Ipr for Smes

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Intellectual Property Rights

An

Overview

Presented by

Poorvi Chothani, Esq.

LawQuest, Mumbai

www.lawquestinternational.com


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Copyright 2008 LawQuest.All rights reserved.

Word Intellectual Property Organisation (WIPO),

World Trade Organization (WTO)TRIPS

Paris Convention for the protection of Industrial Property

Patent Co-operation Treaty (PCT)

Budapest Treaty

All Signatory countries need to ensure Intellectual Property Rights (IPR) Protectionwithin their jurisdiction.

IntellectualProperty


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Relevant Indian Laws*

The Patents Act, 1970

The Copyright Act, 1957 The Trademark Act, 1999

The Designs Act, 2000

The Information Technology Act, 2000

*As amended from time to time and with theirsupporting rules.

http://www.ditto.com

G
http://www.bridgew.us/library/ipr/index.cfm


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IPRs - An Exclusive, Time Bound, Right Over

A Creation

Copyrights

Trademarks

Patents

Designs

Trade Secrets

Data

Geographical Indications

Domain Names

http://news.sawf.org/Bollywood/27828.aspx


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Emerging Technologies

Digitization

Electronic distribution

The Internet

Nanotechnology

Bio-technology

Move from physical assets

to intangible assets



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Effect of Emerging Technologies

Innovation

Mobile Technology

Electronic Storage Devices- iPods, iPhones, Smart Phones

Growth of new industriese.g. BPO

Efficiency

Savings

Prolific Publishing Opportunities (specialized websites,blogs, portals)

Customer Centric AdvertisingSMS and Voice Advertising,

search engine advertising


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IPRand Business

How To Protect Your Brand What Makes A Good Trade Mark

What Can A Brand Consist Of Selective Patent Protection

How Long Does IP Protection Last

How To Protect The Design Of Goods

The Difference Between Registered AndUnregistered Designs

The Benefits Of Registered DesignProtection

http://www.wendellrodricks.com/fashion.htm
http://tanishq.co.in/index.htmlhttp://tanishq.co.in/index.html


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Trademarks

A Trademark is a means of identification ofgoods or services, a symbol which anorganisation or person wises the consumer toidentify with its goods or services as

opposed to that of the competitor

Registration of Trademarks is governed byThe Trademarks Act, 1999

Protects logos and brand names, and mayalso apply to a distinctive way of stitching,pattern, trade dress, etc.

T

http://www.indiatrademarks.org/


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Trademarks and Service Marks

A Trademark` May Consist Of One or a Combination of the following:

A Stylized Word

Invented Word or Logo

Letter or Signature Numeral, Brand, Heading, Label

Name Written In A Particular Style

The Shape Of Goods

Trade Dress the 1999 amendment protects shape of goods andcombination of colour

The Trademark to be registered should not be deceptively similar to anexisting mark of another person and not be expressly prohibited under the

Act.

T


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The intellectual property rights like logos, names and labels are

protected by Trademark Law

Protection of Logos
http://tanishq.co.in/index.html


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Trademarks and The Internet

Domain NamesImportance Of Maintaining Similarity

Global Impact Of Trademarks

Domain Name DisputesClaimants Reliance On Trademark Ownership Misdirection Of Search Engines

Dilution Of Famous MarksMalafide Use, Parody And Commentary

Trademark Infringement And/Or Passing Off (Misrepresentation) In

Multiple Jurisdictions


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Duration ofa Trademark The present term of registration of a

trademark is ten years, which may be

renewed for further periods of tenyears on payment of prescribedrenewal fees.

Failure to use a registered trademark

for a continuous period of five yearsmay result in cancellation. http://www.ditto.com/


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Copyright Subsists In

Artistic Works

Original Literary

Computer SoftwareOriginal Literary

Computer Software

Dramatic Work

Musical Works

Artistic Works

CinematographicFilms

C

http://www.ritukumar.com/

Photographs

Sound Recordingsetc

Dramatic Work

Musical Works

CinematographicFilms

Photographs Sound Recordings

etc.


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Copyrights

Copyright is an exclusive right

granted to the author of an original

work for a limited period of time withthe right to exploit that right.

C


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Bundle of Rights

Copyright gives the author of a literary, dramatic or musical work, theright to:

Reproduce the work in any material form including the storing of it in any

medium by electronic means Issue and Distribute Copies

Perform the work or Communicate the work

Make Films or Sound Recordings

Make Translations and/or Adaptations and all the above rights for suchadaptations

Publicly Display the Work Transfer any of these rights, either as a bundle or individually to another

party

C


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Term of Copyrights

Copyright is granted for:

Literary Works: 60 years from the death of the author (From the calendar yearfollowing the year of death)

Broadcaster Rights: 25 years from the year following the first broadcast;

Photographs and cinematographs, sound recordings, 60 years (From the calendaryear following the year of publication) .

Copyright is subject to certain limitations

Statutory Licensing Fair Use Exceptions

Compulsory Licensing

C


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Copyright and Emerging Technologies

Traditionallycopyright wasintroduced to protect printedmaterial

The legislature and the courtsstruggle to keep up astechnology changes and new

media emerge.


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Digitization of Traditional Copyrightable

Material

Wall papers

Mobile content

Music, video, images downloads fromthe internet

Video streaming (MTV overdrive, abroadband internet video-on-demand service)

Blogs

Podcasting

Subscription digital music stores-itunes and mtvs urge

Tivo


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Copyrights and Emerging Technologies

Copyright protection for software

Patentability of embedded computer programs with technicaleffect

Patent protection for software in the united states Version recordings and remixes (after two years of original

sound recording)

Peer to peer downloads

iTunes, YouTube

Rampant plagiarism


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Copyright Notice

Copyright 2010 LawQuest. All rightsreserved.

or

2010 LawQuest. All rights reserved.

This copyright notice must be placed in

such way as to give reasonable notice of theclaim to copyright.

C

http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339
http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339http://www.coroflot.com/public/individual_file.asp?from_url=true&sort_by=1&portfolio_id=591469&individual_id=76339


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Designs under the Designs Act


New or original, not previously published or

used in any country

Relate to features of shape

Configuration, pattern or ornamentation appliedor applicable to an article

Features should appeal to and should be judged

solely by the eye

Design must appear and should be visible on the

finished article, for which it is meant

Should not include any Trademark or property

mark or artistic works as defined under the

Copyright Act, 1957

D


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Patent Protection

Protects inventions

Aninvention means a new product orprocess involvingan inventive step and capable of industrial application(S. 2(1)(j))

Granted to Innovative, Novel Products and Processes

Designers may be able to patent new, inventive and usefuldevices.Artistic creations cannot be patented andtherefore patents are not widely adopted by designers from

fashion industry.

Inventions by Buck Weimer and CSIRO which controlodours and body temperature respectively in garmentshave been successfully patented in the US

http://www.colorjewels.com/
http://www.colorjewels.com/http://www.colorjewels.com/


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Indian Patent Applications

Patent Applications for:

inventions originating in India; or

involving an Indian resident inventor

must first be filed in India, unless a foreign filing license has

been granted by the Indian Patent Office


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Patents - Some Special Provisions

Compulsory licenses for export of medicines to countries

which have lack of infrastructural or production capacity for

meeting public health emergencies.

In case of Infringement - Only civil remedy of injunction,

damages, and accounts for profits.


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Penalties

Imprisonment up to 2 years or with fine or with both. Amount of fine is notspecified.

Unauthorized claim of patent rights - fine up to Rs.1,00,000.

Wrongful use of words, "patent office" - imprisonment for a term up to 6

months, or with a fine, or with both.

Refusal or failure to supply information - fine up to 10,00,000.

Furnishing false information knowingly - imprisonment up to 6 months orwith fine or with both.

Offences by companies the company as well as every person in charge ofand responsible to, the company shall be liable.


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Patented Diamond SettingUSPTO

Need to change to show some industrialdesigns from the USPTO.gov site

U.S. Patent Mar 20, 2007

US D538,700 S


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Data Privacy and Protection

No Specific Statute

Existing legislation provides limited protection

Information Technology Act - limited protection against certaintypes of data misuse or computer offences involvingunauthorized access to data on computers and networks

E.g. hacking, damage to computer source code, virus introduction Civil and criminal remedies available


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Going Forward

Creativity and Innovation areImportant for Growth

It Is Essential To Protect And ToEnforce Ensuing Intellectual PropertyRights

Necessary To Increase Awareness Of

Rights and Penalties for Infringement
http://www.tanishq-jodhaa-akbar.com/ja_ornaments_zoom1.asp


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Significant Provisions

Inalienable moral rights Waiver

Concept does not apply to computer software

Work For Hire

Compulsory Licensing

Version Recordings

Broad fair use exceptions Non-commercial personal use deemed as fair use and does not constitute

infringement.


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SignificantProvisions

Patents Joint Owners

Consent

Accounting

Rights

Infringement Responsibilities

Computer Programs andbusiness methodsper se not

patentable

Protect Computer Programs astrade secrets

Controller of Patents

First to File vs. First toInvent

Compulsory License

Research and ExperimentalUse


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Assignment of IP Rights

Of Copyright

Territory

Term

Lapse Consent

Of Patents

Joint Owner Needs Consent of other owner (s) to assign rights

Valid only if in writing and registered in India


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Examples - IPR Violations

Infringement of a trademark,

copyright, patent or other right

Passing off

Unlicensed use of a trademark orcopyrighted work

Data theft, identity theft and mail

fraud

Purchasing counterfeitmerchandise

Software, Book, CD and DVD

piracy

T

http://www.abc.net.au/science/news/stories/s1610919.htm


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Enforcement

In India, the enforcement system for IP rights includes: Civil remedies

Criminal penalties

Settlement out of court without trail

Compensatory damages

No punitive damages

Registration of copyrights

Criminal prosecution in trademark and copyright and in certaincases for patents, but not in designs cases


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Contact Details

522 Maker Chambers V

221 Nariman Point,

Mumbai400021, India.

Tel: +91 22 6615 6555

Fax: +91 22 2287 2080

Website:www.lawquestinternational.com

Email id: [email protected]

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