Trademarks are graphically highlighted marks that assist people in identifying the firm or indi...
A right in an ordinary sense means the standard of permitted action within a certain sphere, and on legal terms, it is the standard of permitted action by law. A man may have rights over material things, i.e., proprietary rights, and may have rights in respect of his own person. One may also have rights over the immaterial property like patent rights, copyrights, etc. these are called Intellectual Property Rights. In recent times we have seen its importance growing. The immaterial products of man’s brain may be as valuable as his land or goods. This law, therefore, gives him a proprietary right, and the unauthorised use of it by another person would amount to a violation of his right or ownership. Here in this article, we shall have an in-depth understanding of the Intellectual Property Rights (IPR) and the various Intellectual Properties.
The creative genius of human beings creates intellectual property which, if properly exploited, can earn wealth. Since it is the creation of the mind, therefore, it is called Intellectual Property. As per article 2(vii) of the convention establishing the World Intellectual Property Organisation (WIPO), an Intellectual Property shall include the rights relating to:
The rights of intellectual property are created by a statue. The invention may pertain to a new product or an improvement of an existing product. The acquisition of the monopoly of the intellectual property, the conditions for acquisition, its duration, the licensing of its monopoly rights, or their assignment to others is strictly governed by these statues. These rights can also be licensed for use by third parties or assigned to any person. Intellectual property rights are enforced by an action for infringement of those rights before the court of law.
Every human endeavour that promotes economic, scientific, social, and cultural development must be encouraged, and the creator must be suitably rewarded by providing legal protection to his intellectual creation. Countries have laws for the protection of intellectual property, firstly, to give statutory expression to the moral and economic rights of creators for their creations and secondly to promote creativity and the dissemination, as a deliberate act of government policy, and to further facilitate fair trading that would add to the social and economic development.
The intellectual property laws intend to safeguard creators and regulate the creation, use, and exploitation of creative work. It seeks to prevent third parties from taking unfair advantage of the creation of someone’s mind. The IPR provides recognition to the efforts of the creators, and its main objective is to protect them from infringement, thereby encouraging them to create and innovate more and make economic gains out of it.
The Intellectual Property Rights (IPRs) are private rights, but there is a need for a multilateral framework of principles, rules, and disciplines dealing with the IPRs. The Trade-related aspects of Intellectual Property Rights (TRIPS) agreement is a multilateral trade agreement. It is an integral part of the WTO agreement, binding all the member countries under the WTO agreement. The agreement on TRIPS aims at protecting Intellectual Property Rights and to reward creativity and innovations. The TRIPS is a minimum standard agreement encouraging countries to provide high-level protection for intellectual property.
Intellectual property has its own different features. These features help in the identification of intellectual property from other kinds of properties. These features of the IP determine the nature of the intellectual property. These are enumerated below:
The Intellectual property rights include patent, copyright, trademarks, geographic indications, industrial design, database protection laws, etc. we shall cover these in the next segment.
Also, Read: Different Between Patent, Copyright and Trademark.
There are various forms of IPRs. The most common of them are specified below.
The subject matter of copyright is the literary, artistic, musical, dramatic, cinematographic, sound recordings, etc. it protects the expression of an idea. The copyright is to the original creation, and mere idea without tangible expression cannot be granted legal protection. Copyright is an intangible and an incorporeal right is given to the author or the creator of certain literary or artistic production wherein he is invested for a specified term with the sole right to multiply copies of his original creation and to publish and sell them.
Copyright protection is provided for all original artistic, dramatic, musical, cinematographic, or such works. Original here means that the work in question must not have been copied from any other source. Its protection begins as soon as the work is created, and its registration depends upon the owner as it’s optional; however, it’s advised to register your work in order to seek better protection. It shall be useful as a proof in the copyright registration of the registrar of copyrights.
The term of the copyright depends upon the kind of the work copyrighted. In case of a literary, artistic, dramatic, or musical original work, the term of the copyright is the lifetime of the artist or the author and 60 years from the death of the author.
Copyright in any work can be either assigned or licensed, whether present work or future work, in writing by the owner of the copyright or by his duly authorised agent.
A patent is granted for inventions that have industrial and commercial value. Any person whose invention has novelty involving inventive steps that is non-obvious and is of industrial application can be granted a monopoly right for a period of time to commercially exploit his invention and make gains out of his invention.
The Patent Act defines the invention as a new product or process involving inventive steps. It further states that an inventive step means a feature that makes the invention non-obvious to a person skilled in the art. The attributes essential in a product or process to qualify as patents are novelty, non-obviousness, and utility of an invention.
Though the idea behind a patent is to protect the creator’s creation, there are certain things that cannot be patented according to Indian law. These are any methods of horticulture or agriculture, any process that comes under medicine, surgical, curative, or treatment of a human, animal or plants, any discovery pertaining to atomic energy, the discovery of unique machine or process. There are numerous benefits to getting a patent. The patent helps in safeguarding your invention from theft, and it provides a freedom of exclusivity. The patent has higher monetary value and huge profit margins.
Currently, in India, a uniform term of 20 years has been provided. The period of 20 years shall be calculated from the date of filing of application of patent. In order to keep the patent alive and effective, a periodic renewal fee is also required to be deposited. In a failure of such payment, the patent shall cease to have an effect and won’t be eligible for any protection.
A patent is a transferable property which can be transferred by the owner of the patent either partially or fully to another person. He may transfer it either for consideration or without consideration. A transfer can take place through assignment, licence, or it can be transferred by operation of law.
A Trademark is a brand name or a logo that helps in the identification of a product or service. It can be defined as a unique identity that helps in differentiating the product of one brand from the other. The unique identity is called the Trademark, which can be in the form of a logo, slogan, word, graphics, etc. There are two types of trademark rights. These are conferred by registration under the statue or acquired in relation to a trademark or trade name. The exclusive rights granted by the registration allows the owner of the registered mark to prevent others from not only using the mark as registered but also stops people from using a deceptively similar mark to the registered mark. A trademark serves as a valuable asset, creates a unique identity for one’s brand or company.
The registered proprietor of a trademark gets the exclusive right to use the Trademark in relation to the goods and services of which the Trademark has been registered and the right to obtain relief in respect of an infringement of the Trademark.
The registered proprietor is also empowered to assign the Trademark and to give effectual receipts for any consideration for such assignment. The assignment must be in writing, and it must mention the conditions and limitations to which the assignment is subject to.
The registration of the Trademark is valid for a period of 10 years and may be renewed from time to time. The registrar has the right to remove the Trademark from the register in case it is not renewed within the prescribed period.
Geographical Indication in relation to goods means an indication which identifies goods as agricultural goods, natural goods, or manufactured goods as originating or manufactured in the territory of the country, region or a locality in that territory where a quality, reputation, or any other characteristics of those goods is attributable to its geographical origin. In case the goods mentioned are manufactured goods, then either the activity of production, processing, or preparation of the goods shall take place in such territory, locality, or region depending upon the case.
An Industrial Design means the features of shape, pattern, ornament or the composition of lines or colours applied to any article, whether in two dimensional or three dimensional through any industrial process that in the finished article appeal to and are judged by the eye. It does not include any trademark or any principle of construction.
The registered owner of the industrial design has the right to prevent others from selling, making, or importing articles or embodying a design that is a copy of the protected design when such acts are used for commercial purposes.
See Our Recommendation: IP Due Diligence – Everything You Need to Know.