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Intellectual Property Rights and

Patents

Property:

Any physical or intangible entity that is owned by a


person or jointly by a group of people or a legal entity
like a corporation. that the owner has a right to
consume, sell, rent, mortgage, transfer, exchange or
destroy it.

Property refers to something which can be bought and


sold.

No commercial value means no property.

Intellectual Property Law Basics


There are three distinct types of property that individuals
and companies can own:
Real Property
It includes land and buildings.

Personal Property refers to specific items and things that


can be identified such as Jewellry, cars and art work.

Intellectual Property refers to Property which is creation


of mind or intellect (property of human creativity)
including literature, advertising slogans, songs, or new
inventions.

Intellectual Property

Property that is result of thought, namely intellectual activity is


called Intellectual Property.

In some foreign countries, it is referred to as industrial property.

Many of the rights of ownership common to real and personal


property are also common to intellectual property.

Intellectual property can be bought, sold and licensed.

It can be protected from theft or infringement by others.


Nevertheless, there are some restrictions on use.
Ex: Book.

Types of Intellectual Property

Trademark (for mark used in trade).

Copyright (for creative/artistic works/software).

Patent (for inventions).

Trade secret (for information of commercial importance).

Trademarks and Service marks

Trademark or service mark is a word, name, symbol or


device used to indicate the source, quality and ownership of a
product or service.
Ex: REEBOK for shoes and STARBUCKS for restaurant
service.
There are two types of symbols associated with trademarks.
They are and .
indicates that a trademark application has been filed for
that particular mark, but trademark is not yet granted.

Trademark

indicates that the trademark is registered.

it Can write at any place along with the word, No strict placement rule
exists.
Letters and words:
A word or other groupings of letters is the most common type of mark.
Examples include:
APPLE
GOOGLE
COCA-COLA
IBM

Pictures or drawings:
Pictures or drawings of a character or scene are often
used as trademarks or service marks.

Combination:
A trademark might be a combination of letters and a
design, such as:

Slogans
Slogans from advertising campaigns are also used as
trademarks. Example slogans which have strong trademark
rights attached to them are:

Product shape (Design):

Sound marks
Nokia
Yahoo yodel
Smell
Plumeria scent in US in 1990.
Term: initial registration is for 10 years, but can be
renewed indefinitely.
Registration: trade mark registry having its head office at
Mumbai.
details at www.ipindia.nic.in-->Trademarks
Relevant ministry in India: Ministry of commerce and
industry.

Service Mark
Airtel

KFC

SBI

Copy right:
copy rights are a set of exclusive rights granted by law to the
creators and producers of form of creative expressions such as
literary, musical and cinematographic works.
Books, songs, plays, jewelry, movies, sculptors, paintings
and choreographic works are all protectable.
An original work which is protected by copyright bears the
symbol .
The best forms of copyrights are authored and edited books,
or audio and video cassettes, which cannot be reproduced
without the permission of the person (author, editor or
publisher) who holds the copyright.

Copy right:
Incase of patents and trade secrets, protection of the basic idea

is granted but incase of copyright, protection is possible only on


the expressed material (printed, painted, tape recorded, video
recorded or expressed in any other form E.g: computer
software.
Time limit of protection is authors life and 70 years after the

authors death.
Registration: registration of copyrights, New Delhi.
www.copyright.gov.in
Relevant Ministry in India: Ministry of Human Resource
Development.

Examples

Patent

A Patent is an exclusive right granted by the government to


the original inventor/developer/researcher of an invention,
which prohibits others from making, using or selling that
invention foe a limited period of time.
Types:
Utility patents
Design patents
Plant patents
Utility patents which are the most common patents and
which cover useful inventions and discoveries such as type
writer, the automobile etc.

Patent
Design patents

which cover new, original, and


ornamental designs for articles such as furniture.
Plant patents which cover new and distinct asexually
reproduced plant varieties such as hybrid flowers or
trees.
Term: Time limit of protection: 20 years for Utility,
plant and 14 years for design.
Details
www.ipindia.nic.in/patents
Relevant Ministry in India
Ministry of Human Resource Development

Trade secret
A trade secret consists of any valuable business
information that, if known by a competitor, would afford
the competitor some benefit or advantage.
A classic example of a trade secret is the formula for the
soft drink Coca-Cola.
No registration.
No time limit.
No Territorial limits.
No fee.
Registration: India at present does not have any law to
protect undisclosed information. However, WTO regulations
require member countries to protect trade secrets.

International Bodies

International Trademark Association


WIPO
Berne Convention for the Protection of Literary and
Artistic works
Madrid Protocol
Paris Convention
North American Free Trade Agreements
General Agreement on Tariffs and trade.

International organisations, agencies and


treaties.
There are a number of international organisations and agencies that promote
the use and protection of intellectual property.
They are
INTA (international trademark association):
INTA is a not-for-profit international association composed chiefly of
trademark owners and practitioners.
More than 5000 trademark owners and professionals in more than 190
countries belonging to INTA, together with others interested in promoting
trademarks.
It offers a wide variety of educational seminars and publications,
including many worthwhile materials available at no cost on the internet.
www.inta.org.
Located at 655 third avenue, 10 th floor, New York, NY 10017-5617
(212/642-1700).

WIPO

World intellectual property organisation was founded in


1883.
it is a specialized agency of the united nations whose
purposes are to promote intellectual property throughout the
world.
it administer 24 treaties dealing with international property,
including the Paris convention, Madrid protocol, the
trademark Law Treaty, and the Berne convention.
More than 180 nations and members of WIPO.
WIPO headquartered in Geneva, Switzerland.
www.wipo.int

Berne convention for the protection


of Literary and Artistic Works.
The Berne convention was created in 1886 under the
leadership of Victor Hugo to protect literary and artistic
works.
It has more than 160 member nations.
The US became a party to the Berne convention in 1989.
It is administered by WIPO and is based on the percept
that each member nation must treat nationals of other
member countries like its own nationals for the purpose
of copyright (the principle of national treatment).

Madrid Protocol

The Madrid protocol came into existence in 1996.


It allows trademark protection for more than 70 countries,
including all 27 countries of the European union, by means of
a centralized trademark filing procedure.
The United States implemented the terms of the protocol in
late 2003.
This treaty facilitates a one-stop, low-cost, efficient system
for the international registration of trademarks by permitting
a U.S. trademark owner to file for international registration in
any number of member countries by filing a single
standardized application form with the USPTO, in English,
with a single set of fees.

Paris convention
It was designed to address trademark protection in
foreign countries in 1883
It was adopted to facilitate international patent and
trademark protection
It is based on the principle of reciprocity so that foreign
trademark and patent owners may obtain in a member
country the same legal protection for their marks and
patents as can citizens of those member countries.
It is administered by WIPO.

National American Free Trade


Agreement (NAFTA).
The NAFTA came into force into effect on January 1,
1994, and is adhered to by the United States, Canada, and
Mexico.
The NAFTA resulted in some changes to U.S. trademark
law, primarily with regard to marks that include
geographical terms.

General Agreement on Tariffs


and Trade (GATT).
GATT was concluded in 1994 and is adhered to by most
of the major industrialized nations in the world.
The most significant changes to U.S. intellectual
Property law from GATT are that non-use of a trademark
for three years creates a presumption the mark has been
abandoned. and
the duration of a utility patent is now 20 years from the
filing date of the application (rather than 17 years from
the date the patent issued as was previously the case).

Evolutionary Past:
The historical background of IP is divided into two periods.
1. Ancient Times
2. Modern Times

Ancient times:

Signatures on paintings and creations.


Substantial and identifiable patterns and particularly in
Architectures, paintings, jewellery, Dresses etc.
Rewards and monopolies granted by emperors.
Stamping of jewellers initials on jewellery made by them
(still followed by local jewellers).
Concept of copy rights came only after invention of printing
press.

Evolutionary Past:
In 1474, there was IP existed in Venice a decree (order of
law) on the protection of inventions.
The first English patent was granted to Giocopo Acotio in
1565 for a new type of furnace.
In 1594 Galileo was granted a venetian patent for an
irrigation machine.
There are even records of actions taken by jeweller named
Cludio vom creutz in nuremberg between 1593 and 1604 for
violation of his patent rights relating to polishing of
gemstones. The infringer was imprisoned, had to pay
penalty by way of costs and was banished from the city.

Evolutionary Past:
Modern times:
modern patents originated in Europe where European
sovereigns commonly awarded letters patent to favoured
inventors.
In the modern times,
The first patent was granted in North America by the
Massachusetts General Court to Samuel Winslow in 1641 for
a novel method of making salt.
George Washington signed the first united states patent Grant
on July 31, 1790.
The first U.S. patent laws were enacted by congress in 1790
as part of the constitution.

Evolutionary Past:
Patent system in India was introduced by British Government
in 1856.
The Indian patent and Designs Act, 1911 (2 of 1911) first
enacted under the management of controller of patents with a
patent term of 14 years.
Initially, the patent Act, provided a term of 7 years for
pharmaceutical, agro chemical and food products and 16
years for other categories.
The patent Act (39 of 1970) came into force on 20th April
1972.

What constitutes Infringement?


Any reproduction, use , distribution, performance, etc. of
the work without the permission of the owner.
An identical or substantial similar reproduction is also
covered
Infringement Damages - Injunction

Remedies for Patent Infringement


A suit can lie in the District or
High court ,
It may issue an injunction
either to prevent the
infringer from any further use
& award damages to the
patent owner or will pay the
patent owner royalties for
further use.

Remedies for Trademark Infringement


A suit can lie in District
or High court

Punishment extends from


6 months to 3 years
A permanent bans on
engaging in commercial
activities

Remedies for Copyright Infringement

A suit can lie in the district court


or in a high court u/s 63 of the
copyright act, 1957
Punishable with imprisonment
upto 3 years and fined as per the
claims.

COPYRIGHT CLAIMS ON THE BASIS OF


UNDERLYING ARTISTIC WORKS
Ritika Limited v. Ashwani Kumar

Ritika Limited v. Nina Talukdar

Ritika Limited v. Sajid Mobin