INTELLECTUAL PROPERTY LAW

Intellectual property is the fuel that drives innovation and creativity...

protect it fiercely.

-Unnat P Pandit

ABSTRACT :-

This article simplifies intellectual property (IP) rights, explains them and delves
into the depth of richness of IP laws. IP laws protect creations of the mind, such as
inventions, literary works, and trademarks, giving creators exclusive rights to their
work. This article deals with different types of IP , landmark judgements and trade
secret and explains them in simpler easy to understand words. It highlights how
these protections encourage innovation and creativity by ensuring that creators
alone can control and benefit from their inventions and works. It also establishes
the case about how these laws are very much the need of today’s globalized world
where ideas are exchanged and shared extensively , making it all the more
important to preserve and encourage these creations of mind and their rights

 What is Intellectual property law?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary
and artistic works; designs; and symbols, names and images used in commerce.1

Intellectual property rights are the rights given to person over the creations of their
minds. They give the creator an exclusive right over the use of his or her creation for a
certain period of time.

IP is basically intangible creation of human intellect; therefore, it is necessary to

protect these creations. That’s where IP laws come to the picture.

The best-known type of IP are patents, copyrights, trademarks and trade secrets.

The modern concept of intellectual property developed in England in 17th and 18th
century but the term “intellectual property” began to be used in the 19th century only.

1
WIPO <[Link] accessed 3 Aug 2024
  Types of Intellectual Property [IP]
1. Patent Law- Patent is a type of intellectual property right which is given to
protect the inventions and innovations. They protect inventions which are
unique and useful or inventions which offer significan improvements from
being stolen or corrupted and stops their unauthorised use and access. The
length of patent protection lasts , in general , up to 20 years , after which the
invention can be used by anyone.
 What can be patented?
An invention relating either to a product or process that is new, involving an
inventive step and capable of industrial application can be patented. However,
it must not fall into the categories of inventions that are non-patent-able under
sections 3 and 4 of the Act.
Patents protect technical products, processes and inventions and how those
things function. They’re common in the electronics and pharmaceutical
industries as they need the protection
To qualify for patent protection :-
 the invention must be new, inventive, and industrially applicable.
 It must offer a novel way of doing something or provide a unique solution to
a problem.
In addition, even if an existing creation simply undergoes slight modifications,
it will not qualify for patent protection.

As a member-nation of the WTO , India was required to amend or enact laws

to conform to the TRIPS agreement.
The Patents Act 1970, along with the Patents Rules 1972, came into force on
20th April 1972, replacing the Indian Patents and Designs Act 1911. The
Patents Act was largely based on the recommendations of the Ayyangar
Committee Report headed by Justice N. Rajagopala Ayyangar. One of the
recommendations was the allowance of only process patents with regard to
inventions relating to drugs, medicines, food and chemicals.
 Further this act was amended by the Patents (Amendment) Act 2005 wherein
product patent was extended to all or any fields of technology including food ,
drugs , chemicals and micro organisms , giving parents a wider scope.

There are three types of Patents :-

 Utility Patent
 Design Patent
 Plant Patent

2. COPYRIGHT

This is another branch of intellectual property rights. It provides protection to

creative works such as literature , music and software , and ensures that the
creators alone get the benefits and profits from them. It safeguards against
unauthorised use , ensures that rights of the creators are protected , and
empowers them to take legal recourse if their rights are unethically violated.

In simple terms , it gives creators exclusive rights over their creations , and
empowers them to take legal action if they are still infringed.

It not only ensures the rights of creators but also encourages them to practise
but their occupation without the fear of being misused.

There are many types of copyright available . Some most common examples
are literary, musical, artistic, choreographic, cinematographic copyrights etc.

Typically , the creator of the original work is considered the copyright owner
but in some cases these rights are sold to the individual(s) or business who
become the copyright owner.

Copyright refers to the legal right of the owner of intellectual property. In

simpler terms, copyright is the right to copy. This means that the original
creators of products and anyone they give authorization to are the only ones
with the exclusive right to reproduce the work. 2

2
Investopedia < [Link] accessed 3 Aug 2024
 The Copyright Act , 1957, governs the law pertaining to copyright in India.

The limits of these permitted purposes are defined by the Copyright Act of
1957. The Act contains provisions on fair use to achieve optimal balance
between copyright holders' rights and societal welfare.
The scope of Copyright is increasing in the digital age but so are the risks
pertaining to it.
Some of the challenges to copyright in the digital age are :-
Easy reproduction and publication , complex ownership , difficulty in
tracking, high cost of enforcement, fair use etc.

3. TRADEMARK
Under The Trade Marks Act, 1999 , the word “mark” is defined under Section
2(1)(i)(V)(m) , as “a device, brand, heading, label, ticket, name, signature,
word, letter, numeral”. The term “Mark” under the Act also includes the shape
of goods, packaging, or combination of colours or any other type of
combination.3
In simple terms , a trademark is a unique sign or symbol or word(s) used to
represent a business or its products. Once registered , that same symbol or
series of words cannot be used by any other organization , forever , as long as
it remains in use and proper paperwork and fees are paid.
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.
What can be trademarked?
The following things can be trademarked.
Any mark that distinguishes the business activity of one person from another
and can be graphically represented can be trademarked.4 Any items from the
list given below can be trademarked:-

3
Sneha Mahawar , ‘What is a
Trademark?’(2022)<[Link] on 3 Aug 2024
4
CS Shivani Vyas , ‘What can be Trademarked?’(2019)<[Link]
registered-as-a-trademark>accessed 3 Aug 2024
  Name - Names of product, business, or name of any individual or surname
can be trademarked but such a name must be used for any business, trading
or service. It can be in any specific text, colour, and style.

 Product name - Many companies take trademark registration for the name
of their products. For example, “McVEGGIE”, “McMUFFIN”,
“MCCHICKEN”, “MCMASALA”, etc. All these are product names of
McDonalds Corporation on whose behalf the trademark has been
registered.

 Business name - A trademark can also be taken in the name of the business
or company. For Example, McDonalds’, Parle, Reliance Shoppe”,
“Reliance Power”, “ Reliance Fresh”. These all are business names related
to what can be trademarked in India.

 Name of a person - The name of a person can also be trademarked if the

persons earn through such a name. Or such a person can allow his name to
be used by any other person. These types of trademarks are very common
for celebrities. For example “SHAH RUKH KHAN”, “KATRINA KAIF”.
They have trademarked their name.

 Logo or symbols - A specific logo for your brand or product or service

can also be trademarked under the Indian Trade Marks Act. It is also
known as a “Device”, given that it must be unique. Such symbols create its
own identity and there is no need to describe them with their brand name.

TRADEMARK INFRINGEMENT
Trademark infringement means the unauthorized use of a trademark or service mark.
This use can be in connection with goods or services and may lead to confusion,
deception, or a misunderstanding about the actual company a product or service came
from. Unauthorized and unethical use of trademark is strictly prohibited and if
practiced , it is a culpable/punishable offence and the penalties include temporary or
permanent injunction , damages or both and even the cost of legal proceedings

4. GEOGRAPHICAL INDICATION OR GI TAG

Geographical Indications is a sign provided to certain commodities or products based

on their geographical locations which include the place of origin, region, town or
country. The Darjeeling Tea is India’s first product to get the geographical indication
tag. This tag is considered as a certification which includes whether the product is
produced according to traditional methods and certain specific qualities which
provides reputation based on geographical origins. This facilitates that no other
authority other than authorised users are permitted to take the popular product name5

In similar terms, GI tag is an indication that the product originates from a definite
geographical territory. It possesses a particular character, reputation & special
attribute or quality. It holds a sense of trust, authenticity , character and originality.

It is basically a distinctive sign which has a specific origin and which showcases the
qualities or traits that are possessed by the good. It is unique to a region and protects
the authenticity and reputation of the product from being ruined. It prevents any third
party from taking advantage of the product or altering and misusing it in the name of
the original product.
However , The protection of GI does not allow the holder to disregard any other
individual from using the product , it merely protects the originality of the product
and bars business or individual(s) from selling the second hand or duplicate products
taking the advantage of the reputation of the original product. A geographical
indication is regulated and accommodated under Intellectual property rights.

The standards of protection and safeguarding for Geographical Indication took its
forms from the Paris Convention for protection of intellectual property, 1833.

 Fist point to note is that , India is a participant and member of the WTO. It has
enacted the Geographical Indications of Goods Act, 1999.
 The first Indian product to get the GI tag was the Darjeeling Tea in 2004.
 The validity of geographical indication is for 10 years. It can be renewed after the
completion of this period of 10 years.

There are various merits of GI tag which include the benefits that it boosts export in
the economy, also fosters growth of economic wealth , In addition to that it deters

5
Jeffy Johnson , ‘What is geographical indication in India’(2021)<[Link]
geographical-indication-in-india/>accessed 8 Aug 2024
misuse , and helps increase profits in tourism and trade. It provides legal protection to
the product and prohibits any unauthorized use.

5. TRADE SECRET
For any business or an endeavor to succeed , there are numerous processes
and trials at work. There are very many efforts at bringing out a perfect
business endeavor and countless amount of valuable work , secrets and
hours of work and efforts are put into it which are unique to them. The
strategies of making profits as a firm and the marketing , designing , or
processing techniques are what help them reach the milestone and hence ,
are needed to be protected. Since these secrets are unique to them and are
at work to make them grow , they are to be protected from getting out
which could lead to other firms getting a competitive advantage over them.

In today’s globalized world, companies and individuals are taking drastic

measures to protect their trade secrets against accidental, inadvertent or
wilful misappropriation, misuse, sabotage, loss or theft.

Trade Secrets are not the most the popular of the intellectual property
rights , yet they are crucial in today’s globalized world where ideas are
shared and the entire globe is converted into a small village.

Some popular examples of trade secret are:

 Google’s search algorithm

 Coca cola’s recipe
 KFC’s original 11 herbs and spices

There are a plethora of definitions of what constitutes trade secrets, but, in general,
the essentials of a trade secret are:

 The trade secret should be known by a limited number of people within the
organisation.
 There should be concrete steps taken to prevent the trade secret from being
leaked to the public.
 The trade secret should be of such nature that it is of commercial value to the
business or individual.6
6
Aaron Thomas , ‘Trade Secrets in
IPR’(2024)<[Link]
%20Penal,dealt%20with%20in%20different%20provisions>accessed 3 Aug 2024
TRADTIONAL KNOWLEDGE IN IPR

 WIPO (World Intellectual Property Organisation) defines traditional

knowledge as the knowledge, skills, practices, and know-how that are developed,
sustained, and passed on from generation to generation within a community, often
forming part of its cultural or spiritual identity.
 They are practices or knowledge which are passed on from generation to
generations , arising from conventional intellectual activity, which involves
know-how, habits, skills, inventions

Traditional knowledge, particularly in developing and underdeveloped countries,

should be afforded effective security. Such security would concern the recognition of
the rights of original traditional knowledge holders and the unauthorized acquisition
by third parties of rights over traditional knowledge. With the current trends of
globalization, a large degree of international collaboration and cooperation is required
to effectively protect and grow traditional information, and any such protective
strategy needs to take into the protection of their cultural knowledge from being used
as IPR (inventions etc)

For example, India has developed a searchable database of traditional medicine which
can be used by patent examiners as proof of prior art when reviewing patent
applications. This followed a well-known case in which the US Patent and Trademark
Office issued a patent (later revoked) for the use of turmeric for the treatment of
wounds, a property well known to traditional Indian cultures, and recorded in ancient
Sanskrit texts.7

Defensive strategies could also be used to protect sacred cultural manifestations, such
as sacred symbols or words from trademark registration or sacred books from
copyright registrations.

IPR Treaties and Conventions

It was with the Paris Convention for the Protection of intellectual properties,1883,
which is commonly known as the Paris Convention, that the principles of intellectual
property rights began to take shape. It was followed by the Convention for the
Protection of Literary and Artistic Works, 1886 which is infamously known as the
Berne Convention

Both the above-mentioned conventions were negotiated and also re-negotiated as well
as amended throughout the years, and eventually, they were finally incorporated and
advanced in Trade-Related Aspects of Intellectual Property Rights (TRIPS) through

7
Sashwat Kaushik , ‘Traditional Knowledge in IPR’(2024)<[Link]
traditional-knowledge/>accessed 3 Aug 2024
the Uruguay Round of Negotiations from 1986 to 1994, which came into effect from
the 1st of January 1995.8

1. Paris Convention , 1883 - The Paris Convention covers all forms of industrial
property, such as patents, trademarks, industrial designs, utility models,
geographical indications, service marks, trade names, and the prevention of
unfair competition.
2. Berne Convention ,1886 - The Berne Convention covers the rights of authors as
well as the preservation of works. The treaty is founded on the below-mentioned
fundamental principles and includes a number of provisions that specify the
minimum level of protection that must be provided, as well as exceptional
measures that developing nations may apply.
3. World Intellectual Property Organization Convention - The World Intellectual
Property Organization Convention, which serves as the organization governing
document, was signed in Stockholm on July 14, 1967. It went into effect in 1970
and underwent an amendment in 1979. The World Intellectual Property
Organization is an intergovernmental organization that joined the United Nations
system of organization’s specialized agencies in 1974

It was established in 1967, with its headquarters in Geneva, Switzerland. It

carries or mandates poster innovation economic development and creativity by
providing a framework for the protection of intellectual property globally.

LANDMARK JUDGEMENTS OF IPR

1. Bajaj Electricals Limited vs. Gourav Bajaj & Anr.

Facts: The Plaintiff was a part of the renowned Bajaj industry conglomerate, and had
electrical stores of the same brand name. The Defendant owned 2 electrical stores and
used the name ‘Bajaj’ as a part of his store names and also had a website for the same.
Besides this, the Defendant used the expression “Powered by: BAJAJ” in the course
of his trade. The Plaintiff established their right over the name by proving that ‘Bajaj’
had been legally granted the status of a well-known trademark, and thus the
Defendant had no right to use it.
Held: The Bombay High Court held that such defense was not valid as the Plaintiff
had adequately proved the mala fide intention of the Defendant behind the adoption of
the name ‘Bajaj’ in the course of trade. The Court passed an interim injunction against
the use of the trademark in the store names as well as the domain name of the
Defendant.

2. International Society for Krishna Consciousness (ISKCON) vs. Iskcon

Apparel Pvt. Ltd & Ors

8
Shriya Singh , ‘Treaties for Intellectual Property Rights(IPR)
Protection(2024)<[Link]
property-rights/>accessed 3 Aug 2024
Facts: The present suit was filed before the Bombay High Court for alleged
trademark infringement and passing off. The Plaintiff contended that by selling
garments under the name of ‘Iskcon’, the Defendant was infringing their trademark
and attempting to pass off his brand as being associated with the Plaintiff group. The
Plaintiff also sought to get their mark declared as a well-known trademark.

Held: The Court declared that in the present scenario, a clear case of trademark
infringement had been established, and hence ordered the Defendants to refrain using
the Plaintiff’s mark. It was also concluded that the Plaintiff’s mark satisfied all the
statutory requirements of a well-known trademark, and thus the Court declared it as
such.9

CONCLUSION
In conclusion, intellectual property laws play a crucial role in fostering
innovation and protecting creator’s rights. By balancing the interests of
inventors, artists, and the public, these laws encourage creativity and
economic growth.
As technology and global markets evolve, The need to protect and promote
the intellectual property is needed so strengthening these laws while
promoting accessibility and collaboration can drive progress and sustain a
collaborative , vibrant ecosystem.

9
Nisha Modak , ‘top 5 intellectual property rights judgement’(2020)<[Link]
landmark-intellectual-property-rights-judgments/>accessed 3 Aug 2024