA came into force into effect on January 1,

1994, and is adhered to by the United States, Canada, and Mexico.

The NAFTA resulted in some changes to U.S. trademark law, primarily with regard to marks that include geographical terms.

General Agreement on Tariffs and Trade (GATT). GATT was concluded in 1994 and is adhered to by most

of the major industrialized nations in the world. The most significant changes to U.S. intellectual

Property law from GATT are that non-use of a trademark for three years creates a presumption the mark has been abandoned. and

the duration of a utility patent is now 20 years from the filing date of the application (rather than 17 years from the date the patent issued as was previously the case).

Evolutionary Past:

The historical background of IP is divided into two periods.1. Ancient Times2. Modern TimesAncient times: Signatures on paintings and creations. Substantial and identifiable patterns and particularly in

Architectures, paintings, jewellery, Dresses etc. Rewards and monopolies granted by emperors. Stamping of jewellers‘ initials on jewellery made by them

(still followed by local jewellers). Concept of copy rights came only after invention of printing

press.

Evolutionary Past:

In 1474, there was IP existed in Venice a decree (order of law) on the protection of inventions.

The first English patent was granted to Giocopo Acotio in 1565 for a new type of furnace.

In 1594 Galileo was granted a venetian patent for an irrigation machine.

There are even records of actions taken by jeweller named Cludio vom creutz in nuremberg between 1593 and 1604 for violation of his patent rights relating to polishing of gemstones. The infringer was imprisoned, had to pay penalty by way of costs and was banished from the city.

Evolutionary Past:

Modern times: modern patents originated in Europe where European

sovereigns commonly awarded “letters patent” to favoured inventors.In the modern times, The first patent was granted in North America by the

Massachusetts General Court to Samuel Winslow in 1641 for a novel method of making salt.

George Washington signed the first united states patent Grant on July 31, 1790.

The first U.S. patent laws were enacted by congress in 1790 as part of the constitution.

Evolutionary Past:

Patent system in India was introduced by British Government in 1856.

The Indian patent and Designs Act, 1911 (2 of 1911) first enacted under the management of controller of patents with a patent term of 14 years.

Initially, the patent Act, provided a term of 7 years for pharmaceutical, agro chemical and food products and 16 years for other categories.

The patent Act (39 of 1970) came into force on 20th April 1972.

What constitutes Infringement?

Any reproduction, use , distribution, performance, etc. of the work without the permission of the owner.

An identical or substantial similar reproduction is also covered

Infringement – Damages - Injunction

Remedies for Patent Infringement

• A suit can lie in the District or High court ,• It may issue an injunction either to prevent the infringer from any further use & award damages to the patent owner or will pay the patent owner royalties for further use.

Remedies for Trademark Infringement

A suit can lie in District or High court

• Punishment extends from 6 months to 3 years• A permanent bans on

engaging in commercial activities

Remedies for Copyright Infringement

A suit can lie in the district court or in a high court u/s 63 of the copyright act, 1957

Punishable with imprisonment upto 3 years and fined as per the claims.

COPYRIGHT CLAIMS ON THE BASIS OF UNDERLYING ARTISTIC WORKS

Ritika Limited v. Ashwani KumarRitika Limited v. Nina Talukdar

Ritika Limited v. Sajid Mobin