IPR- Intellectual Property Right

What is Intellectual Property?

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.
IP is protected in law by, for example, patents, copyright, trade secrets and trademarks, which
enable people to earn recognition or financial benefit from what they invent or create. By striking
the right balance between the interests of innovators and the wider public interest, the IP system
aims to foster an environment in which creativity and innovation can flourish.
Copyright
What is copyright?
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their
literary and artistic works. Works covered by copyright range from books, music, paintings,
sculpture, and films, to computer programs, databases, advertisements, maps, and technical
drawing. Exhaustive lists of works covered by copyright are usually not to be found in legislation.
Nonetheless, broadly speaking, works commonly protected by copyright throughout the world
include:
literary works such as novels, poems, plays, reference works, newspaper articles; computer
programs, databases; films, musical compositions, and choreography; artistic works such as
paintings, drawings, photographs, and sculpture; architecture; and advertisements, maps, and
technical drawings.
Copyright protection extends only to expressions, and not to ideas, procedures, methods of
operation or mathematical concepts as such. Copyright may or may not be available for a number of
objects such as titles, slogans, or logos, depending on whether they contain sufficient authors.
Copyright relates to artistic and literary creation such as poem, novel, painting, computer software
etc. In recent times, the term Intellectual Property is used to include other forms, such as, plant
variety, integrated circuits etc.
Duration/Term of Copyright
In the case of original literary, dramatic, musical and artistic works, the duration of copyright is the
lifetime of the author or artist, and 60 years counted from the year following the death of the
author.
In the case of cinematograph films, sound recordings, posthumous publications, anonymous and
pseudonymous publications, works of government and works of international organisations are
protected for a period of 60 years which is counted from the year following the date of publication.

What kind of works can be protected under copyright

The following categories of works typically come under copyright protection:
 Literary works such as novels, plays, poems, and newspaper articles;
 Computer programs and databases;
 Films, musical compositions, and choreography;
 Artistic works such as photographs, paintings, drawings, and sculpture;
 Architecture and advertisements, maps, and technical drawings.
In India, the term of copyright protection extends throughout the lifetime of the author and then 60
years after his death.
Law relating to copyright in India : the Copyright Act, 1957
The Copyright Act, 1957 is a comprehensive legislation dealing with copyrights in India. The Act
regulates the various aspects relating to copyright regime in India such as:
 Registration of copyright
 Publication, term of copyright
  Assignment, and licence of copyright
 Special rights of broadcasting organisation and performer’s rights
 Infringement of copyright and remedies thereof
 Establishment of copyright authorities and copyright societies
 International Copyright
The term of copyright protection provided under the Act for the various categories of works is given
below:
1. Literary, dramatic, musical and artistic works: Life of the author plus 60 years after death.
2. Anonymous and pseudonymous works: 60 years from the date of publication. However, if
the identity of the author is disclosed before the expiry of that 60 years, then the term of
protection shall be life of the author plus 60 years after death.
3. Posthumous works: 60 years from publication.
4. Cinematograph films: 60 years from publication.
5. Sound recordings: 60 years from publication.
6. Government work: 60 years from publication.
7. Works of public undertakings: 60 years from publication.
8. Works of international organisations: 60 years from the publication of the work.
Copyright infringement
Section 51 of the Copyright Act, 1957 provides for ‘What constitutes copyright infringement’.
Copyright is said to be infringed:
1. when a person does something that the owner of the copyright has the exclusive right to do,
or permits for profit the use of any place for the purpose of the communication of the work
to the public, where such communication constitutes an infringement of the copyright in the
work, without a licence or in violation of the conditions of the licence.
2. When any person makes for sale or hire, sells or lets for hire, or displays or offers for sale or
hire, or distributes either for the purpose of trade or to such an extent as to prejudice the
owner of the copyright, or exhibits in public, or imports into India any infringing copies of
the work.
Section 52 enlists the acts which do not constitute an infringement of copyright such as fair dealing
in any work for personal, private use or for research, reproducing any work for the purpose of a
judicial proceeding or replication by a teacher or a pupil in the course of teaching etc.
It is pertinent to note that the Copyright Act provides for both civil and criminal remedies against
infringement of copyright.
How to register a copyright in India
The Registrar of Copyrights maintains a Register of Copyrights wherein he enters the names or titles
of works and the names and addresses of authors, publishers and owners of the copyright. This
entering or recording of names and other particulars of the copyright owners in the register of
copyrights is called Registration of copyright.
The procedure for registration of copyright in India is provided under Section 45 of the Copyright
Act, 1957 read with Chapter XIII of the Copyright Rules, 2013.
Steps to register copyright
1. Filing of application: The author/publisher/owner or any other person interested in the
copyright can make an application (Form-XIV of Copyright Rules) for registration of copyright
to the Registrar of Copyrights. Such application must be accompanied by the prescribed fee
for entering particulars of the work in the Register of Copyrights.
Also, an application for registration of copyright shall be in respect of one work only. It should be
signed only by the applicant, who may be the owner or author of the right. In case, the application is
made by the owner of the copyright, an original copy of a no-objection certificate issued by the
author in the favour of the owner has to be submitted.
2. Application for registration of copyright in an unpublished work: An application for
registration of an unpublished work should be accompanied by two copies of the work.
 3. Application for registration regarding an artistic work that is being used or could be used in
connection with any goods or services: In case the application for registration is regarding an
artistic work that is or can be used in relation to any goods or services, the application must
include a statement along with a Certificate from the Registrar of Trademarks that no
trademark identical to or deceptively similar to such artistic work has been registered under
the Trademarks Act, 1999 or no such application has been made.
4. Application for registration in respect of an artistic work which is capable of being registered
as a design: In this case, the application must be supported by an affidavit declaring that:
1. The design has not been registered under the Designs Act, 2000, and
2. That it has not been applied to an article through an industrial process and reproduced more
than 50 times.
3. Mode of filing the application: The application for registration of copyright can be filed in
following modes:
1. By visiting the Copyright Office in person; or
2. By post; or
3. By online facility i.e., [Link]
6. Notice of application: The person applying for registration of copyright has to give the notice
of the application to every person who claims to have, or has any interest in the subject
matter of the copyright or who is disputing the rights of the applicant to the copyright.
7. Entering of particulars in Register of Copyright: A thirty day period is given for filing of
objections and if no objections to the registration are received by the Registrar, and on being
satisfied that the particulars stated in the application are correct, the Registrar of Copyright
shall enter such particulars in the Register of Copyrights.
8. Completion of registration process: The registration process is complete when a copy of the
entries made in the register of copyrights is signed and issued by the Registrar of Copyrights
or by the Deputy Registrar of Copyrights. Also, every entry made by the Registrar of
Copyrights has to be published by him in the prescribed manner.
Need and benefits of registration of copyright
The registration of copyright is optional. However, the registration of copyright offers several
advantages to the author or owner of copyright. This can be discerned from Section 48 of the
Copyright Act. Section 48 provides that the register of copyright is prima facie evidence of the
particulars entered therein and shall be admissible in evidence in all courts. Thus, a person who has
got the copyright registered in his name is generally presumed to be the author/owner of the work.
Registration of copyright is beneficial due to the following reasons:
 It allows the owner to protect his work from being used in an unauthorised manner.
 It becomes easier to claim ownership and royalties for your work when it is to be used or
adapted in any manner.
 Copyright registration specifies the date of publication.
 Registration of copyright in your name might work in your favour in case of any claim of
copyright infringement.
Patent:-
A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the
patent owner with the right to decide how - or whether - the invention can be used by others. In
exchange for this right, the patent owner makes technical information about the invention publicly
available in the published patent document.
What is a patent?
A patent is an exclusive right granted for an invention, which is a product or a process that provides,
in general, a new way of doing something, or offers a new technical solution to a problem. To get a
patent, technical information about the invention must be disclosed to the public in a patent
application.
In principle, the patent owner has the exclusive right to prevent or stop others from commercially
exploiting the patented invention. In other words, patent protection means that the invention
cannot be commercially made, used, distributed, imported or sold by others without the patent
owner's consent.
Patents are territorial rights. In general, the exclusive rights are only applicable in the country or
region in which a patent has been filed and granted, in accordance with the law of that country or
region.
Patent right is granted for a limited period of time i.e. 20 years from the date of filing. It gives
territorial right, exclusive right and can been forced only in the country where it has been granted.
The grant of patent right by the government does not mean that the government itself would
automatically enforce the patent right. It is up to the patentee/assignee to bring an action, usually
under civil law, for any infringement of the patent right.

What kind of protection is given by patents

 The patent owner possesses the exclusive right to prevent others from commercially
exploiting the patented invention.
 Third parties are prevented from manufacturing, using, distributing, selling etc. the patented
invention/product without the consent of the patent owner.
Patent law in India: the Patents Act, 1970
The invention of a person can be patented only if the procedure and other requirements prescribed
in the Patents Act, 1970 are fulfilled. The Patent Act, 1970 provides for a detailed procedure for
obtaining a patent, right from the filing of an application to the grant of a patent. The Act also
contains provisions for rights and obligations of the patentee, term of the patent, transfer of patent,
surrender, revocation, and restoration of patent, infringement of patent, and remedies thereof. The
Act provides for patent protection for a period of 20 years after which the technology or invention
goes to the public domain.
Section 3 of the Act provides a list of non-patentable inventions for which no patent could be
granted. Under Section 4, the inventions relating to atomic energy are also declared as non-
patentable.
It is worth mentioning that earlier no product patent could be granted for medicine, food items and
chemicals and only the process of manufacturing medicines, food items and chemicals could be
patented. However, after the Patent (Amendment) Act, 2005 product patents can be issued for
manufacturing these products.
Patent infringement and remedies
Any violation of the rights of the patentee constitutes infringement of patent such as a colorable
imitation of your invention or taking of the essential features of your invention. Under the Patents
Act, Sections 47 and 107-A provides for the acts that shall not be considered as an infringement of
patent. For example, the import of any machine or other articles by or on behalf of the government
or the manufacturing or use of a patented process by or on behalf of the government does not
constitute patent infringement. The various remedies available against patent infringement are as
follows:
 Injunction
 Damages or account of profits
 Delivery up or destruction of infringing goods
 Certificate of validity
Procedure of obtaining a patent in India
You can file a patent application at the Patent Office in physical mode or in electronic mode.
Following are the steps involved in obtaining a patent:
1. Filing of application
 Place of filing patent application: A patent application has to be filed at the head office of
the patent office or the branch office, within whose territorial limits:
1. Applicant normally resides or has a domicile, or
2. Applicant has a place of business, or
3. At the place where the invention actually originated.
 Mode of filing application: You can submit the patent application through post or by hand.
You can also opt for e-filing
through [Link]
 Who can file the application: Following persons either alone or jointly can file the patent
application:
1. Any person claiming to be the true and first inventor of the invention;
2. Assignee of the above in respect of the right to make such an application;
3. The legal representative of any deceased person who was entitled to make such an
application immediately before his death.
 Form of application: Every patent application shall be for one invention only.
 Every application must specify that the applicant possesses the invention and identify the
individual claiming to be the true and first inventor. If the individual claiming to be the true
and first inventor is not the applicant or one of the applicants, the application must state
that the applicant believes the person so listed/named to be the true and first inventor.
 Application must be accompanied by a provisional or a complete specification.
2. Filing of provisional and complete specification
 What is patent specification: A patent specification is a technical document describing the
invention. The provisional specification gives the initial description of the invention on the
filing of the patent application. Whereas a complete specification gives full and sufficient
detail of an invention in such a manner that a person skilled in the art can use the invention
when he reads such a description.
 If the patent application is accompanied by a provisional specification, the complete
specification has to be filed within 12 months from the date of the filing of such application.
In case it is not filed within the said period, the application is deemed to have been
abandoned.
3. Claim of priority date: Priority date is the date on which the patentee claims his invention.
There shall be a priority date for each claim of a complete specification. Generally, the
priority date is the date of filing of the provisional specification provided the claims
contained therein are fairly based on the description of the invention as given in the
provisional specification. But when the patent application is accompanied by complete
specification or if any application is post-dated to the date of filing of complete specification,
in that case the priority date shall be the date of filing of the complete specification.
4. Amendment of specification: The applicant may amend the application, the complete
specification and other documents before or after the grant of the patent. Such amendment
 shall be in accordance with the procedure prescribed as regards to the permission of the
Controller and publication of the amendment.
5. Publication and Examination of application
 The patent application shall not be open to the public until the expiry of 18 months from the
date of filing of the application or the date of the priority of the application. However,
applicants may request the Controller to publish the application at an earlier date.
 The application is published within one month after the expiry of the said period of 18
months.
 Thereafter, a request has to be made by the applicant or other interested persons for
examination of the application. Such a request shall be made within 48 months from the
date of priority of the application or from the date of filing of application, whichever is
earlier. If the request is not made within the prescribed period, the application is treated as
withdrawn.
6. Time for putting application in order for grant: The applicant must comply with all the
requirements imposed on him by or under the Act in relation to the application within 12
months from the date on which the Controller forwarded to the applicant the first
statement of objections to the application, complete specification, or other documents
related thereto.
7. Opposition to grant of patent
 Pre-grant opposition: Before the patent has been granted, any person may, in writing,
represent by way of opposition to the Controller against the grant of the patent.
 Post-grant opposition: After the grant of the patent but before the expiry of 1 year from the
date of publication of grant of patent, any interested person may give notice of opposition
to the Controller. Thereafter, the Controller constitutes the Opposition Board and the patent
may be revoked on the basis of the report of the Board.
8. Grant of patent
 If the application for patent is found to be in order for grant of patent, the patent shall be
granted.
 On the grant of patent, the Controller publishes the fact of such grant and thereupon the
application and other documents shall be open for public inspection.
What are the benefits of patent registration
1. Patent registration ensures the complete protection of your patent/invention against any
unauthorised use for a period of 20 years.
2. Patent registration allows you to enjoy monopoly in the market as regards your invention
during the period of patent protection.
3. Patent registration confers exclusive right to exploit the patent on patentee or his licensee
or assignee.
4. You can licence the patent and gain royalties for the same.
Trademark:-
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of
other enterprises. Trademarks date back to ancient times when artisans used to put their signature
or "mark" on their products.
What is a trademark?
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of
other enterprises. Trademarks are protected by intellectual property rights.
At the national/regional level, trademark protection can be obtained through registration, by filing
an application for registration with the national/regional trademark office and paying the required
fees. At the international level, you have two options: either you can file a trademark application
with the trademark office of each country in which you are seeking protection, or you can use
WIPO’s Madrid System.
In principle, a trademark registration will confer an exclusive right to the use of the registered
trademark. This implies that the trademark can be exclusively used by its owner, or licensed to
another party for use in return for payment. Registration provides legal certainty and reinforces the
position of the right holder, for example, in case of litigation.
A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But
trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and
packaging of goods, non-visible signs such as sounds or fragrances, or colour shades used as
distinguishing features – the possibilities are almost limitless.
The term of trademark registration can vary, but is usually ten years. It can be renewed indefinitely
on payment of additional fees. Trademark rights are private rights and protection is enforced
through court orders.
An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may
consist of three-dimensional features, such as the shape or surface of an article, or of two-
dimensional features, such as patterns, lines or color.
A Trade Mark, through its widespread and extensive use in public, becomes popular and eventually
results in acquiring an exclusive right, which can be legally enforced by the owner of the mark.
Trade Mark helps the consumer to answer the question,” who makes the product or who has
provided the service?” e.g. COCA COLA, SONY, TVS, etc. These are the marks which distinguish the
goods or services of members of an Association which is the proprietor TM from those of the others.
When a Trade Mark is used in connection with services, it is called a “Service Mark”. e.g. service like
Hotels, restaurants, Airlines, Tourist agencies, Laundries and Cleaners etc.
Pizza Hut, Subway, KFC, Paytm, SBI, Domino’s Pizza, Taj, Mariott, Broadway etc.

Industrial Design:-
An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may
consist of three-dimensional features, such as the shape or surface of an article, or of two-
dimensional features, such as patterns, lines or colour
What is an industrial design?
In a legal sense, an industrial design constitutes the ornamental aspect of an article. An industrial
design may consist of three dimensional features, such as the shape of an article, or two dimensional
features, such as patterns, lines or [Link] principle, the owner of a registered industrial design or
of a design patent has the right to prevent third parties from making, selling or importing articles
bearing or embodying a design which is a copy, or substantially a copy, of the protected design,
when such acts are undertaken for commercial purposes.
Industrial designs are applied to a wide variety of products of industry and handicraft items: from
packages and containers to furnishing and household goods, from lighting equipment to jewellery,
and from electronic devices to textiles. Industrial designs may also be relevant to graphic symbols,
graphical user interfaces (GUI), and logos.
In most countries, an industrial design needs to be registered in order to be protected under
industrial design law as a “registered design”. In some countries, industrial designs are protected
under patent law as “design patents ”.
When a Design registered, the registered proprietor of the design shall have copyright in the design
during ten years from the date of application, which can further extended another five years. Total
term of design is fifteen years (with extension).
Geographical Indications:-
Geographical indications and appellations of origin are signs used on goods that have a specific
geographical origin and possess qualities, a reputation or characteristics that are essentially
attributable to that place of origin. Most commonly, a geographical indication includes the name of
the place of origin of the goods.
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.
In addition, the qualities, characteristics or reputation of the product should be essentially due to
the place of origin. Since the qualities depend on the geographical place of production, there is a
clear link between the product and its original place of production.
However, a protected geographical indication does not enable the holder to prevent someone from
making a product using the same techniques as those set out in the standards for that indication.
Protection for a geographical indication is usually obtained by acquiring a right over the sign that
constitutes the indication.
Geographical indications are typically used for agricultural products, foodstuffs, wine and spirit
drinks, handicrafts, and industrial products.
Geographical Indication refers to any indication that identifies the goods as originating from a
particular place, where a given quality, reputation or other characteristics of the goods is essentially
attributable to its geographical origin. e.g., Darjeeling Tea, Basmati Rice, Kanchipuram silk, Nagpur
oranges, Makrana marble, Blue Pottery of Jaipur, etc To ascertain whether product qualifies as a
Geographical Indications? It should conform to five main parameters:
1. Originating from a particular Geographical Area; 2. Linkage with Geography and the product
(Direct / Indirect); 3. Reputation of the Product (Local / National / International).; 4. Historical Origin;
5. Uniqueness and Quality of the product. In India, registration and protection of Geographical
Indications is restricted to Goods only and Further “Goods” are divided into three main categories
i.e., agricultural, natural and manufactured goods. Manufactured goods is further, sub-categories as
Handicraft which includes Handloom, Textiles, goods of Industry or Industrial goods, food stuff&
wines &spirits. GI confers legal protection to geographical indications in India and prevents
unauthorized use of a registered geographical indication by others. It boosts exports of Indian
geographical indications by providing legal protection. It promotes economic prosperity of
producers of goods produced in geographical territory.
Trade Secrets:-
Trade secrets are IP rights on confidential information which may be sold or licensed. The
unauthorized acquisition, use or disclosure of such secret information in a manner contrary to
honest commercial practices by others is regarded as an unfair practice and a violation of the trade
secret protection.
What is a trade secret?
Trade secrets are intellectual property (IP) rights on confidential information which may be sold
or licensed.
What qualifies as a trade secret?
In general, to qualify as a trade secret, the information must be:
commercially valuable because it is secret,
be known only to a limited group of persons, and
be subject to reasonable steps taken by the rightful holder of the information to keep it
secret, including the use of confidentiality agreements for business partners and employees.
The unauthorized acquisition, use or disclosure of such secret information in a manner contrary to
honest commercial practices by others is regarded as an unfair practice and a violation of the trade
secret protection.
In general, any confidential business information which provides an enterprise a competitive edge
and is unknown to others may be protected as a trade secret.
Types of trade secrets
Trade secrets encompass both technical information, such as information concerning
manufacturing processes, pharmaceutical test data, designs and drawings of computer programs,
and commercial information, such as distribution methods, list of suppliers and clients, and
advertising strategies.
A trade secret may be also made up of a combination of elements, each of which by itself is in
the public domain, but where the combination, which is kept secret, provides a competitive
advantage.
Other examples of information that may be protected by trade secrets include financial information,
formulas and recipes and source codes.
Depending on the legal system, the legal protection of business secrets forms part of the general
concept of protection against unfair competition or is based on specific provisions or case
law on the protection of confidential information.
While a final determination of whether trade secret protection is violated or not depends on the
circumstances of each individual case, in general, unfair practices in respect of secret information
include industrial or commercial espionage, breach of contract and breach of
confidence.
A trade secret owner, however, cannot stop others from using the same technical or commercial
information, if they acquired or developed such information independently by themselves through
their own R&D, reverse engineering or marketing analysis, etc. Since trade secrets are not made
public, unlike patents, they do not provide “defensive” protection, as being prior art. For example, if
a specific process of producing Compound X has been protected by a trade secret, someone else can
obtain a patent or a utility model on the same invention, if the inventor arrived at that invention
independently.
Companies should take preventive measures to protect trade secrets against theft or
misappropriation, including:
Non-disclosure agreement (NDA): employees and business partners should sign a non-disclosure
agreement that prevent them from disclosing a company’s confidential information.
Non-compete agreement (NCA): employers should ask employees, contractors and consultants to
sign a non-compete agreement to prevent them from entering in competition when their
employment/service agreement ends.
Robust IT security infrastructure
Controlling the accessibility of important documents

Authorities giving Registration in India and the World.

Controller General of Patents, Designs, and Trade Marks
The Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) is located at
Mumbai. The Head Office of the Patent office is at Kolkata and its Branch offices are located at
Chennai, New Delhi and Mumbai. The Trade Marks registry is at Mumbai and its Branches are
located in Kolkata, Chennai, Ahmedabad and New Delhi. The Design Office is located at Kolkata in
the Patent Office. The Offices of The Patent Information System (PIS) and National Institute of
Intellectual Property Management (NIIPM) are at Nagpur. The Controller General supervises the
working of the Patents Act, 1970, as amended, the Designs Act, 2000 and the Trade Marks Act, 1999
and also renders advice to the Government on matters relating to these subjects. In order to protect
the Geographical Indications of goods a Geographical Indications Registry has been established in
Chennai to administer the Geographical Indications of Goods (Registrationand Protection) Act, 1999
under the CGPDTM.
The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally
for their inventions, helps patent offices with their patent granting decisions, and facilitates public
access to a wealth of technical information relating to those inventions.
By filing one international patent application under the PCT, applicants can simultaneously seek
protection for an invention in a large number of countries.

What is WIPO (World Intellectual Property Organisation)

WIPO is the global forum for intellectual property (IP) services, policy, information and
cooperation. WIPO is a self-funding agency of the United Nations, with 193 member states.
Its mission is to lead the development of a balanced and effective international IP system that
enables innovation and creativity for the benefit of all. Its mandate, governing bodies and
procedures are set out in the WIPO Convention, which established WIPO in 1967.

TRIPS — Trade-Related Aspects of Intellectual Property Rights. The WTO Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) is the most comprehensive multilateral
agreement on intellectual property (IP).
The three main features of TRIPS are standards, enforcement and dispute settlement.
What is the purpose of TRIPS Agreement?
The TRIPS Agreement requires Member countries to make patents available for any inventions,
whether products or processes, in all fields of technology without discrimination, subject to the
normal tests of novelty, inventiveness and industrial applicability.

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