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Intellectual Property Rights

1. Paris Convention for the Protection of Industrial Property (1883)

Coverage:
Deals with industrial property, including:
● Patents
● ® Trademarks
● Service marks
● Industrial designs
● Geographical indications
● Trade names
● Unfair competition

Key Principles:

1. National Treatment
Each member country must give same protection to foreign applicants as it gives to its own nationals.

2. Right of Priority (Most important)

If you file a patent/trademark/design in one member country:
● You get 12 months (patents)
● And 6 months (trademarks/designs)
priority to file in other member countries.
Your earlier filing date is protected internationally.

3. Protection Against Unfair Competition

No country should allow:
● Passing off
● False trade descriptions
● Misleading advertising

4. Independence of Patents & Trademarks

A patent/trademark granted in one country is independent from others.
Cancellation in one country does NOT cancel it in another.

Objective:
To harmonize and simplify global protection of industrial property rights.
 2. Berne Convention for the Protection of Literary and Artistic Works (1886)

Coverage:
Deals with copyright protection for:
● Books
● Music
● Films
● Artworks
● Photographs
● Software
● Literary works

Key Principles:

1. Automatic Protection (No Formalities)

Copyright exists automatically —
No registration is required.
Protection begins as soon as the work is created.

2. National Treatment
Each member country must treat foreign authors as its own nationals for copyright purposes.

3. Minimum Standard of Protection

Members must provide:
● Life of author + 50 years (countries may extend to 60, 70, etc.)
● Moral rights protection (right of authorship & integrity)
● Exclusive rights such as reproduction, translation, adaptation, performance, etc.

4. Exclusive Rights to Authors:

● Right to reproduce
● Right to broadcast
● Right to translate
● Right to adapt

Objective:
To ensure global uniformity in copyright protection and stop unauthorized copying across countries.

3. WIPO – World Intellectual Property Organization (1967)

 What is WIPO?
An international UN agency headquartered in Geneva.
Responsible for promoting and protecting IP worldwide.

Functions of WIPO:

1. Administers major IP treaties:

● Paris Convention
● Berne Convention
● PCT (Patent Cooperation Treaty)
● Madrid Protocol (Trademarks)
● Hague Agreement (Designs)

2. Provides International Filing Systems:

● PCT – Single international patent filing
● ™ Madrid System – International trademark registration
● Hague System – International design registration

3. Offers Dispute Resolution (WIPO Arbitration Center)

4. Helps countries make IP laws & capacity building
5. Promotes global IP awareness and policymaking

Objective:
To harmonize and strengthen international IP protection, creating a balanced and accessible global IP
system.

4. TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), 1995

Part of:
WTO Agreement (World Trade Organization)
→ Binding on all WTO members (including India).

Purpose:
Creates the strongest and most comprehensive global IP protection system.

Key Features of TRIPS:

1. Minimum Standards of Protection

All member nations must give uniform minimum IP rights.
 2. Subjects Covered:
● Patents
● ® Trademarks
● Copyright
● Industrial designs
● Trade secrets
● Geographical Indications (GI)
● Layout-designs of IC chips

3. Patent Protection Standards:

● Protection must last 20 years from filing date.
● Applies to all fields of technology.
● Compulsory licensing allowed only under strict conditions.

4. Enforcement Measures:
Countries must provide:
● Civil remedies
● Criminal penalties for piracy
● Border measures to stop counterfeit goods

5. Dispute Settlement:
WTO’s Dispute Settlement Body ensures compliance —
Countries can challenge each other for violating TRIPS.

6. Special Flexibilities for Developing Countries:

● Compulsory licensing for public health
● Parallel imports allowed
● Transition periods for implementation

Objective:
To ensure global standards, reduce piracy, protect innovators, and balance IP rights with public interest.

Comparison Table

Treaty / Body Focus Area Key Features

Paris Convention Industrial property National treatment,
priority right, unfair
competition
 Berne Convention Copyright No formalities,
automatic protection,
moral rights
WIPO IP administration Administers treaties,
filing systems (PCT/
Madrid), policy
development
TRIPS All IP rights 20-year patents,
enforcement, WTO-
backed dispute
settlement

1. Assignment and Licensing of Intellectual Property

Meaning of Assignment
Definition:
An assignment of an intellectual property right means the transfer of ownership from the original owner
(assignor) to another person (assignee).
After assignment, the assignee becomes the new owner of the right.

Legal Basis:
● Copyright: Sections 18–19, Copyright Act, 1957
● ™ Trademarks: Section 37–45, Trade Marks Act, 1999
● Patents: Section 68, Patents Act, 1970
● Designs: Section 30, Designs Act, 2000

Types of Assignment:

Type Description
Complete Assignment Full transfer of ownership (all
rights) — the assignor retains
nothing.
 Partial Assignment Transfer of rights only for a
specific purpose, area, or duration.
Territorial Assignment Rights transferred for a particular
territory or region.
Assignment for Limited Rights given for a fixed time (e.g.,
Period 5 years).

Conditions for Valid Assignment:

. Must be in writing and signed by the assignor.
. Must clearly specify rights, duration, and territorial extent.
. Should be registered with the concerned IP office (for patents/trademarks).

Effect of Assignment:
● The assignee becomes the legal owner of the IP right.
● The assignor loses control over the assigned rights.
● The assignee can sue for infringement in their own name.

Meaning of Licensing
Definition:
A license is permission by the IP owner (licensor) allowing another person (licensee) to use the IP without
transferring ownership.
Ownership remains with the licensor, only right to use is granted.

Types of Licenses:

Type Description
Exclusive License Only the licensee can use the IP;
even the owner cannot use it.
Non-exclusive License Owner can grant licenses to
multiple parties.
Compulsory License Granted by government authority
in public interest (e.g., for
medicines).
 Limited License Granted for specific purpose, area,
or duration.

Conditions for Valid License:

. Must be in writing and signed by both parties.
. Should specify scope, duration, royalty, and restrictions.
. Should be recorded with the appropriate IP office.

Difference Between Assignment & License:

Basis Assignment License

Ownership Ownership transferred Ownership retained
Nature Permanent or long- Temporary / revocable
term
Control Assignee controls use Licensor retains
control
Right to Sue Assignee can sue Licensor usually sues
Registration Compulsory Optional in some
cases

Purpose:
● Promote commercial use of IP,
● Encourage technology transfer, and
● Allow monetization of intellectual creations.

2. Infringement and Remedies

Meaning of Infringement
Definition:
“Infringement” means unauthorized use of another person’s intellectual property without permission or
legal right.
It occurs when a person violates the exclusive rights granted to the IP holder.

Examples:
● Copying or using a patented invention without consent.
● ® Using an identical/similar trademark causing confusion.
● Reproducing or publishing a copyrighted book without license.
● Using false geographical indications on goods.

Types of Infringement (IP-wise):

IP Type Acts Constituting Infringement

Patent Making, using, or selling invention
without consent (Sec. 48, Patents
Act).
® Trademark Using identical/deceptively similar
mark causing confusion (Sec. 29,
Trade Marks Act).
Copyright Reproducing, distributing, or
performing work without
permission (Sec. 51, Copyright
Act).
GI Using false geographical
indication or misleading origin
(Sec. 22, GI Act).
Design Copying registered design for
commercial use (Sec. 22, Designs
Act).

Defences to Infringement:

Defence Description
Fair Use / Fair Dealing Limited use for research,
education, or criticism.
License / Consent Authorized use under valid license.
 Invalid Registration The IP right itself is invalid.
No Commercial Use Use for private or non-commercial
purposes.

Remedies for Infringement

Remedies are divided into civil, criminal, and administrative categories

Civil Remedies
. Injunction:
○ Court order restraining the infringer from continuing the act.
○ Types: Temporary, Permanent, Interim injunctions.
. Damages or Account of Profits:
○ Monetary compensation for loss suffered, OR
○ Recovery of profits made by infringer.
. Delivery up / Destruction of Goods:
○ Confiscation and destruction of infringing goods and tools.
. Declaration of Ownership:
○ Court declaration confirming plaintiff’s ownership of IP.

Criminal Remedies
Applicable mainly for copyright and trademark violations.
● Imprisonment (6 months to 3 years)
● Fine (₹50,000 to ₹2,00,000 or more)
● Seizure of counterfeit goods
● Police raids on infringing premises

Administrative Remedies
● Opposition proceedings before IP offices
● Cancellation or rectification of wrong registrations
● Border control measures (customs authorities can stop infringing imports)

Objective of Remedies:
● To stop infringement,
● To compensate the true owner, and
● To deter future violations.

Quick Summary Table

Topic Meaning Key Point Law

 Assignment Transfer of Permanent Patents,
ownership of IP transfer Trademarks,
Copyright
License Permission to Ownership All IP laws
use IP retained
Unauthorized Violates Respective IP
Infringement use exclusive rights laws
Remedies Legal actions Civil, criminal, Courts & IP
available administrative offices

Conclusion
● Assignment & Licensing promote legal and economic utilization of intellectual property.
● Infringement & Remedies ensure protection and enforcement of those rights.
Together, they maintain the balance between creativity, commerce, and public interest — the core
purpose of Intellectual Property Law.

Piracy in Designs and Remedies Thereof

Meaning of Design
Under Section 2(d) of the Designs Act, 2000,
“Design” means only the features of shape, configuration, pattern, ornament or composition of lines or
colours applied to any article by any industrial process.”
It does not include any mode or principle of construction or anything which is purely functional.

Meaning of Piracy of Design

Definition:
Piracy in designs means unauthorized imitation, reproduction, or fraudulent application of a registered
design to any article without the consent of the proprietor.
It is a violation of the exclusive rights granted under Section 22 of the Designs Act, 2000.

Acts Constituting Piracy (Section 22):

A person commits piracy of a design if he:
. Applies or causes to be applied a design, or its fraudulent or obvious imitation, without the consent
 .
of the registered proprietor, to any article for sale.
. Imports for sale any article having a design which is a fraudulent or obvious imitation of a registered
design.
. Publishes or exposes for sale any article infringing the design.

Legal Consequences and Remedies (Section 22(2)):

The registered proprietor of the design has the exclusive right to protect the design and can seek the
following remedies
Statutory Damages / Penalty
● The infringer must pay ₹25,000 for every contravention,
but total compensation cannot exceed ₹50,000 for one design.
● The registered owner can file a civil suit for recovery of such amount.

Injunction
● The court may grant an injunction restraining the defendant from continuing the infringing activity.
● The proprietor can obtain temporary or permanent injunctions depending on the case.

Seizure or Forfeiture of Infringing Goods

● Court may order seizure, destruction or delivery-up of infringing goods or tools used for their
production.

Defences Available to the Defendant:

. The design is not new or original.
. The design was not registered.
. The use was for non-commercial or experimental purposes.
. The registration itself is invalid (can be challenged under Section 19).

Case Law Example:

Microfibres Inc. v. Girdhar & Co. (2009)
Delhi High Court held that piracy occurs when the essential features of a registered design are imitated
— even if some minor variations are made.

Conclusion:
Piracy of design discourages creativity and fair competition.
Therefore, the Designs Act, 2000 provides civil remedies and monetary penalties to protect the rights of
the registered proprietor and promote innovation in industrial design.

2. Compulsory Licensing

Meaning:
A Compulsory License is a license granted by the Government or Controller of Patents to a third party to
use a patented invention without the consent of the patent holder, under certain public interest
conditions.
Legal Basis:
● Sections 84–92, Patents Act, 1970 (as amended in 2005)
● Supported by Article 31 of the TRIPS Agreement

Objective:
To ensure that patent rights are not abused and that inventions serve public interest, particularly in:
● Public health
● Food security
● Affordable access to medicines

Grounds for Granting Compulsory License (Section 84):

After 3 years from the date of grant of patent, any person can apply for a compulsory license on the
following grounds:
. Non-working of Patent in India:
○ The patented invention is not being worked in India on a commercial scale.
. Reasonable Requirements of Public Not Met:
○ The patent owner fails to meet public demand adequately.
. Non-availability at Reasonable Price:
○ The product is not available at an affordable or reasonable price.

Authority:
● Application made to the Controller General of Patents, Designs and Trade Marks (CGPDTM).
● The Controller examines the application and grants license subject to terms and conditions (royalty,
scope, duration).

Special Provision: Section 92 (National Emergency):

The Government may declare compulsory licenses in cases of:
● National emergency,
● Public health crisis, or
● Extreme urgency.
Examples include pandemics, epidemics, or shortage of essential medicines.

Example Case:
Bayer Corporation v. Natco Pharma Ltd. (2013)
● India’s first compulsory license under Section 84.
● Natco was granted a license to produce Sorafenib Tosylate (cancer drug) because Bayer sold it at
₹2.8 lakh/month — unaffordable to most patients.
● Controller held Bayer failed to make the drug available at reasonable price.
 Conditions for Licensee:
● Must pay reasonable royalty to patent holder.
● Must work the patent primarily for supply in the Indian market.
● License is non-exclusive and non-assignable.

Purpose of Compulsory Licensing:

● To balance patent rights and public interest.
● To prevent abuse of monopoly.
● To promote accessibility and affordability of essential products.

Summary Table:

Aspect Piracy of Design Compulsory

Licensing
Law Section 22, Designs Sections 84–92,
Act, 2000 Patents Act, 1970
Meaning Unauthorized imitation Government-
of registered design authorized use of
patent without
consent
Nature Illegal act Legal under certain
conditions
Remedies Damages, Injunction, Reasonable royalty,
Seizure license under
conditions
Purpose Protect creator’s Ensure public access
design and prevent patent
abuse

Conclusion:
● Piracy in designs undermines creativity and industrial innovation; thus, strict remedies protect
design owners.
● Compulsory licensing ensures that patent rights do not hinder public welfare, especially in
●
healthcare and essential goods.
Together, these principles maintain the balance between innovation and social justice, which is the
core goal of modern Intellectual Property Law.