Property is something that individuals and companies can own. Broadly, the property is divided into: Tangible and intangible property. The word ‘tangible’ refers to something that has a definable physical form that can be touched, whereas, word ‘intangible’ refers to something that cannot be perceived by the senses. Further tangible property can be divided into two distinct types that is: Real property refers to land or real estate; Personal property refers to specific items and things that can be identified, such as cars, jewelry and artwork; and intangible property is intellectual property that is, refers to the fruits or products of human creativity, including literature, advertising slogans, songs, or new inventions.

Thus, the property which is the result of thought, named intellectual activity, is called intellectual property. In some foreign countries, intellectual property is referred to as industrial property. Intellectual property can be bought, sold and licensed. Similarly it can be protected against theft or infringement by others. Intellectual property law protects the results of human creative endeavor, by protecting the intellectual property against any infringement. Intellectual property protects rights to ideas by protecting rights to produce and control physical instantiations of those ideas. For example, if you were to purchase the latest best seller by Chetan Bhagat, you would be entitled to read the book or sell it or giving it away but you would not be entitled to make photocopies of the book and then sell those copies. Those rights are retained by the author of the book and are protected by the copyright law.

Intellectual property is a field of law that aims at protecting original ideas, the knowledge created through human effort in order to stimulate and promote further creativity. Authors who write books and musicians who compose songs would be unlikely to be engaged in further creative efforts unless they could realize the profit from their work. Also, pharmaceutical companies would not invest millions into research and developments of new drugs unless they could be assured that their invention would be enable them to recover these costs and develop additional drugs. Thus, not only the creators of intellectual property but the public as well benefit from protecting intellectual property. On other hand, if the owner of intellectual property is given complete and perpetual rights to his or her invention or work, the owner would have a monopoly and be able to charge excessive price for his work, which would harm the public. Intellectual property attempts to resolve these conflicting goals so that owners’ rights to reap reward of their effort are balanced against the public need for a competitive marketplace. For example, in India patent protection id provided for 20 years from the date of filing the patent application. Once the patent expires, the protection ends and the invention enter the public domain and anyone is free to produce and sell the product.

The concept of intellectual property can be traced back from 500 B.C.E. One of the first known references to intellectual property protection is, when chefs in

the Greek colony of Sybaris were granted year-long monopolies for creating particular culinary delights. There are at least three other notable references to intellectual property in ancient times—these cases are cited in Bruce Bugbee’s formidable work. The Genesis of American Patent and Copyright Law (Bugbee 1967). In the first case, Vitruvius (257–180 B.C.E.) is said to have revealed intellectual property theft during a literary contest in Alexandria. While serving as judge in the contest, Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others. The second and third cases also come from Roman times (first Century C.E.). Although there is no known Roman law protecting intellectual property, Roman jurists did discuss the different ownership interests associated with an intellectual work and how the work was codified—e.g., the ownership of a painting and the ownership of a table upon which the painting appears. There is also reference to literary piracy by the Roman epigrammatist Martial. In this case, Fidentinus is caught reciting the works of Martial without citing the source.

There were no institutions or conventions of intellectual property protection in Ancient Greece or Rome. From Roman times to the birth of the Florentine Republic, however, there were many franchises, privileges, and royal favors granted surrounding the rights to intellectual works. Bugbee distinguishes between franchises or royal favors and systems of intellectual property in the following way: franchises and royal favors restrict access to intellectual works already in the public domain, thus these decrees take something from the people.An inventor, on the other hand, deprives the public of nothing that existed prior to the act of invention (Bugbee 1967). One of the first statutes that protected authors’ rights was issued by the Republic of Florence on June 19, 1421, to Filippo Brunelleschi, a famous architect. This statute not only recognized the rights of authors and inventors to the products of their intellectual efforts; it built in an incentive mechanism that became a prominent feature of Anglo-American intellectual property protection. For several reasons, including Guild influence, the Florentine patent statute of 1421 issued only the single patent to Brunelleschi. The basis of the first lasting patent institution of intellectual property protection is found in a 1474 statute of the Venetian Republic. This statute appeared 150 years before England’s Statute of Monopolies; moreover, the system was sophisticated. The rights of inventors were recognized, an incentive mechanism was included, compensation for infringement was established, and a term limit on inventors’ rights was imposed.

American institutions of intellectual property protection are based on the English system that began with the Statute of Monopolies (1624) and the Statute of Anne (1710). The Statute of Monopolies granted fourteen-year monopolies to authors and inventors and ended the practice of granting rights to “non-original/new” ideas or works already in the public domain. In contrast to patent institutions in Europe, literary works remained largely unprotected until the arrival of Gutenberg’s printing press in the fifteenth century. Even then there

were few true copyrights granted—most were grants, privileges, and monopolies. The Statute of Anne (1710) is considered by scholars to be the first statute of modern copyright. 

In the landmark case Miller v. Taylor (1769), the inherent rights of authors to control what they produce, independent of statute or law, was affirmed. While this case was later overruled in Donaldson v. Becket (1774), the practice of recognizing the rights of authors had begun. Various more recent international treaties like the Berne Convention treaty and the TRIPS agreement have expanded the geographic scope of intellectual property protection to include most of the globe.

READING MATERIAL

The term intellectual property is usually thought of as comprising four separate, but often overlapping, legal fields i.e.; trademarks, copy rights, patents and trade secret. However, the primary legislation regulating intellectual property in India are; The Copyright Act 1957, The Trade Marks Act 1958, The Patents Act 1970, The Geographical Indications (Registration and Protection) Act 1999, The Design Act 2000, The Semiconductor Integrated Circuits Layout-Design Act 2000.

1.TRADEMARKS AND SERVICE MARKSA trademark or service mark is a word, name, symbol, or device used to indicate the source, quality, and ownership of a product or service. A trademark is used in the marketing of a product such as ADIDAS for shoes, while a service mark typically indentifies a service such as CAFE COFFEE DAY for restaurant services. A trademark or service mark identifies and distinguishes the products or services of one person from those of others in same category. A trademark is a visual representation attached to goods for the purpose of indicating their origin. Trademarks provide guarantees of quality and consistency of the product or service they identify. Thus upon encountering the golden arches that identify a McDonald’s restaurant, consumer understand the Big Mac they purchase in Delhi will be the same quality as one purchased in Goa.

Section 2 (1) (m) of the Trade Marks Act 1999 defines a mark as, “mark includes a device, brand, heading, label, ticket, name, signature, word, letter, shape of goods, packaging or combination of colours or any combination thereof.”

Section 2 (1) (z) of the Trade Marks Act 1999 defines a service as, “service of any description which is made available to potential users, and includes the provision of services in connection with business of any industrial or commercial matters

such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information or advertising.

Section 2 (1) (zb) of the Trade Marks Act 1999 defines a trademark as, “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 the shape of goods, their packaging and combination of colours.”

Illustration: Sia goes shopping for weekly provisions. She picks up an attractive ‘Koor Koore’ packet of chips presuming it to be standard Pepsi Co. product ‘Kur Kure’. Little does she notice the spelling change on the packet of chips. When she opens the packet, she discovers stale sub-standard chips. Has Sia been duped? Does Pepsi Co. suffer a loss of reputation?

Yes, a consumer is said to be duped if he/she buys a commodity presuming it to have originated from the certain identified source, when actually it is not. Yes the reputation of Pepsi also takes a beating.

Therefore, in order to save the interests of the consumer and the trader it is said that a definite symbol which marks out the origin of goods from a definite source must be attached to the goods. Such a symbol is called trademark.

2.COPYRIGHTSCopyright is protection of original works of authorship fixed in any tangible medium of expression. Works that may be copyrighted include literary, musical, artistic, photographic, architectural, and cinematographic works; maps; and computer software. Copyright describes the rights given to creators for their literacy, musical and artistic works, such as novels and poetry, songs and musical scores, painting and sculpture. Other works protected by copyrights include films, choreography, architecture, advertisements, maps and technical drawings, computer programmes and databases.

Copyrights provide exclusive right to creators to use or authorize others to use their works. The creator of a work can prohibit or authorize its reproduction in various forms, including printing, recording, broadcasting, translation or adaptation. Copyright encourages human creativity. It provides economic rights to creators which allow them or their heirs to benefit financially from their work usually for a period lasting 60 years after the creator’s death. This provides not only recognition for their work but also incentives to create more. Copyright is available for original works; no judgment is made about the literary or artistic quality. However, certain works are not protectable by copyright, such as titles, name, short phrases or list of ingredients. Similarly, ideas, methods, and processes are not protectable by copyright. The ideas in literary works do not

need to be original. But the form of expression must be original creation of the author.

Illustration: Sameera has a brilliant idea for a movie. She invites Anusha over coffee and shares the idea with her. Anusha capitalizes on the idea and makes a movie called ‘Ingenuity’. Anusha has a copyright on the movie and Sameera cannot claim copyright of her idea.

The owner of a copyright has the right to reproduce the work, prepare derivative works based on the original work (such as sequel to the original), distribute the copies, and to perform and display the work. Generally, violations of such rights are protectable by infringement actions. But, some uses of copyrighted works are considered ‘fair use’ and do not constitute infringement, such as use of an insignificant portion of work for noncommercial purposes of a copyrighted work.

3.PATENTSInventions are protected by patents. An invention is a product or a process that provides a new way of doing something or offers a new technical solution to something. A patent is a grant form the government that permits its owner to prevent others from making, using, importing, or selling an invention. The domain or subject matter of patent law is the invention and discovery of new and useful processes, machines, articles of manufacture, or compositions of matter. There are three types of patents: first, utility patents, which are the most common patents and which cover useful inventions and discoveries (such as the typewriter, the auto-mobile); second design patents, which cover new, original, and ornamental designs for articles (such as furniture); third plant patents, which cover new and distinct asexually reproduced plant varieties (such as hybrid flowers or trees).

Patent protection is usually provided for 20 years from the date of filing the patent application. Once a patent expires, the protection ends and an invention enters the public domain available for commercial exploitation by others. This provides valuable information for other inventors as well as inspiration for future generation of researchers and inventors. This leads to further invention and innovation.

For an invention to be patentable it must be:

A new product or process,

Non-obvious, and

Useful and capable of industrial application.

Generally, patent law prohibits the patenting of an invention that is merely an insignificant addition to or minor alteration of something already known.

Moreover, some items cannot be protected by patent, such as pure scientific principles.

Illustration:

a. Sheila discovers that turmeric powder has medicinal properties and can cure blood pressure. As it is a mere discovery of a new property or new use of a known substance, Sheila will not get a patent for it.

b. Ramesh develops a new vaccine for cure of AIDS. He made an invention. He will get a patent for it.

4.TRADE SECRETSA trade secret consists of any valuable business information that, if known by a competitor, would afford the competitor some benefit or advantage. There is no limit to the type of information that can be protected as trade secrets; recipes, marketing plans, financial projections, and methods of conducting business can all constitute trade secrets. There is no requirement that a trade secret be unique or complex; thus, even something as simple and non technical as a list of customers can qualify as a trade secret as long as it affords its owner a competitive advantage and is not common knowledge.

If trade secrets were not protectable, companies would have no incentive to invest time, money, and effort in research and development that ultimately benefits the public. Trade secret law thus promotes the development of new methods and processes of doing business in marketplace.

Illustration: The ‘Yellow Chili’ chain of restaurants owned by Chef. Sanjeev Kapoor has some special recipes for their business. So the recipes will be protectable under trade secret protection.

5.GEOGRAPHICAL INDICATORSA need had arisen to protect agricultural, natural or manufactured goods, handicraft and industry goods like food stuff. The primary reasons for protection were to prevent unauthorized use of geographical indicators as well as promote goods bearing the Indian geographical indicators in the export market. As per the TRIPS Agreement, other countries were under no obligation to extend protection unless a geographical indicator is protected in the country of its origin.

A geographical indication is a sign used on goods that have a specific geographical origin. The goods (agricultural, natural or manufactured goods, handicraft and industry goods like food stuff) possess qualities or a reputation that are due to that place of origin. Since these qualities depend on the geographical place of production, a specific link exists between the products and

their place of origin. For example, ‘Darjeeling’ for tea of Darjeeling origin, ‘Kanjeevaram silk’ denotes the product from Kanjeepuram in South India, ‘Kolhapuri chappals’ from Kolhapur and ‘Alphonso mangoes’ from Ratnagiri.

Geographical indicators denote that the product originates from a particular place and the product has certain qualities or a reputation that are due to that place of origin whereas, a trademark is a mark used by an enterprise, in relation to goods or services, to distinguish them from others.

6.DESIGNSAn industrial design is the ornamental or aesthetic aspect of an article. The design may consist of 3 dimensional features such as the shape or surface of an article or two dimensional features such as patterns, lines or colours. Industrial designs make an article attractive and appealing and add to its commercial value. For that reason, they are protected.

An owner of a registered design is assured an exclusive right against unauthorized copying or imitation of the design. Protection generally lasts for an initial 10 years after which it can be renewed for another 5 years. This protection helps economic development by encouraging creativity in industry as well as in traditional arts and crafts. It also helps promote more innovative and aesthetically attractive products.

Illustration: Somya is the sole proprietor of Noodle Ltd. Noodle Ltd designs shoes, jerseys and other sports accessories for football players, cricketers and golfers. As a part of their annual celebrations they designed a ‘Universal Sport Shoe’ fitted for any sport. The shoe was specifically designed and used a patented technology which controlled sweat output. Noodle Ltd has a design registration on Universal Sport Shoe.

International Aspect of IPRsModule IV: Introduction to Intellectual Property Laws

READING MATERIAL

There are number of international organizations and agencies that promote the use and protection of intellectual property, such as;

International Trademark Association (INTA): It is a not-for-profit international association composed chiefly of trademark owners and practitioners. More than

5,000 trademark owners and professionals in more than 190 countries belong to INTA, together with others interested in promoting trademarks.

World Intellectual Property Organization (WIPO): It was founded in 1883 and is a specialized agency of United Nations whose purposes are to promote intellectual property throughout the world and to administer 24 treaties dealing with intellectual property, including the Paris Convention, Madrid Protocol, Trademark Law Treaty and Berne Convention. More than 180 nations are members of WIPO.

There are also a number of international agreements and treaties that affect intellectual property, such as:

Berne Convention for the Protection of Literary and Artistic works (the Berne Convention): The Berne Convention was created in 1886 under the leadership of Victor Hugo to protect literary and artistic work. It has more than 160 member nations. The Unites State became a party to the Berne Convention in 1989. The Berne Convention is administered by WIPO and is based on the percept that each member nation must treat nationals for purposes of copyright.

Madrid Protocol: The Madrid Protocol came into existence in 1996 and 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 filling a single standardized application form with the (USPTO) United States Patent and Trademark Office, in English, with a single set of fees.

Paris Convention: One of the first treaties or conventions designed to address trademark protection in foreign countries was the Paris Convention of 1883, adopted to facilitate international patent and trademark protection. The Paris Convention is based on the principle of reciprocity so that foreign trademark and patent owners may obtain in those member countries. Perhaps the most significant benefit provided by the Paris Convention is that of priority. An applicant for a trademark has six months after filing an application in any of the more than 170 member nations to file a corresponding application in any of the other member countries of the Paris Convention and obtain the benefits of the first filling date. The Paris Convention is administered by WIPO.

North American Free Trade Agreement (NAFTA): The NAFTA came 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 Unites Nations intellectual property law from GATT are that nonuse of a trademark for three years creates a presumption the mark has been abandoned and that the duration of a utility patent is now 20 years

from the filing date of application rather than 17 years, as was previously the case.