Intellectual Property Rights

Our legal system provides certain rights and protections for owners of property. The kind of
property that results from the fruits of mental labor is called intellectual property. Rights and
protections for owners of intellectual property are based on patent, trademark and copyright
laws and state trade secret laws.

In general:

 Patents protect inventions of tangible things

 Copyrights protect various forms of written and artistic expression
 Trademarks protect a name or symbol that identifies the source of goods or services.

i Patents
1. What is an Invention?

1.1 Section 2(1)(j) of the Indian Patent Act, 2005, defines the "invention" as a new product
or as process involving an inventive step and capable of industrial application.

1.2 Under the Act "New invention" is defined under section 2(1) (l) of the Patents Act

"New invention" means any invention or technology which has not been anticipated by
publication in any document or used in the country or elsewhere in the world before the
date of filing of patent application with complete specification, i.e., the subject matter
has not fallen in public domain or that it does not form part of the state of the art.

Thus, according to this definition of new invention, the Indian Patent Act, talks of
absolute novelty, i.e. the invention should have neither been used anywhere in the
world nor published in any part of the world. However, the later sections of the act for
the purpose of anticipation and opposition proceedings deal with the relative novelty
i.e. not used in India and not published in any part of the world.

1.3 Exceptions to the Novelty Rule-

There are a few exceptions where the rule of novelty is not applicable. These cases are
as follows:

i. Subject matter published without the consent of the inventor.

ii. The invention was published in consequence of the display in an exhibition notified by
the Government or reading the paper before a Learned Society. Grace period of 12
months is given in such cases to file the patent application.
 iii. Previous communication to Government of India.
iv. Public working for reasonable trials.

2. Non patentable inventions are given in Section 3 of the Indian Patent Act:

Section 3 (a): Frivolous inventions

Section 3 (b): Inventions which are contrary to Law or Mortality or injurious to public
health

Section 3 (c): Mere discovery of a scientific principle or formulation of an abstract theory.

Section 3 (d): The mere discovery of a new form of a known substance which does not
result in the enhancement of the known efficacy of that substance or the mere discovery
of any new property or new use for a known substance or of the mere use of a known
process, machine or apparatus unless such known process results in a new product or
employs at least one new reactant is not an invention.

Section 3(d) provides an explanatory clause to make it more clear which reads as follows:

(Explanation- For the purposes of this clause, salts, esters, ethers, polymorphs,
metabolites and pure form).

COPYRIGHT

1. WHAT IS COPYRIGHT?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights
including, inter alia, rights of reproduction, communication to the public, adaptation and
translation of the work. There could be slight variations in the composition of the rights
depending on the work.

2. DURATION OF THE COPYRIGHT-

Lifetime of the author + sixty years from the beginning of the calendar year next following the
year in which the author dies

 Literary
 dramatic,
  musical and
 artistic works

Until sixty years from the beginning of the calendar years next following the years in case
of :-
 Anonymous and pseudonymous works
 Posthumous work
 Cinematograph films
 Sound records
 Government work
 Public undertakings
 International Agencies
 Photographs

3. WHAT ARE THE CLASSES OF WORKS FOR WHICH COPYRIGHTS PROTECTION IS

AVAILABLE IN INDIA

Copyright subsists throughout India in the following classes of works:

o Original literary, dramatic, musical and artistic works;

o Cinematograph films; and

o Sound recordings.

4. WHAT IS AN ARTISTIC WORK?

An artistic work means-

o a painting, a sculpture, a drawing (including a diagram, map, chart or plan),

 an engraving or a photograph, whether or not any such work possesses
artistic quality;

o a work of architecture; and

o any other work of artistic craftsmanship.

5. WHAT IS A MUSICAL WORK?

"Musical work" means a work consisting of music and includes any graphical notation of
such work but does not include any words or any action intended to be sung, spoken or
performed with the music. A musical work need not be written down to enjoy copyright
protection.

6. WHAT IS A SOUND RECORDING?

"Sound recording" means a recording of sounds from which sounds may be produced
regardless of the medium on which such recording is made or the method by which the
sounds are produced. A phonogram and a CD-ROM are sound recordings.

7. WHAT IS A CINEMATOGRAPH FILM?

"Cinematograph film" means any work of visual recording on any medium produced
through a process from which a moving image may be produced by any means and
includes a sound recording accompanying such visual recording and "cinematograph" shall
be construed as including any work produced by any process analogous to cinematography
including video films.

Trademark

8. WHAT IS A TRADE MARK

A Trade Mark is a visual symbol in the form of a word , a device ,or a label applied to articles of
commerce with a view to indicate to the purchasing public that is a good manufactured or
 otherwise dealt in by a particular person as distinguished from similar goods dealt or
manufacture by other persons

9. OBJECT OF TRADE MARK

IS to deal with the precise nature of the rights which a person can a cquire in respect of a TM-
The mode of acquisition of such rights -the method of transfer of those rights to others-the
precise nature of infringement of such rights-and the remedies available in respect thereof.

10. FUNCTIONS OF A TRADE MARK

1. It identifies the product of its origin  2. It guaranties its unchanged quality 3. It advertises the
products & 4. It creates an image for products.

11. WHAT IS A GOOD TRADE MARK

1. It should be easy to pronounce and remember if it is word mark
2. In case of a device mark -should be capable of being described by a single word.
3. It was be easy to spell correctly and write legibly
4. It should not be descriptive
5. It should be short
6. It should appeal to the eye as well as the ear.
[Link] should not belong to the class of marks prohibited for registration
8. It should satisfy the requirements of registration.

Trademark protection

Trademark Protection is a legal function .In small enterprises one of the tasks of the legal
department is to assure the protection of company's trademarks. In large enterprises there is
need to create a specific department known as ' Trademarks department' which will look after
the ' Trademarks Management

Since trademark protection is a legal function, the trade marks department best assure its role
when it is integrated in the legal function of an organization.

The principal duty of the Trademarks Department is to protect and administer the trademark of
the company i.e. by getting registration under the relevant laws of a particular country, the
country of registration, the list and classes of goods and the services covered , renewals, action
against the infringes and dishonest users and so on.
 Geographical Indication

What is a Geographical Indication?

A geographical indication (GI) is a sign used on products that have a specific geographical origin
and possess qualities or a reputation that are due to that origin. In order to function as a GI, a
sign must identify a product as originating in a given place.

A geographical indication right enables those who have the right to use the indication to
prevent its use by a third party whose product does not conform to the applicable standards.
For example, in the jurisdictions in which the Darjeeling geographical indication is protected,
producers of Darjeeling tea can exclude the use of the term “Darjeeling” for tea not grown in
their tea gardens or not produced according to the standards set out in the code of practice for
the geographical indication.