Enforcement of Intellectual Property Rights

Group 4

Table of Contents
Introduction ......................................................................................................................... 2 Kinds of Intellectual Properties & Their Enforcements: .................................................... 4 Patents-............................................................................................................................ 4 Copyrights- ..................................................................................................................... 6 Trademarks ..................................................................................................................... 8 Design ........................................................................................................................... 10 Protection of IPR............................................................................................................... 11 Cases ................................................................................................................................. 11 CONCLUSION ............................................................................................................. 12

Introduction
We live in a knowledge economy, where ideas generated by talented people and the inventions they make are the new currency. Research and innovation are now seen as the key differentiating factors determining the market value of a product or service. The emphasis today has graduated from cost arbitrage and quality deliverable to IP creation and R&D.

Intellectual property rights are legal rights, which result from intellectual activity in the industrial, scientific, literary and artistic fields. These rights give statutory expression to the moral and economic rights of creators in their creations. Intellectual property rights safeguard creators and other producers of intellectual goods and services by granting them certain timelimited rights to control the use made of those productions. These rights also promote creativity and the dissemination and application of its results and encourage fair-trading, which contributes to economic and social development.

The need for a system to protect IP internationally arose when foreign exhibitors refused to attend an International Exhibition of Inventions in Vienna in 1873 because they were afraid that their ideas would be stolen and exploited commercially in other countries. This led to the creation of the Paris Convention for the Protection of Industrial Property of 1883. The Paris Convention was the first major international treaty designed to help the people of one country obtain protection in other countries for their intellectual creations, in the form of industrial property rights. In 1886, copyright entered the international arena with the Berne Convention for the Protection of Literary and Artistic Works. The aim of this Convention was to help nationals of its Member States obtain international protection of their right to control, and receive payment for, the use of literary and artistic works. Both the Paris Convention and the Berne Convention set up International Bureaus to carry out administrative tasks, such as organizing meetings of the Member States. In 1893, these two small bureaus united to form an international organization called the United International Bureaus for the Protection of Intellectual Property best known by its French acronym, BIRPI. Based in Berne, Switzerland, with a staff of seven, BIRPI was the predecessor of what is today known as the World Intellectual Property Organization or WIPO. WIPO is a specialized agency of the UN, with a mandate to administer IP matters recognized by the UN Member States. There are about 21

international treaties in the field of intellectual property, which are administered by WIPO. The treaties fall into three groups namely treaties, which establish international protection; treaties, which facilitate international protection and treaties, which establish classification systems.

The term Intellectual Property (IP) reflects the idea that its subject matter is the product of the mind or the intellect. These could be in the form of Patents; Trademarks; Geographical Indications; Industrial Designs; Layout-Designs (Topographies) of Integrated Circuits; Plant Variety Protection and Copyright.

IP, protected through law, like any other form of property can be a matter of trade, that is, it can be owned, bequeathed, sold or bought. The major features that distinguish it from other forms are their intangibility and non-exhaustion by consumption.

IP is the foundation of knowledge-based economy. It pervades all sectors of economy and is increasingly becoming important for ensuring competitiveness of the enterprises.

Kinds of Intellectual Properties & Their Enforcements: PatentsA Patent is a legal monopoly, which is granted for a limited time by a country to the owner of an invention. Merely to have a patent does not give the owner the rights to use or exploit the patented invention. That right may still be affected by other laws such as health and safety regulation or the food and drugs regulation or even by other patents. The patent, in the eyes of the law, is a property right and it can be given away, inherited, sold, licensed and can even be abandoned. As it is conferred by the government, the government, in certain cases even after grant or even if it has been, in the meantime, sold or licensed, can revoke it.

A Patent gives an inventor the right for a limited period to stop others from making, using, selling or importing an invention without the permission of the inventor. That is why patent is called a "negative right"

Patents are generally concerned with functional and technical aspects of products and processes and must full fill specific conditions to be granted.

Most patents are for incremental improvements in known technology - evolution rather than revolution. The technology does not have to be complex.

Patent rights are territorial; an Indian patent does not give rights outside of India. Patent rights last for up to 20 years in India and in most countries outside India. Depending on where you wish your patent to be in effect, you must apply to the appropriate body. In India, this is The Indian Patent Office. There are various Patent Offices around the world. Alternatively, a Patent Agent can apply on your behalf.

Enforcement
Suit for enforcing a patent can be filed at the District Court or the high court having jurisdiction to try the suit. Right to enforce the patent lies with person holding valid claim on subject of patent The onus of establishing the infringement is on the plaintiff Relief given to the plaintiff can be in form of Damages or account of profits or Injunction.

Factors deciding the Infringement are: The scope of the claim Whether the act amounts to any of the recognized rights under the scope of the Patent Whether the alleged act of infringement constitutes an infringement of the monopoly recognized under the patents

Acts deciding whether an infringement has been committed or not: Making Using Exercising Selling Distributing the invention

Plaintiff can be given a temporary injunction Person indirectly connected will also be considered as an infringer (involved in sale & Mfg.) The procedure concerning infringement actions must confine to the Civil Procedure Code if the suit is filed before a district court

CopyrightsCopyright Registration in India gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. It also gives moral rights to be identified as the creator of certain kinds of material and to object to its distortion or its mutilation. (Material protected by copyright is termed a "work".) However, copyright does not protect ideas, names or titles. The purpose of copyright law in India is to allow copyright registrants to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment and without protection. It would often be very easy for others to exploit material without paying the creator. Most uses of copyright material therefore require permission from the copyright owner. However there are exceptions to copyright, so that some minor uses may not result in copyright infringements.

In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author. Copyright owners generally have the right to authorise or prohibit any of the following things in relation to their works: Copying of the work in any way eg. photocopying / reproducing a printed page by handwriting, typing or scanning into a computer / taping live or recorded music. Public delivery of lectures or speeches etc. Broadcasting of the work, audio / video or including it in a cable programme. Making an adaptation of the work such as by translating a literary or dramatic work, transcribing a musical work and converting a computer program into a different computer language or code.

If you are copying large amounts of material and/or making multiple copies then you may still need permission. Also where a copyright exception covers publication of excerpts from a copyright work, it is generally necessary to include an acknowledgement. Sometimes more than one exception may apply to the use you are thinking of. Exceptions to copyright do not generally give you rights to use copyright material; they just state that certain activities do not infringe copyright. So it is possible that an exception could be overridden by a contract you have signed limiting your ability to do things that would otherwise fall within the scope of an exception. Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work. So, permission is generally needed. Also, use going beyond an agreed licence will require further permission.

Enforcement
Types of copyrights in India: Logo, slogan (Literary and artistic works) Label or wrapper containing the trade Stylized marks used as trade marks

The proprietor of the trademark from another member country will get copyright protection in India

To get copyright protection there should be reproduction of substantial part of the original copyright label

Civil, criminal and administrative remedies are available against infringement of artistic copyright in trademark label etc.

Civil remedies for enforcement of copyright include injunction, damages, account of profits, delivery of infringing marks and damages for conversion

Criminal Remedies

Copyright is punishable with imprisonment may extend from a mandatory punishment of 6 months to maximum of 3 years

Fine not less than fifty thousand rupees and extending up to two lakh rupees For the second and subsequent conviction the minimum term of imprisonment is increased to one year and minimum fine is one lakh rupees

Officer not below the rank of Sub-inspector has the power to seize, without warrant, all copies of trade mark labels search all the places used for making infringing copies of the mark

Administrative Remedies An application to the Registrar of Copyrights to ban the import of infringing copies into India and the delivery of infringing copies of trade mark

Trademarks

A Trademark is any sign which can distinguish the goods and services of one trader from those of another. A sign includes words, logos, colours, slogans, three-dimensional shapes and sometimes sounds and gestures.

A trademark is therefore a "badge" of trade origin. It is used as a marketing tool so that customers can recognise the product of a particular trader. To be registrable in India it must also be capable of being represented graphically, that is, in words and/or pictures.

A new Trademark regime has been introduced in India since September 15, 2003. The new Trade Marks Act, 1999 has many innovative features: [1] Service Marks: A mechanism is now available to protect marks used in the service industry. Thus businesses

providing services like computer hardware and software assembly and maintenance, restaurant and hotel services, courier and transport, beauty and health care, advertising, publishing, educational and the like are now in a position to protect their names and marks. [2] Collective Marks: Marks being used by a group of companies can now be protected by the group collectively. [3] Well-known marks: Marks, which are deemed to be well known, are defined. Such marks will enjoy greater protection. Persons will not be able to register or use marks, which are imitations of well-known trademarks. [4] Enlarged scope of registration: Persons who get their marks registered for particular goods in a particular class and commence using their marks can sue and prevent other persons from (i) Using the same or similar marks even for different goods falling in other classes; (ii) Using the same or similar marks even only as part of their firm name or company name; (iii) Using the same or similar mark only in advertising or on business papers; (iv) Importing or exporting goods under the said trade mark; (v) Unauthorized oral use of the said trademark. [5] Stringent punishment: Punishment for violating a trademark right has been enhanced. The offence has now been made cognizable and wide powers have been given to the police to seize infringing goods. At the same time the power of the Courts to grant ex parte injunctions have been amplified. [6] Appellate Board: An appellate board (IPAB) has been constituted based in Chennai for speedy disposal of Appeals and rectification applications. [7] Expedited procedure: Mechanisms have been set in place for expediting search and registration by paying five times the normal fee. [8] Enhanced renewal period: Registered trademarks need to be renewed every ten years.

Enforcement

Under Trade Marks Act, 1999 both civil and criminal remedies are available for taking action against infringement

Civil Remedy No action can be taken for infringement of an unregistered trademark in India Has to be established that the acts, actual or threatened, of the defendant are such that they are likely to result in passing off the goods of the defendant as the goods of the plaintiff Relief: An injunction Damages or an account of profits Also given when due to a result of misrepresentation, a real likelihood of confusion or deception of the public, there is a consequent damage

Design
Design means only the features of shape, configuration, pattern or ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye but does not include any mode or principle of construction or anything which is in substance a mere mechanical device and does not include any trade mark, as defined in clause (v) of sub-section of Section 2 of the Trade and Merchandise Marks Act, 1958, property mark or artistic works as defined under Section 2(c) of the Copyright Act, 1957.

In India, designs are protected by two legal rights:

Registered designs and Artistic copyright

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Design registration in India gives the owner, a monopoly on his or her product, i.e. the right for a limited period to stop others from making, using or selling the product without their permission and is additional to any design right or copyright protection that may exist automatically in the design.

Enforcement
The Designs Act, 1911 was substituted with the Designs Act, 2000 as an outcome of TRIPS/WTO compliance The law provides for an enforcement mechanism whereby unauthorized application of a registered design is made illegal The importation for sale of any article the design of which is registered in India is made illegal To expose or publish for the purposes of sale of any article on which a design is applied is also an illegal act as per the law in force. The law provides for payment of damages by the infringer The suit must be instituted before a District Court Plaintiff may seek an interim relief and an injunction

Protection of IPR
There are different perspectives with regard to the level of protection to Intellectual property. One perspective is that there is not enough protection in intellectual property law for innovation and creativity. As the world grows smaller and becomes more interconnected, there is a cry for expanding the scope of existing Intellectual Property Rights ("IPRs"), such as patents, copyrights and trademarks, and to add new forms to protect new technologies undreamt of by those who created the existing forms of Intellectual Property.

Cases
Bangalore Aug10, 2003

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Banashankari police arrested three software engineers for illegally copying software from a company they were working for. The accused enginners, who were working with the Ishoni Networks India Private Limited, had started a new company called Ample Wave Communication Network in Koramangala. They had illegally copied code of the companys software and were using at their company, police said. Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have seized four computers, four CPUs, four keyboards, one server and one laptop from the accused.

(Source: DH News Service, Bangalore) Calcutta, 7 April 2000: The Enforcement Branch, Calcutta police with the assistance from Nasscom and BSA, seized pirated software worth of Rs. 2.61 crore (US$ 6,08,000) from companies while conducting raids in the city. 4 persons, including owners, partners and senior level employees of the companies, were arrested for this offence. The police recovered around 636 CDs, and 2 computers loaded with pirated software

CONCLUSION
The fundamentals of the Intellectual Property Laws are based on the need to protect the economic rights of the owners of the intellectual properties and also to safeguard the common man from falling a victim to those who exploit the intellectual property rights. Historical studies divulge that patents, trademarks and copyrights are recognizable intellectual properties familiar western countries for centuries. The policies and procedures adopted for protection of intellectual properties and the judicial arrangements were silent over time and adapted to the needs of the beneficial and interested parties. Instituting a uniform international regime of IPR protection could bring in conflict and controversy and therefore, imposition of such regime should be adapted to the national legal and social contexts of the countries where there are indifferences, inequalities and huge disparities .A delicate act of balancing private rights

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with a larger public interest is essential at least in developing countries. While it is incumbent upon society to respect the intellectual labour of the inventors, it is equally necessary for the inventors to remember what Samuel Johnson said: The seeds of knowledge may be planted in solitude, but must be cultivated in public

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