Oct 30, 2017
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Intellectual Property Rights in India

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While intellectual property law has evolved over centuries, it was not until the 19th century that the term intellectual property began to use, and not until the late 20th century that it became commonplace in the majority of the world. This article is all about intellectual property and intellectual property rights. A complex topic therefore explained in a simple term under Intellectual Property Meaning.

Intellectual Property Meaning

Intellectual property (IP) refers to creations of the intellect for which a monopoly is assigned to designated owners by law. The intangible products of a man’s brain are as valuable as his land, building, goods, money, belongings etc. it is quite different from real property or a formal property. In fiction, it is a property. Therefore called as intellectual property. The rights relating to the intellectual property however recognized by law as the subject matter of rights of various intangible or immaterial products is human intelligence, skills and labor. In short intellectual property is basically a creation of intellect or relates to intellect. Intellectual property rights are legal rights which govern the use of creations of the human mind and work.

Intellectual property rights (IPRs) thus granted to the creators of IP, and include trademarks, copyright, patents, industrial design rights, and in some jurisdictions trade secrets. Artistic works including music and literature, as well as discoveries, inventions, words, phrases, symbols, and designs can all protected as intellectual property.

The stated objective of most intellectual property law (with the exception of trademarks) is to “Promote progress.” By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive thus created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears as “absolute protection”.

With the trade related Aspects of Intellectual Property Rights (TRIPS) Agreement of World Trade Organisation (WTO), the intellectual property rights attained the authority to enforce the law internationally.

Intellectual Property Rights

According to TRIPS, the intellectual property rights are:

1) Copyright under  Intellectual Property Rights

Copyright protection in India is available for any literary, dramatic, musical, sound recording and artistic work. The Copyright Act 1957 provides for registration of such works. Although an author’s copyright in a work is recognised even without registration, it is advisable to get the same registered since it furnishes prima facie evidence of copyright in a court of law.

The subject-matter of copyright is the literary, dramatic and musical or artistic work, a cinematograph film and a sound recording. Literary work includes computer programmes, tables and compilations including computer databases.

The object of this right is not the material thing produced, but the form impressed upon it by the maker. Picture, in abstract sense of artistic form made visible by that paint and canvas, belongs to him who made it.

  • Rights of artists, painters, musicians sculptors, photographers, and authors for copyright in their works;
  • Rights of computer programmes whether in source or object code for a copyright in their programmes and compilation data;
  • Also rights of performers producers of phonogram’s and broadcasting organizations in respect of fixation on their programmes for copyright in their work.

2) Right of traders in their trade marks under  Intellectual Property Rights

The law relating to registration of trade marks thus governed by the Trade and Merchandise Marks Act, 1958. A distinctive mark (as defined) can however registered under the said Act.

Trademark is anything which identifies the origin of the goods or services. It can be a name, symbol, logo, colour, sound etc. Trademark symbolizes the value or goodwill associated with the goods and its specific source. It distinguishes one firm from others. Benefits of trademarks are several-fold:

It helps consumers to identify products with desirable attributes quickly. It encourages firms to improve quality of their product. In absence of any identification mark, it would be difficult to distinguish the duplicates from high quality products. This will lower the incentive of the firm to make high quality products as the returns would be same as that of inferior products. Trademark protection gives a “monopoly power” over the distinctive trademark in the sense that others are debarred from using the same or a confusingly similar trademark. However this kind of monopoly power does not involve any welfare loss as its aim is not to prevent similar products but only to prevent use of similar or deceptive marks with the aim of confusing the consumer.

As a result, trademarks have mostly a positive incentive effect. It may seem that overall the economics of trademark protection and the intellectual property law of those marks are non-conflicting.

There are, however, some grey areas:

Issue of umbrella branding (brand extension) whereby a company uses a trademark made famous by sale of one product to enter into another market. For example Reliance entering retail marketing, entertainment industry, restaurants etc. Such brand extension strategies raise legitimate competition policy issues as a firm is essentially using an advantage acquired in other market to sell its products. Consumers are likely to try the products associated with a well-known brand name rather than an unknown brand with same quality making it difficult for a new company to enter the market.

Compulsory licensing of trademarks

Competition policies forcing companies to license their trademark may result in shoddy work at premium price associated with the brand. This will also ruin the reputation associated with the brand. This would affect the firm‘s incentive to provide consumers with high quality goods.

3) Right of manufacturers & producers on geographical indication under  Intellectual Property Rights

A geographical indication considered a name or sign used on certain products which corresponds to a specific geographical location or origin. (e.g. a town, region, or country). India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 has come into force with effect from 15 September 2003. These goods include agricultural, natural or manufactured goods that are distinct from similar products due to quality, reputation or any other characteristic that is essentially attributable to their geographical origin. Under the Act, such distinctive geographical indicia can thus protected by registration. The Act thus facilitates promotion of Indian goods when exported overseas and in turn protects consumers from deception.

Geographical indication  have been defined under Article 22(1) of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) Agreement as: “Indications which identify a good as originating in the territory of a member, or a region or a locality in that territory, where a given quality, reputation or characteristic of the good is essentially attributable to its geographic origin.”

An application for registration of a geographical indication can be made by any authority, organization or association of persons representing the interest of the producers of the concerned goods. Registration would entitle a registered proprietor, or a duly authorized user, to the exclusive right of usage of that particular geographical indication with respect to the goods for which it is registered and to obtain relief for any infringement thereof. It maybe pointed out however, that non-registration does not mean non-protection of a rightful user. Registration affords better protection in an action for infringement.

The validity of bona fide registration of a geographical indication as a trade mark prior to the coming into force of the Act will not be affected by this enactment and will be treated as valid under the laws relating to trade marks.
4)Industrial Design under  Intellectual Property Rights.

The Designs Act, 2000 protects certain designs. The features of shape, configuration, pattern, ornament or composition of lines or colours applied to any ‘article’ whether in two or three dimensional forms (or both), by an industrial process which appeals to the eye can be registered under the said Act. The Designs Act 2000 brought into force in May 2001 entitles an applicant to apply for registration in more than one class. However, registration then granted for only one class. Furthermore detailed classification of designs has incorporated conforming to the international regime.

Copyright in design under the 2000 Act would protected for a period of 10 years from the date of registration.

5) Patents under  Intellectual Property Rights.

The subject thus covered by the Patents Act, 1970. India recognises product patent protection for a period of 14 years. However, in three areas: food, chemicals and pharmaceuticals, it recognises only a process patent for a period of 7 years. With the signing of the GATT Agreement, the Patents Act, 1970 has amended by the Patents (Amendment) Act, 1999 to bring it in line with the Trade TRIPS Agreement. The amended law would allow the filing of all product patents with a regulatory authority. It also contains provision for granting Exclusive Marketing Rights (EMRs) for five years or till the patent then granted or rejected whichever earlier.

The Patents (Second Amendment) Act 2002 recently passed by the Parliament provides protection for new micro organisms and proposes a uniform 20 year term from filing date for all patents granted after commencement of the Act. It also provides for publication of all patent applications within 18 months of filing or priority date, whichever is earlier.

The subject-matter of a patent-right is an invention. He whose skill/labour produces the idea of new process, instrument/ manufacture has that idea as his own in law. He alone hence entitled to use it and to draw from it the profit inherent in it.

  • Right of the inventor for patent is his invention.
  • Rights of plant breeders and farmers.
  • Rights of biological diversity.
6) Right of computer technologist for their layout design of integrated circuits under  Intellectual Property Rights

In the case of layout designs of integrated circuits the property consists in the exclusive right to apply the layout design registered under statute in relation to the class of goods for which it is registered for a prescribed period. The right can also licensed for use by third party or assign to any person.



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Article Categories:
Trademarks Copyrights IP

Avani is a LL.B. student of New Law College. Classical use of language and adeptness with the written word make her treasure useful legal information. In her spare time, she writes prose and pursue an active interest in creative writing.

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