INTELLECTUAL PROPERTY RIGHTS
Introduction
Intellectual property (IP) is a term referring to creation of the intellect (the term used in studies of the
human mind) for which a monopoly (from greek word monos means single polein to sell) is assigned to
designated owners by law. Some common types of intellectual property rights (IPR), in some foreign
countries intellectual property rights is referred to as industrial property, copyright, patent and trademarks,
trade secrets all these cover music, literature and other artistic works, discoveries and inventions and words,
phrases, symbols and designs. Intellectual Property Rights are themselves a form of property called
intangible property.
Although many of the legal principles governing IP and IPR have evolved over centuries, it was not
until the 19th century that the term intellectual property began to be used and not until the late 20th century
that it became commonplace in the majority of the world.
Types of Intellectual Property
The term intellectual property is usually thought of as comprising four separate legal fields:
1. Trademarks
2. Copyrights
3. Patents
4. Trade secrets
1. Trademarks and Service Marks: A trademark or service mark is a word, name, symbol, or
device used to indicate the source, quality and ownership of a product or service. A trademark is used in
the marketing is recognizable sign, design or expression which identifies products or service of a particular
source from those of others. The trademark owner can be an individual, business organization, or any legal
entity. A trademark may be located on a package, a label, a voucher or on the product itself. For the sake
of corporate identity trademarks are also being.
General Logos:
The Trademark Registration Logo
In addition to words, trademarks can also consist of slogans, design, or sounds. Trademark provides
guarantee of quality and consistency of the product or service they identify.
Companies expend a great deal of time, effort and money/ in establishing
consumer recognition of and confidence in their marks.
Federal Registration of trademarks:
Interstate use of trademarks is governed by federal law, namely, the United States Trademark Act
(also called the Lanham Act), found at 15 U.S.C 1051et seq. In the United States, trademarks are generally
protected from their date of first public use. Registration of a mark is not required to secure protection for a
mark, although it offers numerous advantages, such as allowing the registrant to bring an action in federal
court for infringement of the mark.
Applications for federal registration of trademarks are made with the PTO. Registration is a fairly
lengthy process, generally taking anywhere from twelve to twenty-four months or even longer. The filing
fee is $335 per mark (Present $225 per class) per class of goods or services covered by the mark.
A trademark registration is valid for 10 years and may be renewed for additional ten year periods
thereafter as long as the mark is in used in interstate commerce. To maintain a mark the registrant is
required to file an affidavit with the PTO between the fifth and sixth year after registration and every ten
years to verify the mark is in continued use. Marks not in use are then available to others.
A properly selected, registered and protected mark can be of great value to a company or individual
desiring to establish and expand market share and better way to maintain a strong position in the
marketplace.
2. Copyrights: Copyright is a form of protection provided by U.S. law (17 U.S.C 101
et seq) to the authors of "original works of authorship" fixed in any tangible medium of
expression. The manner and medium of fixation are virtually unlimited. Creative
expression may be captured in words, numbers, notes, sounds, pictures, or any other
graphic or symbolic media. The subject matter of copyright is extremely broad, including
literary, dramatic, musical, artistic, audiovisual, and architectural works. Copyright
protection is available to both published and unpublished works.
Copyright protection is available for more than merely serious works of fiction or
art. Marketing materials, advertising copy and cartoons are also protectable. Copyright is
available for original working protectable by copyright, such as titles, names, short
phrases, or lists of ingredients. Similarly, ideas methods and processes are not protectable
by copyright, although the expression of those ideas is.
Copyright protection exists automatically from the time a work is created in fixed
form. The owner of a copyright has the right to reproduce the work, prepare derivative
works based on the original work (such as a sequel to the original), distribute copies of
the work, and to perform and display the work. Violations of such rights are protectable
by infringement actions. Nevertheless, some uses of copyrighted works are considered
“fair use” and do not constitute infringement, such as use of an insignificant portionof a
work for noncommercial purposes or parody of a copyrighted work.
Definition:
General Definition of copyright “Copyright owner”, with respect to any one of the
exclusive rightscomprised in a copyright, refers to the owner of that particular right.
Federal Registration of Copyrights: The works are protected under federal
copyright law from thetime of their creation in a fixed form. Registration, however, is
inexpensive, requiring only a $30 (present
$85) filing fee, and the process is expeditious. In most cases, the Copyright Office
processes applicationswithin four to five months.
Copyrighted works are automatically protected from the moment of their creation
for a term generally enduring for the author’s life plus an additional seventy years after
the author’s death. The policy underlying the long period of copyright protection is that it
may take several year for a painting, book, or opera to achieve its true value, and thus,
authors should receive a length of protection that will enable the work to appreciate to its
greatest extent.
3. Patents: A patent for an invention is the grant of a property right to the inventor,
issued by the United States Patent and Trademark Office. Generally, the term of a new
patent is 20 years from the date on which the application for the patent was filed in the
United States or, in special cases, from the date an earlier related application was filed,
subject to the payment of maintenance fees. U.S. patent grants are effective only within
the United States, U.S. territories, and U.S. possessions. Under certain circumstances,
patent term extensions or adjustments may be available.
There are three types of patents:
Utility patents may be granted to anyone who invents or discovers any new and useful
process, machine, article of manufacture, or composition of matter, or any new and useful
improvement thereof;
Design patents may be granted to anyone who invents a new, original, and ornamental
design for an articleof manufacture; and
Plant patents may be granted to anyone who invents or discovers and asexually
reproduces any distinct and new variety of plant.
Federal Registration of Copyrights: Patents are governed exclusively by federal
law (35 U.S.C 100 et seq). To obtain a patent, an inventor must file an application with
the PTO (the same agency that issues trademark registration) that fully describes the
invention. Patent prosecution is expensive, time consuming and complex. Costs can run
into the thousands of dollars, and it generally takes over two year for the PTO to issue a
patent.
Patent protection exists for twenty years from the date of filing of an application
for utility and patents and fourteen years from the date of grant for design patents. After
this period of time, the invention fall into the public domain and may be used by any
person without permission.
The inventor is granted an exclusive but limited period of time within which to
exploit the invention. After the patent expires, any member of the public is free to use,
manufacture, or sell the invention. Thus, patent law strikes a balance between the need to
protect inventors and the need to allow public access to important discoveries.
4. Trade Secrets: A trade secret consists of any valuable business information. The
business secrets are not to be known by the competitor. There is no limit to the type of
information that can be protected as trade secrets; For Example: Recipes, Marketing
plans, financial projections, and methods of conducting business can all constitute trade
secrets. There is no requirement that a trade secret be unique or complex; thus, even
something as simple and nontechnical as a list of customers can qualify as a trade secret
as long as it affords its owner a competitive advantage and is not common knowledge.
If trade secrets were not protectable, companies would no incentive to invest time,
money and effort in research and development that ultimately benefits the public. Trade
secret law thus promotes the development of new methods and processes for doing
business in the marketplace.
AGENCIES RESPONSIBLE FOR INTELLECTUAL PROPERTY REGISTRATION
United States Patents and Trademark Office:
The agency charged with granting patents and registering trademarks is the
United States Patent and Trademark Office (PTO), one of fourteen bureaus within the
U.S. Department of Commerce. The PTO, founded more than two hundred years ago,
employs nearly 700 (present 1000 employs) are working. At present it is located in 18
building in Arlington, Virginia. Its official mailing address is Commissioner of Patents
and Trademarks, Washington, DC 20231.
The PTO is physically located at 2900 Crystal Drive in Arlington, Virginia. Its
web site is [Link] and offers a wealth of information, including basic
information about trademarks and patents, fee schedules, forms, and the ability to search
for trademarks and patents. Since 1991, under the Omnibus Budget Reconciliation Act,
the PTO has operated in much the same way as a private business, providing valued
products and services to customers in exchange for fees that are used to fully fund PTO
operations.
It uses no taxpayer funds. The PTO plans to move all of its operations to
Alexandria, Virginia, by mid-2005. The PTO is one of the busiest of all government
agencies, and as individuals and companies begin to understand the value of intellectual
property, greater demands are being made on the PTO.
Legislation passed in 1997 established the PTO as a performance-based
organization that is managed by professionals, resulting in the creation of a new political
position, deputy secretary of commerce for intellectual property. In brief, the PTO
operates more like a business with greater autonomy over its budget, hiring, and
procurement. U.S patents issued its first patent in 1790. Since 1976 the text
and images of more than three million are pending for registration. The PTO is
continuing its transition filing for both trademarks and from paper to electronic filing for
both trademarks and patents.
The PTO is led by the Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office (the “Director”), who is
appointed by the President. The Secretary of Commerce appoints a Commissioner for
Patents and a Commissioner for Trademarks. Citations to many cases in this text will be
to “U.S.P.Q”., a reference to United States Patent Quarterly, a reporter of cases decided
by the Trademark Trial and Appeal Board (TTAB) as well as patent andcopyright cases.
INTERNATIONAL ORGANIZATIONS, AGENCIES AND TREATIES
There are a number of International organizations and agencies that promote the
use and protection of intellectual property. Although these organizations are discussed
in more detail in the chapters to follow, a brief introduction may be helpful:
International Trademark Association (INTA) is a not-for-profit international
association composed chiefly of trademark owners and practitioners. It is a global
association. Trademark owners and professionals dedicated in supporting trademarks and
related IP in order to protect consumers and to promote fair and effective commerce.
More than 4000 (Present 6500 member) companies and law firms more than 150
(Present 190 countries) countries belong to INTA, together with others interested in
promoting trademarks. INTA offers a wide variety of educational seminars and
publications, including many worthwhile materials available at no cost on the Internet
(see INTA’s home page at [Link] INTA members have collectively
contributes almost US $ 12 trillion to global GDP annually. INTA undertakes advocacy
[active support] work throughout the world to advance trademarks and offers educational
programs and informational and legal resources of global interest. Its head quarter in
New York City, INTA also has offices in Brussels, Shanghai and Washington DC and
representative in Geneva and Mumbai. This association was founded in 1878 by 17
merchants and manufacturers who sawa need for an organization. The INTA is formed to
protect and promote the rights of trademark owners, to secure useful legislation (the
process of making laws), and to give aid and encouragement to all efforts for the
advancement and observance of trademark rights.
World Intellectual Property Organization (WIPO) was founded in 1883 and is
specialized agency of the United Nations whose purposes are to promote intellectual property
throughout the world andto administer 23 treaties (Present 26 treaties) dealing with intellectual
property. WIPO is one of the 17 specialized agencies of the United Nations. It was created in
1967, to encourage creative activity, to promote the protection of Intellectual Property throughout
the world. More than 175 (Present 188) nations are members of WIPO. Its headquarters in
Geneva, Switzerland, current Director General of WIPO is Francis Gurry took charge on
October 1, 2008.
THE INCREASING IMPORTANCE OF INTELLECTAL PROPERTY
RIGHTS
Protecting Intellectual Property Rights
Technology has led to increase awareness about the IP
Some individuals and companies offer only knowledge. Thus, computer
consultant, advertisingagencies, Internet companies, and software implementers
sell only brainpower.
Domain names and moving images are also be protected
More than fifty percent of U.S. exports now depend on some form of intellectual
propertyprotection.
The rapidity with which information can be communicated through the Internet
has led to increasing challenges in the field of intellectual property.
The most valuable assets a company owns are its Intellectual property assets
Companies must act aggressively to protect these valuable assets from
infringement (breaching, violation of law) or misuse by others
The field of intellectual property law aims to protect the value of such investments
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