CONCEPT OF

INTELLECTUAL PROPERTY RIGHTS

PRESENTED BY

Rupendra K Porwal B.A., B.Com., FCS, LL.M (University of Manches

ter) Managing Partner

RallyMark Legal, Advocates and Legal Consultants,

Premier Building, 9 Shahnajaf Road, Lucknow-226001

Website: www.rallymarklegal.com Mob: 80520 45000, 9838597775E-Mail: rupendraporwal@rallymarklegal.com, porwal_acs@yahoo.com

Intellectual Property(“IP”)IP includes rights relating to literary, artistic, dramatic and scientific works-performances, photographs and broadcast- scientific discoveries-industrial designs–trade marks and commercial names.(WIPO)

1.

Definition of IP Rights(“IPR”):• Means protection over INTANGIBLE things

such as ideas, inventions, signs and information.

• IPR is distinct and separate from the property rights in tangible goods.

For example: Letter s written by late Princess Diana to Major Hewett.

Areas of IPR :

• Patent;

• Trade Marks;

• Copyrights;

• Designs Rights; and

• Geographical Indications.For brevity, we will discuss Patent, TM and Copyright

ONLY.

Justifications for protection of IP Rights:

Patent- An Incentive to invest in research and development

of new products. Pharmaceutical Companies An Incentive to disclose information to the public which

would have been otherwise remained secret.

Trade Marks- It encourages the traders: To manufacture and sell high quality products. M To disclose information to public about attribute of the

products. To Protect creator from likely undercut from the

competitors who have not invested in creation of TM.

Continued

Copyright- Justified on the basis of Author’s natural right over

the creation of produced through application of substantial amount of labour, skill and judgment.

Necessary to protect and reward the creativity.

Necessary to create an atmosphere conducive to creativity.

Essential to motivate others to carry out creative works.

Patent is granted only for scientific and technical inventions.

A patent is limited monopoly, which is granted in return of for disclosing the information.

The disclosed information should be capable of being used by a person skilled in the art.

Patent is granted for a period of 20 years from the date of priority date.

1. Patent:

Conditions for grant of Patent:

1. Patent must be capable of industrial application.

2. Subject matters which are not regarded as invention:

o Scientific theory, mathematical formula and computer program

o Frivolous or obviously contrary to well established natural laws;

o contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment;

o An invention which is not mere arrangement or re-arrangement or duplication of known devices.

o A method of agriculture or horticulture; ando Any process for the medicinal, surgical, curative,

diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals.

3. Novelty: An invention has to pass novelty test.

An invention shall be regarded as new if it does not form part of state of art.

4. Inventive Step- An invention is said to involve a inventive step if it is not obvious to a person skilled in the art.

For example- problem and solution approach.

2. Trademarks“Mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

Different types of Trademarks :o  Any name (including personal or surname )which

is not unusual for trade to adopt as a mark Ex. Kirloskar, Kale Consultants etc.

o An invented word or any arbitrary dictionary word or words, not being directly descriptive of the character or quality of the goods/service. Ex Airtel, Rallymark

o Letters or numerals or any combination thereof.

o Devices, including fancy devices or symbols

o Monograms o Colors ex. Orange Mobile;o Shape of goods or their packagingo Marks constituting a 3- dimensional sign. Ex Cup & Mug etco Sound marks when represented in

conventional notation- Airtel music.

What are the functions of a trade mark?

 o It identifies the goods or services and its

origin. Ex. Coco- Cola, Pepsi.o It guarantees its unchanged quality. Ex.

Toyotao It advertises the goods/services. Ex TATA.o It creates an image for the goods/

services. Ex Arrow, Lee and Flying Machine.

Classification of Goods and Services:o The goods and services are classified according

to the International Classification of goods and services.

oCurrently schedule IV of the Act provides different 45 classes of goods and services.

o There are 34 Classification for goods and 11 classification for services.

o Trademarks rights are given for a period of 10 years.

o Trademarks can be renewed perpetually.

Purposes serves by the TM ? • It identifies the actual physical origin of

goods and services. Ex. Champagne, Basmati, Cheddar Cheese.

• The brand itself is the seal of authenticity. Ex. Tata, Airtel, IBM, Microsoft, Nike, Rebook.

• It stimulates further purchase.• It serves as a badge of loyalty and

affiliation. Ex. Arrow, Louise Philip• It may enable consumer to make a life style

or fashion statement. Ex. Armani, Tomy HilFigure.

Copyrights:Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.

“Copyright protects the expressions and not the ideas”

Copyright subsists throughout India in the following classes of works:

• Original literary, dramatic, musical and artistic works; • Cinematograph films; and • Sound recordings.

Exceptions to the Copyright protection:

Some of the exemptions are the uses of the work :

• for the purpose of research or private study, • for criticism or review, • for reporting current events, • in connection with judicial proceeding, • performance by an amateur club or society if the performance is

given to a non-paying audience.

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Period for protection of copyright.oThe general rule is that copyright lasts for 60

years. o In the case of original literary, dramatic, musical

and artistic works the 60-year period is counted from the year following the death of the author.

o In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication.

oPerformer’s rights subsist for 25 years. oThe Broadcaster’s rights subsist for 25 years.

Misc Provisions for IPROwnership of IPR:1. Created by an individual and group of

individuals;2. Created during the term of employment;

and3. Created by an appointed Independent

party/agency.

Assignability:4. All IPR are freely assignable.5. Assignment should be done by a well

defined agreement.

Opportunities for Professionals:

New area of practice, still at nascent stage. Comprehensive and clear legislations. Simple and transparent process. Swift grant of IP rights.

Thanks once again!