Intellectual Property Right Laws India

8/4/2019 Intellectual Property Right Laws India

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INTRODUCTION TO INTELLECTUAL

PROPERTY RIGHTS (IPR)

y Intellectual Property (IP) is defined as any "originalcreative work manifested in a tangible form that can be

legally protected

y Right associated with intellectual property which giveslegal protection is referred to as IPR.

y When we speak of IP rights, we refer to controlling the way IP is used, accessed or distributed.



Introduction to Intellectual Property Rights

(IPR)

y Patents, Trademarks, Geographical Indications andIndustrial Designs, Copyright, etc

y Protected through law like any other form of property

y Can be a matter of trade, i.e, it can be owned, bequeathed,sold or bought

y Intangibility and non-exhaustion by consumption



Why are IP assets important ?

y Its creation is both time and cost intensive

y Requires an assembled trained workforce for its creation

y

Requires building of goodwill through advertisingprograms

y Generates customer loyalty

y Adds to commercial value of organization

y Its exploitation brings consistent additional profits to anorganization



Why IP infringements happen?

y Higher the R&D expense, higher the pricing premium andlarger is the menace of infringement

y Variant products developed by spurious sellers andsophisticated reverse engineers

y Method of funding the commercial research

y Over-engineering the product



International Purviewy India is a member of World Intellectual Property

Organization (WIPO)

y Department of Industrial Policy & Promotion : NodalDepartment

y India is a member of:

y Paris Convention for the Protection of Industrial Property of 1883y Berne Convention for the Protection of Literary and Artistic Works

of 1886

y Patent Cooperation Treaty (PCT)



International Purview (contd.)y India is also a member of the World Trade Organization

(WTO)

y Compliance with the obligations contained in the TRIPS Agreement and amended/enacted IP laws

y Bilateral cooperation agreements (MoUs) have been

entered into with UK, France, USA, Japan and EuropeanPatent Office



Structure of IP Offices in India



IP- Duration of Term of Protection

y Patents (20 years)

y Trademarks (10 years + renewals)

y

Copyrights in published literary, dramatic, musical, and artistic works(Lifetime of author +60 years).

y Copyright in photographs ,cinematographic film, sound recordings (60 years from year in which it was published)

y Broadcast reproduction right-(25 years from the beginning of the

calendar year next following the year in which the broadcast is made.)y Industrial designs (10 years+ renewal permitted once for 5 years )

y Trade-secrets and know how collectively proprietary technology.



IP adds value at every stage of the innovation and

commercialization process

Literary / artistic

creation

Invention

Financing Product Design

Commercialization

Marketing

Licensing

Exporting

Patents /

Utility Models

Copyright

Industrial DesignsTrademarks

Trademarks,

Ind. Designs,Geo. Indications

All IP rights



Domestic Laws related to IPR

y The Copyright Act 1957y The Patents Act 1970y The Trademarks Act 1999y The Designs Act 2001

y The Patents Rules 1972y The Copyrights Rules 1958y The Design Rules 2000y The Trade Rules 2001y The Geographical Indications Act 1999y The Semiconductors Integrated Circuits Layout-Design

Act, 2000y The Information Technology Act 2000



Domestic Laws related to IPR (contd.)

y Department of Industrial Policy and Promotiony Concerned with legislations relating to patents

y Intellectual Property Appellate BoardResponsibilities:y IP Legislations

y Copyright is protected through Copyright Act, 1957, as amended in1999 administered by the Department of Higher Education

y Protection of test data for obtaining marketing approvals



Indian Copyright Act:y Copyright may subsist in creative and artistic works (e.g.

books, movies, music, paintings, photographs, andsoftware) and give a copyright holder the exclusive right to

control reproduction or adaptation of such works for acertain period of time (historically a period of between 10and 30 years depending on jurisdiction.

y Paris Act of 1971 of the Berne Convention

y Rules defined in Articles 1 to 21 along with Appendix inconstitution of Berne Convention



5 Exclusive Rights of a Copyright ownership

y Section 14 Copyright Act,1957

y

To fix information in any tangible formy To reproduce copyrighted work

y To sell, rent, lease or otherwise distribute copies

y Perform and display copyrighted work

y

To prepare derivatives of a copyrighted work.



Types of Copyright Infringement

Direct Infringement It is wholesale reproduction and distribution of Copyrighted works

It occurs when someone knowinglyencourages infringing activity

Contributory Infringement

When for financial benefit the operator in spiteof his ability to control and checkinfringements deliberately restrains fromchecking the users from committing such acts-

Vicarious Infringement



y Sections 54 to 62 deals with civil remedies for infringement of copyright.Civil remedies include injunction, damages and accounts, delivery of infringing copies and damages for conversion.

y Costs: The costs of all parties in any proceedings in respect of theinfringement of copyright shall be at the discretion of the court.

Legal remedies-Copyright infringements

There are three types of remedies against copyright infringement

Civil Criminal Administrative



Copyright InfringementCivil Remedies:

Damages

Account of profit

Delivery of infringing copies Damages for conversion

Criminal Remedies:

Imprisonment of the accused or imposition of fine or both

Seizure of infringing copies

A dministrative remedies: Administrative remedies consist of moving the Registrar of Copyrights to

ban the import of infringement is by way of such importation and thedelivery of the confiscated infringing copies to the owner of the copyrightand seeking the delivery.



Patents:y Any inventions, whether products or processes, in all fields

of technology without discrimination, subject to thenormal tests of novelty, inventiveness and industrialapplicability

y Article 27

y The filing of patent applications has increased from 4824in the year 1999-2000 to 28,882 applications in the year

2006-2007.

y The number of applications examined has gone up to 14,119in 2006-07 against the figure of 2824 in the year 1999-2000



Legal remedies for infringement of Patent

y Indian Patent Act-Section 108

y Injunction

y Damages or account of profitsy Infringing goods and materials be destroyed.

y Suit be filed in district court or high court havingoriginal civil jurisdiction





Geographical Indications:y Geographical Indications is a name or sign used on certain products

which corresponds to a specific geographical location or origin (e.g. atown, region, or country)

y 39 Geographical Indications products have been registered since

September, 2003.

y These include1. Darjeeling Tea,2. Chanderi Saree,3. Pochanpally Ikat,

4. Solapur Chaddar,5. Mysore Silk,6. Kullu Shawl,7. Bidriware, etc.



Geographical Indications of Goods -

Infringement

y Relief

In case false geographical indication is

established, it carries penalty with imprisonmentfor a term which shall not be less than six monthsbut which may extend to three years and with fine which shall not be less than fifty thousand rupeesbut may extend to two lakh rupees.



Designs:

y The designs entitled to protection are new and originaldesigns having aesthetic value which have not beenpreviously known or published in India or elsewhere.

y The filing of applications for Design has increased from2874 in 1999-2000 to 5372 in 2006-07.

y The number of applications examined has also gone up to

5179 in 2006-07 against the figure of 2067 in 1999-2000.

y The number of Designs registered has also increased from1382 in 1999-2000 to 4431 in 2006-07.



Design Infringement

y Relief

The judicial remedy for infringement of a registered design

recommended in the Act is damages along with aninjunction. Section 22(2) stipulates remedy in the form of payment of a certain sum of money by the person whopirates a registered design. A suit in the appropriatemanner for seeking the relief in the form of an injunction isalso recommended



Department of Industrial Policy and Promotion

(DIPP) and Intellectual Property Rights (IPRs):y DIPP is concerned with legislations relating to Patents, Trade Marks,

Designs and Geographical Indications. These are administeredthrough the Office of the Controller General of Patents, Designs andTrade Marks (CGPDTM), subordinate office, with headquarters atMumbai as under:

1. The Patents Act, 1970 (amended in 1999, 2002 and 2005) through thePatent Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.

2. The Designs Act, 2000 through the Patent Offices at Kolkata (HQ),Mumbai, Chennai and Delhi

3. The Trade Marks Act, 1999 through the Trade Marks Registry atMumbai (HQ) Chennai, Delhi, Kolkata and Ahmedabad.

4. The Geographical Indications of Goods (Registration & Protection) Act, 1999 through the Geographical Indications Registry at

Chennai.



Impact of Modernization

y Patentsy Filing of patent applications has increased

tremendously y Scope of patentability is questioned many a times

y Trade marksy Applications examined within a week

y Geographical Indicationsy 39 GI products have been registered since 2003



Current Issues

y Establishment of NIIPM at Nagpury Institute will perform training, education, research and think

tank functions.

y

Modernization of IP Officesy Awareness generation activities and accession to international

treaties & conventions

y Madrid Protocol on Trademarks

y ISA and IPEA y Seek recognition for the Indian Patent office



Conclusion and Future ahead

y Currently IPR laws are still not within the ambit of the Customs Laws.

y Protection of Undisclosed Information (Trade

Secrets) is still not within the ambit of CustomsLaws. Section 11(2) and has to be amended.

y Training courses to sensitize Customs officers

y Laws have to be amended relating to prevent illicitmanufacturing of counterfeit goods.



Conclusion and Future ahead (contd.)y Training courses to sensitize customs officers on

IPR and their role in enforcing IPR at borders to be

organized on a large scale

y Amendments needed under Copyrights Act, TradeMarks Act and other IPR laws to empower Central

Excise officers



Thank You..!!

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Intellectual Property Right Laws India