Intellectual Property Rights

WHAT IS INTELLECTUAL PROPERTY RIGHTS

• Someone who is responsible for a “creation of the intellect” such as an inventor, Author or originator creates intellectual property. Like tangible property , their creation has a value and, as with all property, it needs to be protected. Intellectual property rights give them this protection, as well as helping them exploit and control Their IP. Such a person is known as a ‘rights owner’ or ‘rights holder’. Intellectual property refers to creations of the mind ; inventions, Literary and artistic works and symbols, names, images, design used in commerce.

Classification of IPR Intellectual property can be characterised as the property

in ideas or their expression. Its a Creation of the mind, For example, a technological innovation, a poem, or a design. It protects the rights of individuals and businesses who have transformed their ideas into property by granting rights to the owners of those properties.

Intellectual property can be classified into the following four categories.

Patents. Trademarks. Copyrights. Goodwill.

PATENT Introduction: • According to Indian Patent Act 1970. A patent is the

form of a certificate granted by a government . Patent gives the inventor the right to exclude others from initiating, manufacturing, using or selling the invention in question for commercial use during the special period. Patent is an exclusive monopoly right. It is granted by government. Inventor make use of manufacture and market the invention. It is for a limited period of time.

Continued...The procedure for granting patents, the requirements

placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims defining the invention which must meet the relevant patentability requirements such as novelty and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others from making, using, selling, or distributing the patented invention without permission.

Who can apply for Patent?

• An inventor.• Person/company legally assigned by the

inventor.• legal representative of any inventor.• Either alone or jointly by above persons.

Patent Infringement Making, using or selling a patented invention

(product or process) without permission from the patent owner is Infringement.

• Infringement suit can be filed only after patent is issued (granted).

• Relief includes fine or account of profit.• Use for research purpose is not act of

infringement.

Trademark• According to Indian Trademark Act 1999. A

trademark is a brand or a part of brand that give legal protection because it is capable of exclusive appropriation. A trademark protects the sellers rights to use the brand name and/or brand mark. TM is an exclusive mark intended to differentiate the product of one seller with others. Word or symbol used by manufacturers to identify goods. It is a distinctive sign which is used to prevent confusion among products in the market place.

• Trademarks are commercial source indicators distinctive signs that identify certain goods or services produced or provided by a specific person or enterprise. Trademarks are especially important when consumers and producers are far away from one another.

Importance of Trademark Registration.

• Exclusive rights registered trademarks owners have exclusive right to use their marks in trading. They also have the rights to take legal action for infringement under the Trade Mark Law against others who use their marks without consent.

• Legal Evidence registration certificate issued by registrar office is a prime evidence of trademark ownership. A certificate of registration serves as an important document to establish the ownership of goods exported to other countries.

• Duration of Registration is valid for ten years from the date of application and may be renewed every ten years.

Trademark Infringement Trademark infringement is a violation of the

exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees.

• Infringement may occur when one party the “infringer” uses a trademark which is identical to a trademark owned by another party.

• An owner of a trademark may commence legal proceedings against a party which infringes its registration.

Copyright According to Indian Copyright Act 1957 .Copyright

is a legal term describing the economic rights given to creators of literary and artistic works, including the right to reproduce the work, to make copies and to perform or display the work publicly.

• Exclusive privilege to authors to reproduce, distribute, perform, or display their works.

• It is usually associated with civil law.• In the Copyright Act, there are provisions to treat all

forms of infringement of copyright as offences.

• copyright protects arrangements of facts, but it does not cover newly collected facts as such. Moreover, copyright does not protect new ideas and processes, they may be protected if at all by patents.

Copyright Infringement Copyright infringement is the unauthorized use

of works under copyright . It often refers to copying intellectual property without written permission from the copyright holder, which is typically a publisher assigned by the work’s creator.

• Infringing the copyright holder’s exclusive rights such as the right to reproduce, distribute, display the copyrighted work.

• Information are spread within copyrighted work.

Copyright Registration • Copyright registration is not necessary. • Copyright exists from the moment the work is

created.• However, registration can be beneficial. • Among other things, registration is necessary

before you can bring a lawsuit for infringement.

GOODWILL• Goodwill is an accounting concept meaning the value of

an asset owned that is intangible but has a quantifiable "prudent value" in a business for example a reputation the firm enjoyed with its clients. Goodwill is not acquired until such time as a trader commences to use his trade name or unregistered trade mark in association with the wares or services that he is marketing. The value of goodwill is tied to the fortunes of the business in terms of its profitability and cashflow and the value of the net tangible assets utilized in the business. The value of goodwill will therefore fluctuate with the performance of the business.

Goodwill is classified as commercial or personal.

• Commercial Goodwill:

Commercial goodwill refers to goodwill which is sellable and which will provide the investor/purchaser with future economic benefits. Since the economic benefit supporting the calculation of commercial goodwill is transferable to third parties, commercial goodwill is a valid consideration in the determination of value.

• Personal Goodwill:

Personal goodwill pertains to the favorable attitudes of customers, suppliers, etc., which are derived from the efforts of a particular individual in the business. In many cases, personal goodwill can be transferred to a potential purchaser through client introductions, and so on. In some cases, goodwill associated with a particular individual may also be secured using non-compete contracts, management contracts or other prudent business arrangements. In these cases, personal goodwill as it is transferable would be commercial goodwill.

LEGAL FRAMEWORK

• Legal problems :

A variety of legal problems arises in prosecuting internet fraud, These relate to the multiplicity of rules that exist in the various jurisdictions and the fact that many of the rules are complex, Nuclear and Contradictory .

• Court processes :

There are also numerous problems associated with conducting criminal trials in cases involving electronic fraud. The principal difficulties relate to the presentation of computerised business and accounting records to a court.

• Criminal proceedings undertaken :

Little information is available publicly concerning the judicial outcomes of cases involving interest fraud in the region as police and courts generally do not maintain records in such a way as to isolate the precise manner in which fraud offences are committed. As such, reliance has to be placed on anecdotal accounts, such as those described in the earlier review of the types of internet fraud incidents.

PENALTIES• A penalty is the punishment a person gets for

committing an offence• The Act sets out the maximum penalties for

each offence in section (24).• But the court can use its discretion about what

an appropriate penalty is.

• First conviction:– Category 1: Fine, prison up to 2 years or both.– Category 2: Fine, prison up to 1 years or both.– Category 3: Fine, community service, both

(community service should benefit the environment if possible).

• Second conviction:– Category 1: No change.– Category 2: Fine, prison up to 2 years or both.– Category 3: Fine, prison up to 1 year or both.

• The maximum amount of the fine may be put into the Government Gazette and changed from time to time to take account of inflation.

• When a court orders an offender to pay a fine, a part of the fine (no more than 1/4) may go to any person who helped to bring the offender to justice.

• But anyone who is in the service of the State cannot get this reward.

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