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Published by Enhelion, 2019-12-10 09:23:59





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2.1 CONCEPT OF PROPERTY and systems were made here for the first time in the
world, and other countries followed in due course.i
Properties are of two types either tangible or
intangible i.e. touchable or non- touchable. Tangible 2.3 WHAT IS INTELLECTUAL PROPERTY?
include land, house, jewelry, cash etc. Intellectual
Property is an example of Intangible Property and in Intellectual property (IP) is a term that describes a
the modern day considered to be a more valuable and number of distinct types of intangible assets.
precious one. That as a result of the Industrial Intellectual property is an intangible creation of the
revolution and the rapid developments made in the human mind, usually expressed or translated into a
field of science a new kind of property apart from the tangible form that is assigned certain rights of
traditional property came into existence. property. Examples of intellectual property include
an author's copyright on a book or article, a
2.2 HISTORY OF INTELLECTUAL PROPERTY distinctive logo design representing a soft drink
company and its products, unique design elements of
The laws and administrative procedures relating to a web site, or a patent on the process to manufacture
IPR have their roots in Europe. The trend of granting chewing gum.
patents started in the fourteenth century. In
comparison to other European countries, in some 2.4 WHAT ARE INTELLECTUAL PROPERTY
matters England was technologically advanced and RIGHTS?
used to attract artisans from elsewhere, on special
terms. The first known copyrights appeared in Italy. Intellectual property rights (IPR) can be defined as
Venice can be considered the cradle of IP system as the rights given to people over the creation of their
most legal thinking in this area was done here; laws minds. They usually give the creator an exclusive

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right over the use of his/her creations for a certain 2.5 WIPO
period of time.
The world intellectual property organization is an
IP protection allows a rights holder to exclude others international organization which was established by
from interfering with or using the property right in the convention establishing the world intellectual
specified ways. The main forms of IP are patents, property organization” the convention was signed at
copyrights, trademarks, and trade secrets. Each type Stockholm in 1967 and entered into force in 1970.
of IP protection is different, varying in the subject Since 1974, it had the status of the specialized agency
matter that can be covered, timeframe of protection, of the United Nations.
and total expense. Although some inventions may be
covered by multiple types of IP protection, it is The origin of WIPO can be traced back to the
important to consider a number of business and legal adoption of Paris convention and Berne Convention
factors before selecting the best protection strategy. in 1883 and 1886 respectively. Being a specialized
Some technologies require strong IP protection to agency WIPO is subject to the competence of the
commercialize, but unnecessary costs can derail United Nation and its organs, is responsible for taking
bringing a product to market appropriate action in accordance with the basic
instruments, treaties and agreements administered
Intellectual property, very broadly, means the legal by it. WIPO is dedicated to promote creativity and
rights which result from intellectual activity in the innovation by ensuring the rights of creators and
industrial, scientific, literary and artistic fields. owners of intellectual property are protected
Countries have laws to protect intellectual property worldwide, and that investors and authors are thus
for two main reasons. One is to give statutory recognized and rewarded for their ingenuity.ii
expression to the moral and economic rights of
creators in their creations and the rights of the public 2.6 VARIOUS TYPES OF INTELLECTUAL
in access to those creations. The second is to PROPERTY:
promote, as a deliberate act of Government policy,
creativity and the dissemination and application of its 1. Copyright
results and to encourage fair trading which would 2. Industrial Designs
contribute to economic and social development. 3. Patents
4. Trade Marks
5. Domain Name

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6. Designs (Registration and Protection) Act, 1999
7. Geographical Indications 6. The Semiconductor Integrated Circuits
8. Domain Name
9. Designs Layout Design Act, 2000
10. Plant Variety 7. The Protection of Plant Varieties and
11. Geographical Indications
12. Layout Designs of Integrated Circuits Farmers' Right Act, 2001
13. Trade Secrets 8. The Information Technology Act, 2000
14. Know How
15. Traditional Knowledge 2.9 DIFFERENT TYPES OF INTELLECTUAL
One can broadly classify the various forms of IPRs
into two categories: In India, copyright subsists in (i) original literary,
dramatic, musical and artistic works; (ii)
i) IPRs that stimulate inventive and creative cinematograph films; (iii) sound recording. Literary
activities such as patents, utility models, work includes computer programme including
industrial designs, copyright, plant breeders’ databases. The subject-matter of copyright includes
rights and layout designs for integrated e.g. poems, novels, music, school textbooks, question
circuits papers set for examination, law reports, catalogues,
railway timetables, study books, trade statistics, a
ii) IPRs that offer information to consumers sculpture, a drawing (including a diagram, map, chart
(trademarks and geographical indications). or plan), an engraving or a photograph, whether or
not any such work possesses artistic quality; work of
2.8 ACTS DEAL WITH THE PROTECTION OF architecture; and any other work of artistic
INTELLECTUAL PROPERTY: craftsmanship, etc. The copyright law generally
provides to the owner of copyright the right to
1. Trade Marks Act, 1999 reproduce the work in any material form; to issue
2. The Patents Act, 1970 (as amended in 2005) copies of the work to the public; to perform the work
3. The Copyright Act, 1957 in public, or communicate it to the public; to make any
4. The Designs Act, 2000 cinematograph film or sound recording in respect of
5. The Geographical Indications of Goods

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the work; to make any translation of the work; to iii) reporting current events in any print media
make any adaptation of the work: etc.iii or

In Copyright Laws exceptions and limitations are iv) by broadcast or in a cinematographic film or
provisions which in public interest permit the use of by means of photographs,
copyrighted works without prior authorization or a
license from its owner. v) reproduction for the purpose of a judicial
proceeding or of a report of a judicial
Generally, exceptions and limitations to copyright proceeding;
are subject to a three-step test set out in the Berne
Convention for the Protection of Literary and Artistic vi) reproduction or publication of a literary,
Works. Briefly stated, the Berne Convention dramatic, musical or artistic work in any work
provides that an exception or limitation to copyright prepared by the Secretariat of a Legislature
is permissible only if: or, where the Legislature consists of two
Houses, by the Secretariat of either House of
i) it covers special cases the Legislature, exclusively for the use of the
ii) it does not conflict with the normal members of that Legislature;

exploitation of the work; and vii) the reproduction of any literary, dramatic or
iii) it does not unreasonably prejudice the musical work in a certified copy made or
supplied in accordance with any law for the
legitimate interests of the author. time being in force;

Standard exceptions and limitations vary from viii) the reading or recitation in public of any
country to country in their number and scope. In India reasonable extract from a published literary
the provisions of Section 52 of the Copyright Act, or dramatic work;
1957 provide for certain acts, which would not
constitute an infringement of copyright namely fair ix) the publication in a collection, mainly
dealing with a literary, dramatic, musical or artistic composed of non-copyright matter, bona fide
work not being a computer program for the purposes intended for the use of educational
of- institutions,

i) private use, including research; x) the making of sound if made by or with the
ii) criticism or review , license or consent of the owner of the right in
the workiv

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2.9.2 INDUSTRIAL PROPERTY should by merely reading the description, be able to
carry out the invention. In other words, before a
Industrial property is a kind of intellectual property patent is granted, the invention has to be disclosed.
and thus relates to creations of the human mind. Such The disclosure of invention provides useful
creations are mainly inventions and industrial information to the public, which helps in avoiding
designs. Inventions are new solutions to technical wasteful duplication of effort and the multiplication
problems, and industrial designs are aesthetic of costs that research aimed at finding solutions to
creations determining the appearance of industrial technical problems can entail.
products. Apart from this, industrial property
includes trademarks, service marks, layout-designs of The grant of patent not only recognizes and rewards
integrated circuits, commercial names and the creativity of the inventor but also acts as an
designations, as well as geographical indications, and inspiration or catalyst for further inventions which
protection against unfair competition. ultimately contributes to the technological
development of a nation.
An invention is patentable only when it is
Patent means monopoly right granted to a person by i) new,
the Patent Office to exploit his invention for limited ii) involves an inventive step, and
period of time. In India, a patent is granted for a iii) capable of industrial application.
period of 20 years. During this period, the inventor is
entitled to exclude anyone else from commercially After the expiry of the term of patent, it falls into
exploiting his invention. The exclusive rights of the public domain and becomes public property. Any
inventor can be exercised by a person other than the member of the public can, thereafter use the
inventor with the latter’s previous authorization. The invention without previous authorization of the
person to whom a patent is granted is known as the inventor and without paying any royalty to him.
Before a patent is granted, the patentee has to
describe in the patent application, the invention with A trade mark includes any device, brand, heading,
such clarity and completeness of all the technical label, ticket, name, signature, word, letter, numeral,
details that anyone having ordinary skill in the art shape of goods, packaging or combination of colours
or any combination thereof. According to section 2(1)

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(b) of the Trade Marks Act, 1999, a trade mark should mark of that person.v Certification trade mark now
be capable of being represented graphically and includes services also.
should also be capable of distinguishing the goods or
services of one person from those of others. Collective mark
The trade mark law serves two important purposes:
Collective mark means a trade mark distinguishing
i) it protects the public from confusion and the goods or services of members of an association of
deception by identifying the source or origin persons not being a partnership which is the
of particular products as distinguished from proprietor of the mark from those of
other similar products; and Trade marks for goods and services
ii) it protects the trade mark owner’s trade and
business as well as the goodwill which is A trade mark may be registered for goods and
attached to his trade mark. services. ‘Goods’ means anything which is the subject
of trade or manufacture.vii ‘Service’ means service of
The main functions of a trade mark are-identification any description which is made available to potential
of goods, identification of source, indication about users and includes the provision of services in
quality of goods and advertising. connection with business of any industrial or
commercial matters such as banking, communication, Certification trade mark education, financing, insurance, chit funds, real,
estate, transport, storage, material treatment,
Certification trade mark means a mark capable of processing, supply of electrical or other energy,
distinguishing the goods or services in connection boarding, lodging, entertainment, amusement,
with which it is used in the course of trade which are constructions, repair, conveying of news or
certified by the proprietor of the mark in respect of information and advertising.viii
origin, material, mode of manufacture of goods or
performance of services, quality, accuracy or other 2.9.5 DOMAIN NAME
characteristics from goods or services not so certified
and registrable as such under Chapter IX of the Trade A domain name could be said to be a word or name
Marks Act, 1999 in respect of those goods or services which is capable of distinguishing the subject of trade
in the name, as proprietor of the certification trade or service made available to potential users of the

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Internet. A domain name may have all the appealing, though it need not be an artistic work or
characteristics of a trade mark. There is no legislation possess artistic merit.
in India which explicitly refers to dispute resolution in
connection with domain names. Domain names may The protection of industrial design is important as it
be protected under the laws relating to passing off. encourages the creativity in the industrial and
manufacturing sectors and helps in the economic
2.9.6 DESIGNS development of a nation. An industrial design adds
commercial value to a product by making it attractive.
Design means only the features of shape, The manufacturers, therefore, pay adequate
configuration, pattern, ornament or composition of attention to the designs of the articles they produce.
lines or colours applied to any article whether in two For this purpose, they invest substantial capital and
dimensional or three dimensional or in both forms, by carry out research. Legal protection, therefore,
any industrial process or means, whether manual, becomes necessary for the creation of new designs
mechanical or chemical, separate or combined, which and their application to articles, as it ensures a fair
in the finished article appeal to and are judged solely return on investment. An effective system of
by the eye. protection promotes fair competition and honest
trade practices, encourages creativity and promotes
Design is applied to an article in two dimensional or more aesthetically attractive products.
three dimensional form or in both the forms. Thus, as
a general rule, a design consists of: 2.9.7 PLANT VARIETIES

i) three-dimensional features, such as the shape Under Protection of Plant Varieties and Farmers’
of a product; Rights Act, 2001, a new variety is registrable only if it
conforms to the criteria of novelty, distinctiveness,
ii) two- dimensional features, such as uniformity and stability. The criterion of novelty is
ornamentation, patterns, lines or color of a not applicable for the registration of an extant
product; or variety. An extant variety is registrable within a
specified time if it conforms to such criteria of
iii) a combination of one or more such features. distinctiveness, uniformity and stability. An eligible
person may make an application to the Registrar for
The design must be such that in the finished article
the features of it ‘appeal to and are judged solely by
the eye.’ A good subject of design must be visually

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registration of any variety of specified genera and preparation of certain products and the maintaining
species; or an extant variety; or a farmers’ variety.ix of certain quality standards.x The connection
between the goods and place becomes so famous that
The Act provides for the establishment of an effective any reference to the place reminds the goods being
system for protection of plant varieties, the rights of produced there and the vice versa. For example, the
farmers and plant breeders in India, It encourages the reference to District of Champagne, France brings to
development of new plant varieties. mind the wine ‘Champagne’ which is being produced
The enactment of the Protection of Plant Varieties
and Farmers’ Rights Act, 2001 is an outcome of the Some of the geographical indications are e.g. ‘Pilsen’
India’s obligations which arose from Article 27(3)(b) and ‘Budweis’ beers, ‘Champagne,’ ‘Porto,’ ‘Sherry,’
of the TRIPs Agreement which obligates Members to ‘Chianti,’ ‘Cognac,’ ‘Scotch Whisky,’ ‘Darjeeling Tea’
protect plant varieties either by patents or by an and ‘Assam Tea,’ ‘Roquefort,’ ‘Real California cheese,
effective sui generis system or by any combination ‘Kashmir Pashmina’ made from the soft, warm,
thereof. India decided to protect plant varieties by a luxurious wool produced by the Himalayan goats, etc.
sui generis law i.e. the Plant Varieties Act. Geographical indications basically perform three
functions. Firstly, they identify goods as originating in
2.9.8 GEOGRAPHICAL INDICATIONS a particular territory, or a region or locality in that
territory; secondly, they suggest the consumers that
Geographical indication indicates that particular the goods come from an area where a given quality,
goods originate from a country, region or locality and reputation or other characteristic of the goods is
has some special characteristics, qualities or essentially attributable to their geographic origin;
reputation, which is attributable to its place of origin. and thirdly, they promote the goods of producers of a
These special characteristics, qualities or reputation particular area.
may be due to various factors, e.g. natural factors
such as raw materials, soil, regional climate, A geographical indication can be used by several
temperature, moisture etc.; or the method of enterprises at the same time, provided that the
manufacture or preparation of the product such as products for which it is used originate in the
traditional production methods; or other human geographical area to which the indication refers.
factors such as concentration of similar businesses in
the same region, specialization in the production or

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2.9.9 LAYOUT DESIGNS OF INTEGRATED i) it is original;
CIRCUITS ii) it has not been commercially exploited

Integrated circuits play a significant role for the anywhere in India or in a convention country;
advancement of technology especially for electronics iii) it is inherently distinctive; and
and information technology. Integrated circuits are iv) it is inherently capable of being
used in a large range of products including mobile
phones, television, watches, radio, washing machine, distinguishable from any other registered
data processing equipment etc. There is a growing layout-design.
need to create those layout-designs which reduce the
dimensions of existing integrated circuits and The term of registration of a layout-design shall be
simultaneously increase their functions. The smaller only for a period of 10 years counted from the date of
as integrated circuit, the less the material needed for filing an application for registration or from the date
its manufacture, and the smaller the space needed to of first commercial exploitation anywhere in any
accommodate it. The creation of a new layout- country whichever is earlier.
designs of an integrated circuit involves enormous
investment, both in terms of money and the time of 2.9.10 TRADE SECRETS
highly qualified experts.
Trade secret is confidential information of a business
Semiconductor integrated circuit means a product or enterprise. A trade secret is any information that
having transistors or other circuitry elements which can be used in the operation of a business or other
are inseparably formed on a semiconductor material enterprise and that is sufficiently valuable to afford
or an insulating material or inside the semiconductor an actual or potential economic advantage over
material and designed to perform an electronic others. The owner of trade secret should take every
circuitry function.xi precaution to keep it secret.

Layout-design means a layout of transistors, and Trade secrets may include e.g. designs, drawings,
other circuitry elements and includes lead wires architectural plans, blueprints and maps; data
connecting such elements and expressed in any compilations such as lists of customers; algorithms
manner in a semiconductor integrated circuit. and processes that are implemented in computer
A layout-design is registrable in India only when programs and the programs themselves;
instructional methods; manufacturing or repair
processes, techniques and know how; document

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tracking processes; formulae for producing products; community, often forming part of its cultural or
business strategies, business plans, methods of doing spiritual identity.
business, marketing plans; financial information; While there is not yet an accepted definition of TK at
personnel records; schedules; manuals; information the international level, it can be said that:
about research and development (R&D) activities;
etc. ● TK in a general sense embraces the content of
knowledge itself as well as traditional cultural
2.9.11 KNOW HOW expressions, including distinctive signs and
symbols associated with TK.
Know how is acquired or developed by a person in the
course of research and development activities or ● TK in the narrow sense refers to knowledge as
through the application of industrial and business such, in particular the knowledge resulting
techniques in the operations of the enterprise. It is, from intellectual activity in a traditional
therefore, data or knowledge resulting from context, and includes know-how, practices,
experience or skills and can be identified in terms of skills, and innovations.
relevant documentation e.g., diagrams of the layout
of the plant, drawings or blueprints of machines, Traditional knowledge can be found in a wide variety
manuals or instructions prepared by the operation of of contexts, including: agricultural, scientific,
machines or the assembly of components, technical, ecological and medicinal knowledge as well
specifications of raw materials, labour and machine as biodiversity-related knowledge.
time calculations, packaging and storing instructions
etc. Innovations based on TK may benefit from patent,
trademark, and geographical indication protection,
2.9.12 TRADITIONAL KNOWLEDGE or be protected as a trade secret or confidential
information. However, traditional knowledge as such
Traditional knowledge (TK) is knowledge, know-how, - knowledge that has ancient roots and is often oral -
skills and practices that are developed, sustained and is not protected by conventional intellectual property
passed on from generation to generation within a systems.xii

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i Bainbridge DI. New York: Longman; 2002. Intellectual viii Section 2 (1) (z), Trade Marks Act, 1999.
ii ix Section 14, Plant Varieties Act, 2001.

iii Ahuja V.K, Law Relating to Intellectual Property Rights, 2nd x Surekha Vasishta and Amar Raj Lall, “Geographical
Edition. Indications of Goods (Registration and Protection) Act, 1999”
iv Exceptions to copyright infringement – Fair Dealing, R.K. in A.K. Koul & V.K. Ahuja, (ed.), The Law of Intellectual
Dewan & Company, Property Rights: In Prospect and Retrospect, Faculty of Law,
v Section 2 (1) (e), Trade Marks Act, 1999. Delhi, 2001 p. 248.

vi Section 2 (1) (g), Trade Marks Act, 1999. xi Section 2 (r), Layout Designs Act, 2000.
vii Section 2 (1) (j), Trade Marks Act, 1999.

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