GPBR 313 Course Notes
Intellectual Property Rights
Course Outline
Theory: 1(1+0)
Introduction and Meaning of Intellectual Property:
Brief introduction to GATT, WTO, TRIPS, and WIPO.
Treaties for IPR protection: Madrid Protocol, Berne Convention, Budapest Treaty, etc.
Types of Intellectual Property and legislations covering IPR in India: Patents, Copyrights, Trademark, Industrial design, Geographical indications, Integrated circuits, Trade secrets.
Patents Act 1970 and Patent system in India, patentability, process and product patent, filing of patent, patent specification, patent claims, Patent opposition and revocation, infringement, Compulsory licensing, Patent Cooperation Treaty, Patent search and patent database.
Origin and history including a brief introduction to UPOV for protection of plant varieties.
Protection of plant varieties under UPOV and PPV&FR Act of India; Plant breeders rights.
Registration of plant varieties under PPV&FR Act 2001; breeders, researcher and farmers rights.
Traditional knowledge-meaning and rights of TK holders; Convention on Biological Diversity.
International treaty on plant genetic resources for food and agriculture (ITPGRFA). Indian Biological Diversity Act, 2002 and its salient features, access and benefit sharing.
Lecture Outlines
1: Introduction and meaning of intellectual property.
2: Brief introduction to GATT, WTO, TRIPS and WIPO.
3: Treaties for IPR protection: Madrid protocol, Berne Convention, Budapest treaty, etc.
4-6: Types of Intellectual Property and legislations covering IPR in India: Patents and Copyrights, Trademark, Industrial design, Geographical indications, Integrated circuits, Trade secrets.
7: Patents Act 1970.
8: Patent system in India, patentability, process and product patent, filing of patent, patent specification, patent claims, Patent opposition and revocation, infringement, Compulsory licensing, Patent Cooperation Treaty, Patent search and patent database
9: Origin and history including a brief introduction to UPOV for protection of plant varieties.
10: Protection of plant varieties under UPOV and PPV&FR Act of India, Plant breeders rights.
11: Registration of plant varieties under PPV&FR Act, 2001.
12: Breeders, researcher and farmers rights.
13: Traditional knowledge-meaning and rights of TK holders.
14: Convention on Biological Diversity.
15: International treaty on plant genetic resources for food and agriculture (ITPGRFA).
16: Indian Biological Diversity Act, 2002 and its salient features, access and benefit sharing.
References
Acharya, N.K. 2014. Text book of Intellectual Property Rights. Asia Law House, Hyderabad.
Loganathan, E.T. 2012. Intellectual Property Rights. New Century Publications, New Delhi.
Rosedar, S.R.A. 2016. Intellectual Property Rights. Lexis Nexis (2nd Ed.), Nagpur.
Introduction and Meaning of Intellectual Property
Intellectual property (IP):
Intellectual: Ability to think and understand complicated ideas.
Property: Any object under a person's immediate power.
Intellectual Property: Creations of the mind (inventions, industrial designs, literary & artistic works, symbols, names, images used in commerce) - WIPO definition.
Results from intelligent activities in industrial, scientific, literary, or artistic fields.
Nature of Intellectual Property
IP is a legal concept granting exclusive rights for creations of the mind.
Includes intangible creations: copyrights, patents, trademarks, trade secrets, publicity rights, moral rights, and rights against unfair competition.
Protects artistic works, literature, music, discoveries, inventions, words, phrases, symbols, and designs.
Purpose of IP law: Encourage the creation of intellectual goods.
Gives people/businesses property rights to information and intellectual goods (usually for a limited time).
Provides economic incentive to profit from creations, stimulating innovation and technological progress.
Intangible nature of IP presents difficulties compared to traditional property.
Indivisible: Unlimited people can "consume" an intellectual good without depleting it.
Appropriation problems: Difficult to prevent first buyer from replicating and selling at a lower price.
Modern IP Law focuses on balancing rights to encourage creation but not prevent wide use.
Classification of IP
Industrial Property: Patents, trademarks, industrial designs, geographical indications.
Copyright: Exclusive right to authorize or do certain acts in relation to:
Literary, dramatic, musical, and artistic works.
Cinematograph film.
Sound recordings.
TRIPs agreement classification: Patents, Industrial design, trademarks, copy right, layout design of integrated circuits, trade secrets (undisclosed information) and geographical indications.
Intellectual Property Right
Legal right over protection of creations of the mind.
General term: patents, industrial design, trademarks, copyright, layout design of integrated circuits, trade secrets, geographical indications, and new plant varieties.
Different IPRs vary in protection.
Right given to inventor to derive economic benefits if not detrimental to society.
Gives creator exclusive right over use of creation for a certain period.
IP is a new branch in the legal field in India, growing fast because of industrial development and implementation of international conventions.
Brief History of IP in India
1856: George Alfred De Penning made the first patent application.
28th Feb, 1856: Government introduced legislation for "exclusive privileges for encouragement of inventions of new manufactures" (The Patent Act).
3rd March, 1856: George Alfred De Penning (civil engineer of Calcutta) petitioned for exclusive privileges for "An Efficient Punkah-Pulling Machine".
2nd Sep, 1856: De Penning submitted specifications with drawings; granted first IP protection in India.
India is a member of the Berne Convention and Universal Copyright Convention.
Member of International Convention for the protection of industrial property (Paris Convention) dealing with patents, designs, utility models, trademarks, trade names.
Various acts relating to important intellectual property enacted after 1999.
Administration of IPRs in India
Patents, Trademarks, Designs, Geographical Indications: Administered by Controller General of Patents, Designs and Trademarks, Dept. of Industrial Policy and Promotion, Ministry of Commerce and Industry.
Copyright: Ministry of Human Resource Development (HRD).
Layout-Design of Integrated Circuits: Ministry of Telecommunication and Information Technology.
Plant varieties: Protection of Plant Varieties and Farmers Rights Authority, Ministry of Agriculture.
Advantages of IP
Contributes to economic and cultural development.
Improves living standards.
Leads to improvement in intelligence.
Leads to improvement of facilities.
Brief Introduction to GATT, WTO, TRIPS, and WIPO
Trade played an important role in supporting economic development and promoting peaceful relations among nations.
The GATT Years (1948-1994)
General Agreement on Tariffs and Trade (GATT) provided rules for world trade, oversaw periods of high growth.
Intended to create International Trade Organization (ITO) alongside World Bank and IMF.
ITO Charter draft was ambitious, including rules on employment, commodity agreements, restrictive business practices, international investment, and services.
ITO aimed to be created at UN Conference on Trade and Employment in Havana, Cuba in 1947.
General Agreement on Tariffs and Trade (GATT)
Multilateral agreement aimed at regulating international trade.
Legal agreement to promote international trade by reducing/eliminating trade barriers (tariffs, quotas).
Purpose: "Substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis."
Outcome of failure to create the International Trade Organization (ITO).
Signed by 23 nations in Geneva on 30 October 1947, took effect on 1 January 1948.
Informal organization that regulated world trade since 1948.
Tariff concessions came into effect by 30 June 1948 through a "Protocol of Provisional Application".
In effect until the Uruguay Round Agreements in Marrakesh (Morocco) on 14 April 1994, established the World Trade Organization (WTO) on 1 January 1995.
WTO is a successor to GATT, the original GATT text (GATT 1947) is in effect under WTO, subject to modifications of GATT 1994.
GATT Trade Rounds
Seven rounds of negotiations occurred under GATT, focusing on reducing tariffs.
Uruguay Round expanded GATT to services, capital, IP, textiles, and agriculture.
Uruguay Round of GATT (1986-94)
Began in 1986.
Expanded competence of GATT to services, capital, intellectual property, textiles and agriculture.
123 countries participated.
Developing countries played an active role.
Agreement on Agriculture was the most substantial trade liberalization agreement in agricultural products in history.
Goals: Improve market access, reduce domestic support, eliminate export subsidies, harmonize sanitary and phytosanitary measures.
Uruguay round (1994) of GATT gave birth to WTO.
Other core components: General Agreement on Trade in Services (GATS), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).
Birth of the WTO
WTO's creation on 1 January 1995 marked the biggest reform of international trade since the end of WW2.
GATT dealt with trade in goods, the WTO covers services and IP; created new procedures for dispute settlement.
World Trade Organization (WTO)
Intergovernmental organization that regulates international trade.
Officially commenced on 1 January 1995 replacing the GATT.
Permanent organization based on an international treaty.
Achieved international status but is not an agency of UNO (United Nations Organisation).
Largest international economic organization.
Nearly 153 members accounting for over 97% of world trade.
Around 30 others are negotiating membership.
Decisions are made by consensus/majority vote.
Deals with regulation of trade in goods, services, and IP.
Provides a framework for negotiating trade agreements and a dispute resolution process.
Enforces participants to adhere to WTO agreements, ratified in all members' parliaments.
Highest decision-making body: Ministerial Conference (meets every two years).
Below this: General Council (meets several times a year in Geneva).
General council meets as Trade Policy Review Body and Disputes Settlement Body (DSB).
Goods council, Services council and IP council report to General Council.
Specialized committees, working groups, and working parties deal with individual agreements, environment, development, membership applications, and regional trade agreements.
Objectives of WTO
Improve standard of living of people in member countries.
Ensure full employment and broad increase in effective demand.
Enlarge production and trade of goods.
Increase the trade of services.
Ensure optimum utilization of world resources.
Protect the environment.
Accept the concept of sustainable development.
Functions of WTO
Implement rules and provisions related to trade policy review mechanism
Provide a platform to member countries to decide future strategies related to trade and tariff
Provide facilities for implementation, administration and operation of multilateral and bilateral agreements of the world trade
Administer the rules and processes related to dispute settlement
Ensure optimum use of world resources
Assist international organizations such as IMF (International Monetary Fund) and IBRD (International Bank for Reconstruction and Development) for establishing coherence in Universal Economic Policy determination.
WTO rules and agreements
Member countries receive guarantee that its exports will be treated fairly and consistently in other countries markets. Each country promises to do the same for imports into its own market.
The system also gives developing countries some flexibility in implementing their commitments.
Goods: From 1947 to 1994 GATT was the forum for negotiating lower customs duty rates and other trade barriers. GATT is the WTO's principal rule book for trade in goods. It has annexes dealing with specific sectors such as agriculture and textiles and with specific issues such as state trading, product standards, subsidies and action taken against dumping.
Services: Banks, insurance firms, telecommunication companies, tour operators, hotel chains and transport companies looking to do business abroad can now enjoy same principles of free and fair that originally was only applied to trade in goods. These principles appear in the new GATS (General Agreement on Trade in Services). WTO members have made individual commitments under GATS stating which of their service sectors they are willing to open for foreign competition and how open those markets are.
IP: WTO's IP agreement indicates the rules for trade and investment in ideas and creativity. The rules state how copyrights, patents, trademarks, geographical names, industrial designs, integrated circuit layout designs and trade secrets should be protected when trade is involved.
Dispute settlement: Countries bring disputes to the WTO if they think that their rights under the agreements are being infringed. Judgments by specially appointed independent experts are based on interpretations of the agreements and individual countries commitments. System encourages countries to settle their differences through consultation. Otherwise settled by ruling by a panel of experts and countries have a chance to appeal the ruling on legal grounds.
Trade Policy review: the trade policy review mechanism is to improve transparency, to create a greater understanding of the policies that countries are adopting and to assess their impact. Many members consider the reviews as constructive feedback on their policies. All WTO members must undergo periodic scrutiny. Each review contains reports by the concerned country and the WTO secretariat.
The WTO oversees about 60 different agreements which have the status of international legal texts. Member countries must sign and ratify all WTO agreements on accession. A discussion of some of the most important agreements follows.
The Agreement on Agriculture came into effect with the establishment of the WTO at the beginning of 1995. The AoA has three central concepts, or "pillars": domestic support, market access and export subsidies.
The General Agreement on Trade in Services was created to extend the multilateral trading system to service sector. The agreement entered into force in January 1995.
The Agreement on Trade-Related Aspects of Intellectual Property Rights sets down minimum standards for many forms of intellectual property (IP) regulation. It was negotiated at the end of the Uruguay Round of the GATT in 1994.
The Agreement on the Application of Sanitary and Phytosanitary Measures also known as the SPS Agreement was negotiated during the Uruguay Round of GATT, and entered into force with the establishment of the WTO at the beginning of 1995. Under the SPS agreement, the WTO sets constraints on members' policies relating to food safety (bacterial contaminants, pesticides, inspection and labelling) as well as animal and plant health (imported pests and diseases).
The Agreement on Technical Barriers to Trade is an international treaty of the World Trade Organization. It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade, and entered into force with the establishment of the WTO at the end of 1994. The object ensures that technical negotiations and standards, as well as testing and certification procedures, do not create unnecessary obstacles to trade".
The Agreement on Customs Valuation, formally known as the Agreement on Implementation of Article VII of GATT, prescribes methods of customs valuation that Members are to follow. Chiefly, it adopts the "transaction value" approach.
In December 2013, the biggest agreement within the WTO was signed and is known as the Bali Package.
Trade-Related Aspects of Intellectual Property Rights (TRIPS)
International legal agreement between WTO members, sets minimum standards for IP regulation.
Came into existence at the end of the Uruguay Round of the GATT in 1994, administered by the WTO.
Introduced IP law into the international trading system, remains the most comprehensive international agreement on IP.
TRIPs made it mandatory for all WTO members to provide strong protection for IPR.
In 2001, developing countries initiated talks resulting in the Doha Declaration, clarifying the scope of TRIPs.
Doha declaration clarifies the scope of TRIPS, stating it can and should be interpreted to promote access to medicines for all.
TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks; trade dress; and undisclosed or confidential information.
TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures.
Role/Objectives of TRIPS
Protection and enforcement of all IPRs.
Promotion of technological innovation.
Transfer and dissemination of technology.
Production and use of technological knowledge.
Takes care of member states social and economic welfare.
Establishes minimum levels of protection that each government has to give to the IP of fellow WTO members.
Strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long run when IP protection encourages creation and invention.
TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. Unlike other agreements on IP, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlement mechanism.
Requirements of TRIPS
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
Copyright terms must extend at least 50 years, unless based on the life of the author.
Copyright must be granted automatically, and not based upon any "formality," such as registrations, as specified in the Berne Convention.
Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
National exceptions to copyright (such as "fair use" in the United States) are constrained by the Berne three-step test. The Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective national copyright laws. The three-step test was first established in relation to the exclusive right of reproduction under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967.
Patents must be granted for "inventions" in all "fields of technology" provided they meet all other patentability requirements (although exceptions for certain public interests are allowed) and must be enforceable for at least 20 years.
Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work and normal exploitation of the patent is not in conflict.
No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
Legitimate interests of third parties have to be taken into account by patent rights.
In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories under the principle of national treatment (with certain limited exceptions). TRIPS also has a most favored nation clause.
Many of the TRIPS provisions on copyright were copied from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were modeled on the Paris Convention for the Protection of Industrial Property.
World Intellectual Property Organization (WIPO)
One of the specialized agencies of the United Nations (UN).
WIPO was created in 1974 "to encourage creative activity, to promote the protection of IP throughout the world".
Headquartered in Geneva, Switzerland.
The predecessor to WIPO was the United International Bureaux for the Protection of Intellectual Property.
WIPO seeks to "promote the protection of intellectual property throughout the world".
WIPO is responsible for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development.
WIPO is also a co-publisher of the Global Innovation Index.
WIPO currently has 191 member states, administers 26 international treaties.
As per the Agreement between the United Nations and the World Intellectual Property Organization, WIPO is responsible for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development (UNCTAD), the United Nations Development Programme (UNDP) and the United Nations Industrial Development Organization (UNIDO), as well as of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and of other agencies within the United Nations system.
Treaties for IPR protection: Madrid protocol, Berne Convention and Budapest Treaty etc.
Madrid System
The Madrid system provides a centrally administered system of obtaining a bundle of trademark registrations in separate jurisdictions.
International system for facilitating trademark registration in multiple jurisdictions.
Legal basis: Madrid Agreement (1891) and Protocol Relating to the Madrid Agreement (1989).
The Madrid Protocol system provides for the international registration of trade marks by way of one application that can cover more than one country.
The opportunity of having a single registration to cover a wide range of countries gives advantages, both in terms of portfolio management and cost savings, as opposed to a portfolio of independent national registrations.
Administered by the International Bureau of the WIPO.
Allows trademark owners to obtain protection in member states by filing one application in one jurisdiction with one set of fees, and make changes/renew registration across all applicable jurisdictions through a single administrative process.
Refusal, withdrawal, or cancellation of the basic application/registration within five years leads to the refusal, withdrawal, or cancellation of the international registration to the same extent.
Berne Convention
International agreement for the Protection of Literary and Artistic Works, governing copyright, first accepted in Berne, Switzerland, in 1886.
Mandated several aspects of modern copyright law (copyright exists the moment work is "fixed", rather than requiring registration).
Requires countries to recognize copyrights held by citizens of other parties to the convention.
Requires strong minimum standards for copyright law.
Copyright under the Berne Convention must be automatic; it is prohibited to require formal registration.
The protection of the Convention applies to nationals and residents of countries that are party to the convention, and to works first published or simultaneously published ("within 30 days") in a country that is party to the convention.
It also applies to cinematic works by persons who have their headquarters or habitual residence in a party country, and to architectural works situated in a party country.
States that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms.
For photography, the Berne Convention sets a minimum term of 25 years from the year the photograph was created, and for cinematography the minimum is 50 years after first showing, or 50 years after creation if it hasn't been shown within 50 years after the creation. Countries under the older revisions of the treaty may choose to provide their own protection terms, and certain types of works (such as phonorecords and motion pictures) may be provided shorter terms.
If the author is unknown, because for example the author was deliberately anonymous or worked under a pseudonym, the Convention provides for a term of 50 years after publication. However, if the identity of the author becomes known, the copyright term for known authors (50 years after death) applies.
The Berne Convention does not explicitly authorize countries to permit "fair uses" of copyrighted works in other publications or broadcasts in a broad sense.
Budapest Treaty
International treaty signed in Budapest, Hungary, on April 28, 1977.
Entered into force on August 9, 1980, and was later amended on September 26, 1980.
Treaty is administered by the WIPO.
International treaty governing registration of deposit of microorganisms, cell lines etc., in officially approved culture collections for patent applications.
Allows "deposits of microorganisms at an international depositary authority (IDA) to be recognized for the purposes of patent procedure".
Ensures that an applicant need not deposit the biological material in all countries where he/she wants to obtain a patent. The applicant needs only to deposit the biological material at one recognised institution, and this deposit will be recognised in all countries party to the Budapest Treaty.
The deposits are made at an IDA in accordance with the rules of the Treaty on or before the filing date of the complete patent application.
Materials that can be deposited under the Budapest Treaty includes:cells, for example, bacteria, fungi, eukaryotic cell lines, plant spores;
genetic vectors (such as plasmids or bacteriophage vectors or viruses) containing a gene or DNA fragments
organisms used for expression of a gene (making the protein from the DNA).
Paris Convention
The Paris Convention adopted in 1883, applies to industrial property in the widest sense, including patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications and the repression of unfair competition.
The provisions of Paris Convention fall into three main categories:
National treatment: each contracting state must grant the same protection to the nationals of other contracting states that it grants to its own nationals.
Right of priority: the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks) apply for protection in any of the other contracting states.
Common rules: the convention lays down a few common rules that all contracting states must follow.
Trademark
*A trademark is a sign indicating a product, business or entity’s goods or services.
Can be designated using the following symbols:
TM (for an unregistered trademark,goods) SM (for an unregistered Service mark, services) \,circledR (for a registered trademark)Can be a name, word, phrase, logo, image, sound and comprises of visible ( colors, shapes, moving images) or non-visible signs(sounds, scents, textures).
The Indian Trademark Law provides protection to Trademarks statutorily under the Trademark Act, 1999 and also under the common law remedy of Passing Off.
History (Indian Context)
The passing off is a common law tort used to enforce unregistered trademark rights.
The first Statutory law related to trademark in India was the Trade Marks Act ,1940 which had similar provision like the UK Trade Marks Act,1938.
The law of trademark deals with the mechanism of registration, protection of trademark, and prevention of fraudulent trademark.
In 1958, the Trade and Merchandise Marks Act, 1958 was enacted which consolidated the provisions related to trademarks contained in other statutes like, the Indian Penal Code, Criminal Procedure Code, and the Sea Customs Act.
The Trade and Merchandise Marks Act, 1958 was repealed by the Trade Marks Act, 1999 and is the current governing law related to registered trademarks.
The 1999 act was enacted to comply with the provisions of the TRIPS(Agreement on Trade Related Aspects of Intellectual Property Rights).
Trademark
According to Section 2(zb) of the TradeMarks Act,1999, "trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours."
Trademark Classification in India
Trademark in India is classified in about 45 different classes which includes chemical substances used in industry, paints, lubricants machine and machine tools, medical and surgical instruments, stationary, lather, household, furniture, textiles, games, beverages preparatory material, building material, sanitary material, and hand tools, other scientific and educational products.
The main objective of trademark classification is to group together the similar nature of goods and services. There are 34 classes for products and 11 for services
Trademark Registration
Types of Trademarks that can be Registered
Product trademarks - identify goods
Service trademarks - identify the services of an entity
Certification trademarks - used in connection with certified goods or services
Collective trademarks - used by members of a group
Trademark Registration
What are the types of trademarks that can be registered?
Under the Indian trademark law, the following are the types of trademarks that can be registered:
Product trademarks: Are those that are affixed to identify goods.
Service trademarks: Are used to identify the services of an entity, such as the trademark for a broadcasting service, retails outlet, etc. They are used in advertising for services.
Certification trademarks: Are those that are capable of distinguishing the goods or services in connection with which it is used in the course of trade and which are certified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features
Collective trademarks: Are registered in the name of groups, associations or other organizations for the use of members of the group in their commercial activities to indicate their membership of the group.
Advantages of Trademark Registration
Protects hard-earned goodwill in the business
Protects the Name / Brand Name from being used in a similar fashion by another firm
Gives your products a status of "Branded Goods"
Exclusive right to use in relation to goods or services
Power to assign (transfer) the trademark to others for consideration
Procedure/Steps for Trademark Registration
1. Filing of application in the Trade Mark Registry (within one who who business is in India).
2. Examination of the application by the Registrar.
3. Publication of the application in the Trademark Journal.
4. If the opposition has been decided in favor of the application, the Registrar will register the Trademark.
5. Issue a Trademark Registration.
Term/Duration of a Trademark in India
*The term of registration of trademark is 10 (Ten) years, but may be renewed subject to the payment of the prescribed fee, in accordance with the provisions of the Trademarks Act, 1999
circledR Symbols
*Generally, one who has filed an application (pending registration) can use the TM (trademark) designation with the mark to alert the public of his exclusive claim. The claim may or may not be valid. The registration symbol, may only be used when the mark is registered.
Trademark Infringement
Trademark infringement is a violation of exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensee.
Punishable with a minimum of six months imprisonment possibly extending to three years
Example Case
In 2007, Amul won a trademark case in Gujarat High Court that their name may not be used by another company selling other goods.
Conclusion
The trademark is for protecting the name of the product or services than the product itself
The trademark assures the customer about the source of a product, though the quality of the product is not assured by the trademark
In India, the Trade Mark Act of 1999 is presently in force
The term of trademark protection is 10 years, which can be renewed from time to time, indefinitely
Trademark can be assigned or transmitted
*Using deceptively similar marks, falsifying the mark or using unregistered mark cause infringement under Trade Mark Act. And the penalties against offenses related to trade mark can range from fine to imprisonment.
Copyright
Copyright
*A monopoly right restraining others from exercising that right which has been conferred on the owner of copyright. It is a negative right.
The object of copyright is to encourage authors, composers, and artists to create original works.
Copyright is not a single right. It is a bundle of rights in the same work
It consists not merely of the right of reproduction. It also consists with a right to work with the originals
Copyright protects skill and labor employed by the author
The owner of a copyright has no monopoly in the subject-matter.
There is no copyright in ideas
Copyright subsists in original literary, dramatic, musical and artistic work
To secure copyright protection the following conditions apply
The work is first published in India.
The work is first published outside India the author at the date of publication must be a citizen of India.
In the case of an unpublished work, the author, on the date of making of the work, is a citizen of India or domiciled in India.
Copyright is a bundle of rights consisting of 1) Economic rights and 2) Moral rights
Economic Rights
*(1) reproduce the work in any material form incl. the storing of in any medium by electronic means;(2) to issue copies of the work to the public; (3) to perform the work in public, or communicate it to the public; (4) to make any cinematographic film or sound recording in respect of the work;(5) to make any translation of the work; (6) to make any adaptation of the work; (7) to do, in relation to translation or adaptation of the work, any of the acts specified in relation to the work in sub-clauses (1) to (6)
**(b) In the case of computer program,-
1) to do any of the facts specified in clause (a);2) to sell or give on hire, or offer for sale or hire any copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasions;
**(c) in the case of an artistic work,-
*(1) to reproduce the work in any material form incl. depiction in two dimensions of a three dimensional work;(2) to communicate the work in public;(3) to issue copies of the work to the public;(4) to include the work in any cinematographic film;(5) to make adaptation of the work; (6) to do in relation to an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (1) to (4).
**(d) in the case of cinematographic film,-
*(1) to make a copy of the film, incl. a photograph of any image forming part thereof;(2) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;(3) to communicate the film to the public.
**(e) in the case of a sound recording,-
(1) to make any other sound recording embodying it;(2) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;(3) to communicate the sound recording to the public.
Moral Rights
the right to decide whether to publish or not to publish the work;
the right to claim authorship of a published or exhibited work;
the right to prevent alteration and other actions that may damage the author's honor or reputation - the right of integrity;
to restrain or claim damages.