Module-5

Intellectual Property Rights

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

Intellectual property is divided into two categories:

1. Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and

2. Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical
works, artistic works such as drawings, paintings, photographs.

Intellectual property rights protect the interests of creators by giving them property rights over their
creations.

The TRIPS Agreement (Trade related Intellectual property systems), which came into effect on 1
January 1995.

The areas of intellectual property that it covers are:

(i) Copyright and related rights (i.e. the rights of performers, producers of sound recordings)

(ii) Trademarks

(iii) Geographical indications

(iv) Industrial designs

(v) Patents

Protection of Intellectual Property under TRIPS:

The TRIPS Agreement provides for protection of various kinds of intellectual property rights to ensure
that adequate standards of protection exist in all member countries.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international

treaty administered by the World Trade Organization (WTO). It sets out minimum standards for the
protection of various forms of intellectual property (IP) among member countries. TRIPS aims to ensure
that IP rights are protected and enforced in a manner conducive to trade and investment. Here's how
TRIPS provides protection for intellectual property:

• Patents: TRIPS requires member countries to provide patent protection for inventions
in all fields of technology, subject to certain conditions such as novelty. It sets minimum
standards for patent term duration, exclusive rights conferred to patent holders, and
procedures for patent application and enforcement.

• Copyrights: TRIPS mandates member countries to provide copyright protection for

literary and artistic works, including books, music, films, and computer programs. It
 establishes minimum standards for copyright term duration, the rights of authors and
creators, and limitations and exceptions to copyright protection.

• Trademarks: TRIPS requires member countries to provide trademark protection for

distinctive signs used to distinguish goods and services in the marketplace. It sets out
minimum standards for trademark registration, rights conferred to trademark owners,
and procedures for trademark enforcement.

• Geographical Indications: TRIPS mandates member countries to provide protection

for geographical indications (GIs) to prevent misleading use of indications that identify
products as originating from a particular place when they do not.

Intellectual property system in India:

1. Trademarks:
The Trade Marks Act, 1999, governs the registration and protection of trademarks in India.
Examples:
• Brand names: Apple, Nike, Coca-Cola
• Product names: iPhone, Air Jordan, Coke
• Company logos: Golden Arches (McDonald's), Nike swoosh, Apple logo
• Slogans: Just Do It (Nike), Think Different (Apple), I'm Lovin' It (McDonald's)

2. Patents:
1. The Patents Act, 1970, governs the grant and regulation of patents in India.
2. The Indian Patent Office is responsible for granting patents.
Examples:
• New inventions: The light bulb, the telephone, the computer
• New processes: The manufacturing process for a new drug, the method for creating a new type of
solar cell
• New designs: The design of a new car, the design of a new computer chip

3. Copyrights:
1. The Copyright Act, 1957, protects the rights of creators in original literary,
artistic, and musical works.
2. The Copyright Office is responsible for copyright registration.
Examples:
• Literary works: Books, poems, scripts, musical pieces
• Artistic works: Paintings, sculptures, photographs, movies
• Software programs: Computer software, video games
• Technical works: Engineering drawings, architectural plans
4. Designs:

The Designs Act, 2000, provides protection to industrial designs.

Examples:
The shape of a product: The shape of a Coca-Cola bottle,
The shape of a Samsung Galaxy phone
• The pattern on a product: The pattern on a Nike sneaker
• The color scheme of a product: The color scheme of a Starbucks coffee cup

5. Geographical Indications (GIs):

1. The Geographical Indications of Goods (Registration and Protection) Act, 1999,
protects the geographical indications of goods and preventing unauthorized use
of products associated with specific regions.
2. The Registrar of Geographical Indications is responsible for the registration of
GIs.
Example:
1. Champagne: Champagne is a sparkling wine produced exclusively in the Champagne region of
France. The term "Champagne" is protected by GI laws to ensure that only wines produced in this
region according to specific methods can bear the name.
2. Darjeeling Tea: Darjeeling tea is a type of black tea grown in the Darjeeling district of West Bengal,
India. It is known for its unique flavor and aroma, which are attributed to the region's climate, soil,
and altitude. The term "Darjeeling" is protected as a GI to ensure that only tea produced in this
region can be labeled as such.

Patents Act, 1970:

After India became a signatory to the TRIPS agreement forming part of the Agreement establishing
the World Trade Organization (WTO) for the purpose of reduction of distortions to international
trade and promotion of effective and adequate protection of intellectual property rights, the Patents
Act, 1970 has been amended in the year 1995, 1999, 2002 and 2005 to meet its obligations under
the TRIPS agreement. The Patents Act has been amended keeping in view the development of
technological capability in India, coupled with the need for integrating the intellectual property
system with international practices and intellectual property regimes.
Subsequently the rules under the Patent Act have also been amended and these became effective
from May 2003. These rules have been further amended by Patents (Amendment) Rules 2005 w.e.f
01.01.2005. Thus, the Patent Amendment Act, 2005 is now fully in force and operative.
 Salient features of Design Act 2000:
1. Definition of Design: The Act defines a design as the features of shape, configuration,
or pattern.
2. Registration of Designs: Registration provides the owner exclusive rights to use the
design.
3. Novelty and Originality: To be registrable, a design must be new or original. It should
not have been disclosed to the public in India or any other country before the filing date
of the application for registration.
4. Duration of Protection: The Act provides protection for a registered design for a period
of ten years from the date of registration, which can be further extended for another five
years, subject to payment of prescribed renewal fees.
5. International Recognition: Act helps in international recognition when design is
registered.
6. Infringement: Unauthorized use of a design constitutes design infringement. The
owners can take legal action against infringers to protect their rights.
Salient features of Trademarks:
1. Distinctiveness: A trademark should be capable of distinguishing the goods or services of one
trader from those of others.
2. Duration of Protection: Once registered, a trademark can be protected indefinitely, as long as it is
continuously used in commerce and renewal fees are paid as required by law.
3. Exclusive Rights: Trademark owners have exclusive rights to use their marks. They can prevent
others from using similar marks.
3. Infringement: Unauthorized use of a registered trademark, constitutes trademark infringement.
Trademark owners can take legal action against infringers to protect their rights.
4. Licensing: Trademark owners can license their marks to others for use in connection with specific
goods or services.
[Link] and Maintenance: trademarks must be renewed every 10 years.

The salient features of Geographical Indications:

1. Protection of Rights: GIs provide legal protection to producers from a particular
geographical area. This protection helps prevent misuse, thereby safeguarding the
interests of producers and consumers.
2. Economic Value: GIs can enhance the economic value of products associated with
specific geographical origins.
3. Cultural and Traditional Heritage: GIs reflect the cultural and traditional heritage of
specific regions or communities.
4. Duration of Protection: GIs are protected indefinitely.
5. Promotion and Marketing: GIs can be used as valuable marketing tools to promote
products associated with specific geographical origins.
The procedure for filing a patent:
1. Preparation of Invention Disclosure: The first step in filing a patent is to prepare a detailed
description of the invention, including its technical features, functions.
2. Conducting a Patent Search: Before filing a patent application, it's advisable to conduct a
comprehensive patent search to determine if the invention is novel.
3. Engaging a Patent Attorney or Agent: Engaging a qualified patent attorney or agent can greatly
improve the chances of success.
4. Drafting the Patent Application: With the assistance of a patent attorney or agent, the inventor
prepares a formal patent application. This typically includes a detailed description of the
invention.
5. Filing the Patent Application: Once the patent application is complete, it is submitted to the
appropriate patent office along with the required filing fees.
6. Examination by the Patent Office: After filing, the patent application undergoes examination
by the patent office to assess its compliance with patentability requirements such as novelty, and
industrial applicability.
7. Response to Office Actions: If the patent examiner raises objections or rejections during
examination, the inventor must respond to these office actions by addressing the examiner's
concerns and making any necessary amendments to the application.
8. Grant or Refusal of Patent: If the patent office determines that the invention meets all
patentability requirements, a patent will be granted.
9. Payment of Maintenance Fees: Once a patent is granted, the inventor must pay periodic
maintenance fees to keep the patent in force for its full term. Failure to pay these fees may result
in the expiration of the patent.