Intellectual Property Rights and International Perspectives

ByMr. Vivek Y. Dhupdale

Assistant Professor,Department of Law, Shivaji

University, Kolhapur

COPYRIGHT TRADE AND SERVICE MARKSPATENTSINDUSTRIAL DESIGNSGEOGRAPHICAL INDICATIONSINTEGRATED CIRCUITSUNDISCLOSED INFORMATION

Property created as a result of intellectual creative effort or commercial reputation and goodwill.

Basic Form : Intangible Territorial Statutory/Common law Provisions

IP IS AN INTANGIBLE PROPERTY SET OF RIGHTS:

- Right to EXCLUSIVE USER

- Right to PREVENT OTHERS

- Right to ASSIGN, TO LICENSE

- INHERITABLE Right

MEANING OF COPYRIGHT : Right To-

› reproduce the work ( including Storing )› issue copies of the work› perform work in public› communicate the work to the public› make translation› make adaptation

› sell or give on hire

Copyright subsists in original-› literary, dramatic, musical &

artistic works› cinematographic films › sound recordings›which are either first published in

India, ..

Range Of Copyright Protection:

Product Packaging Scenic Arrangement

Paintings Sculpture

Drawings ( maps,..) Engravings

Photographs Architectural Works

Computer Software Research Papers

Computer databases Choreographic work

WHAT IS A TRADE MARK?

a mark used or proposed to be used in relation to goods for the purpose of indicating a connection in the course of trade between the goods and some person having the right to use the mark.

What is a MARK :1. It includes a device, brand, heading,

label, ticket, name, signature, word, letter, numeral or any combination thereof

2. Shape of goods, packaging, colour

3. Sound, Smell – are also marks – but recognised in India

Traditional Role:

distinguish the products of one manufacturer from those of another indicate the source or origin of the goods represent the goodwill of the manufacturer

TM as a part of the marketing mix:• Guarantee of QUALITY• Guarantee of AUTHENTICITY• Create a feeling of TRUST• Aid to Branding

Mercedes Benz for vehicles Coca Cola for beverages Intel for computer Crocin for

pharmaceuticals Bournvita for food stuff MGM - roar of Lion for entertainment Taj Hotels for hotels Nike for shoes 501 Bar for soaps

Original Marks Copied / Similar Marks

Vaseline VanildeneAmrutanjan AmrutmanthanGodrej GoldageDouble BubbleRustom RustonRysta Aristo

Marks Which Are Capable Of Distinguishing Services

New Provision - 1999 Trade Marks Act› Insurance› Banking› Hotels› Laundry› Education› Transport› Research Laboratories

Patent is a exclusive right granted to an inventor with respect to that invention which he discloses to the public.

These exclusive rights include his right to assign or transfer any interest in his invention.

Object of the Act:› Protection of the Individual Interest of the Patentee› Protection of the Interest of the Society

The Patents under the Patents Act are granted for a limited period of 20 years from the date of filing of the application for patent.

A registered design includes:› features of shape, configuration, pattern, ornament or

composition of lines or colours,

Applied to any article either in two or three dimensions or in both forms by any industrial process which in the finished article appeal to and are judged by the eye.

Protection Given To :› indications which identify goods as originating

from/manufactured in a particular territory where a given quality, reputation or other characteristics of the goods is essentially attributable to that region

Customers must not be misled Marking must not mislead No Dilution Economic prosperity Examples of GI:

› Darjeeling Tea› Basmati Rice› Paithani Saris› Kolhapuri Chappals› Scotch Whisky› Rockford Cheese› Champagne

An integrated circuit or monolithic integrated circuit (also referred to as IC, chip, or microchip) is an electronic circuit manufactured by lithography, or the patterned diffusion of trace elements into the surface of a thin substrate of semiconductor material. Additional materials are deposited and patterned to form interconnections between semiconductor devices.

Integrated circuits are used in virtually all electronic equipment today and have revolutionized the world of electronics. Computers, mobile phones, and other digital home appliances are now inextricable parts of the structure of modern societies, made possible by the low cost of producing integrated circuits.

Trade Secret is an information which is a SECRET has been INTENTIONALLY treated as such is capable of COMMERCIAL application and involves an ECONOMIC interest

Concept of ‘sufficiently developed’ No necessity of Novelty Inventiveness not a pre-requisite Important requirement => SECRET Exercise of Skill and Effort Desire of Confidentiality

Any formula, pattern or device or compilation of information which is used in one’s business and which gives the owner over competitors who do not know or use it.

e.g. chemical compound, a process of manufacture, treating or preserving material, a pattern for a machine other other device or a list of customers, detailed manufacturing drawings, tolerance data, training materials, source code, etc.

At present, the following legislations on IPRs are in force in India: › The Patents Act, 1970 as amended by the Patents

(Amendments) Act, 2005 along with the Patents (Amendments) Rules, 2005 (Effective from 01.01.2005)

› The Designs Act, 2000 along with The Design Rules, 2001 › The Trade Marks Act, 1999 along with The Trade Marks

Rules, 2002 › The Geographical Indications of Goods (Registration and

Protection) Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Rules, 2002

› The Copyright Act 1957, Copyright (Amendment)Act 1994, Copyright (Amendment) Act 1999 (Effective from 15.01.2000)

There are basically three remedies available in the case if any unauthorised person tries to exercise the exclusive rights of the original creator. They are:› Civil Remedies› Criminal Remedies› Administrative Remedies

Following are the International Conventions which provide protection to Intellectual Property Globally.

General Conventions: 1. Convention for the Protection of Industrial Property Rights signed in Paris on 20 March 1883. 2. Berne Convention for the Protection of Literary and Artistic

Works Paris Act of 24 July 1971. 3. Convention establishing the World Intellectual Property Organisation (WIPO), signed at Stockholm on 14 July 1967. 4. Agreement on Trade-Related Aspects of Intellectual Property

Rights

5. The TRIPS Agreement, negotiated during the Uruguay Round, sets minimum standards for most categories of IPRs.

Patents: 1. Patent Cooperation Treaty of 19 June 1970,

signed at Washington on 19 June 19702. Convention on the Grant of European Patents of 5 October 1973. 3. Strasbourg Agreement Concerning the International Patent Classification, signed on 24 March 1971.4. Budapest Treaty on the International Recognition

of the Deposit of Microorganisms for the Purposes of Patent Procedure, concluded in 1977. 5. Patent Law Treaty adopted at Geneva 2 June

2000.

Trademarks 1. Madrid Agreement (April 1891) and Protocol (June 1989) concerning the International Registration of Marks. 2. Nice Agreement Concerning the International Classification of

Goods and Services for the Purpose of the Registration of Marks signed at Nice on 15 June 1957. 3. Vienna Agreement establishing an international classification of the Figurative elements of Marks, signed at Vienna on 12 June 1973, as amended on 1 October 1985. 4. Nairobi Treaty on the Protection of the Olympic Symbol, adopted on September 26, 1981. 5. Community Trademark Regulation no. 40/94 of 20 December

1993. 6. Trademark Law Treaty (TLT) adopted at Geneva on 27 October

1994. 7. Singapore Treaty on the Law of Trademarks, adopted March 13 to 26, 2006.

Industrial designs 1. The Hague Agreement for the International deposit of industrial design, signed 28 November 1960. 2. Locarno Agreement establishing an International Classification for Industrial Designs signed at Locarno on 8 October 1968. 3. The Community Design (98/71/EC).

Copyright and related rights:1. The Berne Convention for the Protection of Literary and Artistic

Works (1886). 2. Universal Copyright Convention (1952). 3. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, the

Rome Convention (1961). 4. Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms of October 29,

1971. 5. Convention Relating to the Distribution of Programme-Carrying

Signals Transmitted by Satellite, adopted at Brussels on 21 May 1974.

6. Trade Related Aspects of Intellectual Property Rights, the TRIPS Agreement (1994).

7. World Intellectual Property Organization Copyright Treaty (WCT) adopted in Geneva on 20 December 1996.

8. Convention on Cybercrime, adopted at Budapest 23 November 2001.

IPR is the need of the time for fast developing and creative country like India.

There is a lack of awareness and information about IPR in India.  

We need to emphasis on creating awareness about IPR in citizens and the students, who are tomorrow’s technocrats and creators of new technology.

All possible efforts should be taken to see that every student in particular should at least have clear idea about IPR.

Mr. Vivek Y. Dhupdale

Assistant Professor,

Department of Law,

Shivaji University, Kolhapur

Email: vydhupdale@rediffmail.com