Property is something that individuals and companies can own.

Broadly, the
property is divided into: Tangible and intangible property. The word tangible
refers to something that has a definable physical form that can be touched,
whereas, word intangible refers to something that cannot be perceived by the
senses. Further tangible property can be divided into two distinct types that is:
Real property refers to land or real estate; Personal property refers to specific
items and things that can be identified, such as cars, jewelry and artwork; and
intangible property is intellectual property that is, refers to the fruits or products
of human creativity, including literature, advertising slogans, songs, or new
inventions.
Thus, the property which is the result of thought, named intellectual activity, is
called intellectual property. In some foreign countries, intellectual property is
referred to as industrial property. Intellectual property can be bought, sold and
licensed. Similarly it can be protected against theft or infringement by others.
Intellectual property law protects the results of human creative endeavor, by
protecting the intellectual property against any infringement. Intellectual
property protects rights to ideas by protecting rights to produce and control
physical instantiations of those ideas. For example, if you were to purchase the
latest best seller by Chetan Bhagat, you would be entitled to read the book or
sell it or giving it away but you would not be entitled to make photocopies of the
book and then sell those copies. Those rights are retained by the author of the
book and are protected by the copyright law.
Intellectual property is a field of law that aims at protecting original ideas, the
knowledge created through human effort in order to stimulate and promote
further creativity. Authors who write books and musicians who compose songs
would be unlikely to be engaged in further creative efforts unless they could
realize the profit from their work. Also, pharmaceutical companies would not
invest millions into research and developments of new drugs unless they could
be assured that their invention would be enable them to recover these costs and
develop additional drugs. Thus, not only the creators of intellectual property but
the public as well benefit from protecting intellectual property. On other hand, if
the owner of intellectual property is given complete and perpetual rights to his or
her invention or work, the owner would have a monopoly and be able to charge
excessive price for his work, which would harm the public. Intellectual property
attempts to resolve these conflicting goals so that owners rights to reap reward
of their effort are balanced against the public need for a competitive
marketplace. For example, in India patent protection id provided for 20 years
from the date of filing the patent application. Once the patent expires, the
protection ends and the invention enter the public domain and anyone is free to
produce and sell the product.

The concept of intellectual property can be traced back from 500 B.C.E. One of
the first known references to intellectual property protection is, when chefs in the
Greek colony of Sybaris were granted year-long monopolies for creating
particular culinary delights. There are at least three other notable references to
intellectual property in ancient timesthese cases are cited in Bruce Bugbees
formidable work. The Genesis of American Patent and Copyright Law (Bugbee
1967). In the first case, Vitruvius (257180 B.C.E.) is said to have revealed
intellectual property theft during a literary contest in Alexandria. While serving
as judge in the contest, Vitruvius exposed the false poets who were then tried,
convicted, and disgraced for stealing the words and phrases of others. The
second and third cases also come from Roman times (first Century C.E.).
Although there is no known Roman law protecting intellectual property, Roman
jurists did discuss the different ownership interests associated with an
intellectual work and how the work was codifiede.g., the ownership of a
painting and the ownership of a table upon which the painting appears. There is
also reference to literary piracy by the Roman epigrammatist Martial. In this
case, Fidentinus is caught reciting the works of Martial without citing the source.
There were no institutions or conventions of intellectual property protection in
Ancient Greece or Rome. From Roman times to the birth of the Florentine
Republic, however, there were many franchises, privileges, and royal favors
granted surrounding the rights to intellectual works. Bugbee distinguishes
between franchises or royal favors and systems of intellectual property in the
following way: franchises and royal favors restrict access to intellectual works
already in the public domain, thus these decrees take something from the
people.An inventor, on the other hand, deprives the public of nothing that
existed prior to the act of invention (Bugbee 1967). One of the first statutes that
protected authors rights was issued by the Republic of Florence on June 19,
1421, to Filippo Brunelleschi, a famous architect. This statute not only recognized
the rights of authors and inventors to the products of their intellectual efforts; it
built in an incentive mechanism that became a prominent feature of AngloAmerican intellectual property protection. For several reasons, including Guild
influence, the Florentine patent statute of 1421 issued only the single patent to
Brunelleschi. The basis of the first lasting patent institution of intellectual
property protection is found in a 1474 statute of the Venetian Republic. This
statute appeared 150 years before Englands Statute of Monopolies; moreover,
the system was sophisticated. The rights of inventors were recognized, an
incentive mechanism was included, compensation for infringement was
established, and a term limit on inventors rights was imposed.
American institutions of intellectual property protection are based on the English
system that began with the Statute of Monopolies (1624) and the Statute of
Anne (1710). The Statute of Monopolies granted fourteen-year monopolies to
authors and inventors and ended the practice of granting rights to non-

original/new ideas or works already in the public domain. In contrast to patent

institutions in Europe, literary works remained largely unprotected until the
arrival of Gutenbergs printing press in the fifteenth century. Even then there
were few true copyrights grantedmost were grants, privileges, and monopolies.
The Statute of Anne (1710) is considered by scholars to be the first statute of
modern copyright.
In the landmark case Miller v. Taylor (1769), the inherent rights of authors to
control what they produce, independent of statute or law, was affirmed. While
this case was later overruled in Donaldson v. Becket (1774), the practice of
recognizing the rights of authors had begun. Various more recent international
treaties like the Berne Convention treaty and the TRIPS agreement have
expanded the geographic scope of intellectual property protection to include
most of the globe.

READING MATERIAL

The term intellectual property is usually thought of as comprising four separate,

but often overlapping, legal fields i.e.; trademarks, copy rights, patents and trade
secret. However, the primary legislation regulating intellectual property in India
are; The Copyright Act 1957, The Trade Marks Act 1958, The Patents Act 1970,
The Geographical Indications (Registration and Protection) Act 1999, The Design
Act 2000, The Semiconductor Integrated Circuits Layout-Design Act 2000.

1.

TRADEMARKS AND SERVICE MARKS

A trademark or service mark is a word, name, symbol, or device used to indicate
the source, quality, and ownership of a product or service. A trademark is used in
the marketing of a product such as ADIDAS for shoes, while a service mark
typically indentifies a service such as CAFE COFFEE DAY for restaurant services.
A trademark or service mark identifies and distinguishes the products or services
of one person from those of others in same category. A trademark is a visual
representation attached to goods for the purpose of indicating their origin.
Trademarks provide guarantees of quality and consistency of the product or
service they identify. Thus upon encountering the golden arches that identify a
McDonalds restaurant, consumer understand the Big Mac they purchase in Delhi
will be the same quality as one purchased in Goa.

Section 2 (1) (m) of the Trade Marks Act 1999 defines a mark as, mark includes
a device, brand, heading, label, ticket, name, signature, word, letter, shape of
goods, packaging or combination of colours or any combination thereof.
Section 2 (1) (z) of the Trade Marks Act 1999 defines a service as, service of any
description which is made available to potential users, and includes the provision
of services in connection with business of any industrial or commercial matters
such as banking, communication, education, financing, insurance, chit funds, real
estate, transport, storage, material treatment, processing, supply of electrical or
other energy, boarding, lodging, entertainment, amusement, construction,
repair, conveying of news or information or advertising.
Section 2 (1) (zb) of the Trade Marks Act 1999 defines a trademark as, a mark
capable of being represented graphically and which is capable of distinguishing
the goods or services of one person from those of others and may include the
shape of goods, their packaging and combination of colours.
Illustration: Sia goes shopping for weekly provisions. She picks up an attractive
Koor Koore packet of chips presuming it to be standard Pepsi Co. product Kur
Kure. Little does she notice the spelling change on the packet of chips. When
she opens the packet, she discovers stale sub-standard chips. Has Sia been
duped? Does Pepsi Co. suffer a loss of reputation?
Yes, a consumer is said to be duped if he/she buys a commodity presuming it to
have originated from the certain identified source, when actually it is not. Yes the
reputation of Pepsi also takes a beating.
Therefore, in order to save the interests of the consumer and the trader it is said
that a definite symbol which marks out the origin of goods from a definite source
must be attached to the goods. Such a symbol is called trademark.

2.

COPYRIGHTS
Copyright is protection of original works of authorship fixed in any tangible
medium of expression. Works that may be copyrighted include literary, musical,
artistic, photographic, architectural, and cinematographic works; maps; and
computer software. Copyright describes the rights given to creators for their
literacy, musical and artistic works, such as novels and poetry, songs and
musical scores, painting and sculpture. Other works protected by copyrights
include films, choreography, architecture, advertisements, maps and technical
drawings, computer programmes and databases.
Copyrights provide exclusive right to creators to use or authorize others to use
their works. The creator of a work can prohibit or authorize its reproduction in
various forms, including printing, recording, broadcasting, translation or
adaptation. Copyright encourages human creativity. It provides economic rights
to creators which allow them or their heirs to benefit financially from their work

usually for a period lasting 60 years after the creators death. This provides not
only recognition for their work but also incentives to create more. Copyright is
available for original works; no judgment is made about the literary or artistic
quality. However, certain works are not protectable by copyright, such as titles,
name, short phrases or list of ingredients. Similarly, ideas, methods, and
processes are not protectable by copyright. The ideas in literary works do not
need to be original. But the form of expression must be original creation of the
author.
Illustration: Sameera has a brilliant idea for a movie. She invites Anusha over
coffee and shares the idea with her. Anusha capitalizes on the idea and makes a
movie called Ingenuity. Anusha has a copyright on the movie and Sameera
cannot claim copyright of her idea.
The owner of a copyright has the right to reproduce the work, prepare derivative
works based on the original work (such as sequel to the original), distribute the
copies, and to perform and display the work. Generally, violations of such rights
are protectable by infringement actions. But, some uses of copyrighted works are
considered fair use and do not constitute infringement, such as use of an
insignificant portion of work for noncommercial purposes of a copyrighted work.

3.

PATENTS
Inventions are protected by patents. An invention is a product or a process that
provides a new way of doing something or offers a new technical solution to
something. A patent is a grant form the government that permits its owner to
prevent others from making, using, importing, or selling an invention. The
domain or subject matter of patent law is the invention and discovery of new and
useful processes, machines, articles of manufacture, or compositions of matter.
There are three types of patents: first, utility patents, which are the most
common patents and which cover useful inventions and discoveries (such as the
typewriter, the auto-mobile); second design patents, which cover new, original,
and ornamental designs for articles (such as furniture); third plant patents, which
cover new and distinct asexually reproduced plant varieties (such as hybrid
flowers or trees).
Patent protection is usually provided for 20 years from the date of filing the
patent application. Once a patent expires, the protection ends and an invention
enters the public domain available for commercial exploitation by others. This
provides valuable information for other inventors as well as inspiration for future
generation of researchers and inventors. This leads to further invention and
innovation.
For an invention to be patentable it must be:

A new product or process,

Non-obvious, and

Useful and capable of industrial application.

Generally, patent law prohibits the patenting of an invention that is merely an
insignificant addition to or minor alteration of something already known.
Moreover, some items cannot be protected by patent, such as pure scientific
principles.
Illustration:

a.

Sheila discovers that turmeric powder has medicinal properties and can
cure blood pressure. As it is a mere discovery of a new property or new use of a
known substance, Sheila will not get a patent for it.

b.

Ramesh develops a new vaccine for cure of AIDS. He made an invention.

He will get a patent for it.

4.

TRADE SECRETS
A trade secret consists of any valuable business information that, if known by a
competitor, would afford the competitor some benefit or advantage. There is no
limit to the type of information that can be protected as trade secrets; recipes,
marketing plans, financial projections, and methods of conducting business can
all constitute trade secrets. There is no requirement that a trade secret be
unique or complex; thus, even something as simple and non technical as a list of
customers can qualify as a trade secret as long as it affords its owner a
competitive advantage and is not common knowledge.
If trade secrets were not protectable, companies would have no incentive to
invest time, money, and effort in research and development that ultimately
benefits the public. Trade secret law thus promotes the development of new
methods and processes of doing business in marketplace.
Illustration: The Yellow Chili chain of restaurants owned by Chef. Sanjeev Kapoor
has some special recipes for their business. So the recipes will be protectable
under trade secret protection.

5.

GEOGRAPHICAL INDICATORS
A need had arisen to protect agricultural, natural or manufactured goods,
handicraft and industry goods like food stuff. The primary reasons for protection
were to prevent unauthorized use of geographical indicators as well as promote
goods bearing the Indian geographical indicators in the export market. As per the
TRIPS Agreement, other countries were under no obligation to extend protection
unless a geographical indicator is protected in the country of its origin.

A geographical indication is a sign used on goods that have a specific

geographical origin. The goods (agricultural, natural or manufactured goods,
handicraft and industry goods like food stuff) possess qualities or a reputation
that are due to that place of origin. Since these qualities depend on the
geographical place of production, a specific link exists between the products and
their place of origin. For example, Darjeeling for tea of Darjeeling origin,
Kanjeevaram silk denotes the product from Kanjeepuram in South India,
Kolhapuri chappals from Kolhapur and Alphonso mangoes from Ratnagiri.
Geographical indicators denote that the product originates from a particular
place and the product has certain qualities or a reputation that are due to that
place of origin whereas, a trademark is a mark used by an enterprise, in relation
to goods or services, to distinguish them from others.

6.

DESIGNS
An industrial design is the ornamental or aesthetic aspect of an article. The
design may consist of 3 dimensional features such as the shape or surface of an
article or two dimensional features such as patterns, lines or colours. Industrial
designs make an article attractive and appealing and add to its commercial
value. For that reason, they are protected.
An owner of a registered design is assured an exclusive right against
unauthorized copying or imitation of the design. Protection generally lasts for an
initial 10 years after which it can be renewed for another 5 years. This protection
helps economic development by encouraging creativity in industry as well as in
traditional arts and crafts. It also helps promote more innovative and
aesthetically attractive products.
Illustration: Somya is the sole proprietor of Noodle Ltd. Noodle Ltd designs shoes,
jerseys and other sports accessories for football players, cricketers and golfers.
As a part of their annual celebrations they designed a Universal Sport Shoe
fitted for any sport. The shoe was specifically designed and used a patented
technology which controlled sweat output. Noodle Ltd has a design registration
on Universal Sport Shoe.

International Aspect of IPRs

Module IV: Introduction to Intellectual Property Laws

READING MATERIAL

There are number of international organizations and agencies that promote the
use and protection of intellectual property, such as;

International Trademark Association (INTA): It is a not-for-profit

international association composed chiefly of trademark owners and
practitioners. More than 5,000 trademark owners and professionals in more than
190 countries belong to INTA, together with others interested in promoting
trademarks.

World Intellectual Property Organization (WIPO): It was founded in 1883

and is a specialized agency of United Nations whose purposes are to promote
intellectual property throughout the world and to administer 24 treaties dealing
with intellectual property, including the Paris Convention, Madrid Protocol,
Trademark Law Treaty and Berne Convention. More than 180 nations are
members of WIPO.
There are also a number of international agreements and treaties that affect
intellectual property, such as:

Berne Convention for the Protection of Literary and Artistic works (the
Berne Convention): The Berne Convention was created in 1886 under the
leadership of Victor Hugo to protect literary and artistic work. It has more than
160 member nations. The Unites State became a party to the Berne Convention
in 1989. The Berne Convention is administered by WIPO and is based on the
percept that each member nation must treat nationals for purposes of copyright.

Madrid Protocol: The Madrid Protocol came into existence in 1996 and
allows trademark protection for more than 70 countries, including all 27
countries of the European Union, by means of a centralized trademark filing
procedure. The United States implemented the terms of the Protocol in late 2003.
This treaty facilitates a one-stop, low-cost, efficient system for the international
registration of trademarks by permitting a U.S. trademark owner to file for
international registration in any number of member countries by filling a single
standardized application form with the (USPTO) United States Patent and
Trademark Office, in English, with a single set of fees.

Paris Convention: One of the first treaties or conventions designed to

address trademark protection in foreign countries was the Paris Convention of
1883, adopted to facilitate international patent and trademark protection. The
Paris Convention is based on the principle of reciprocity so that foreign
trademark and patent owners may obtain in those member countries. Perhaps
the most significant benefit provided by the Paris Convention is that of priority.
An applicant for a trademark has six months after filing an application in any of
the more than 170 member nations to file a corresponding application in any of

the other member countries of the Paris Convention and obtain the benefits of
the first filling date. The Paris Convention is administered by WIPO.

North American Free Trade Agreement (NAFTA): The NAFTA came into
effect on January 1, 1994 and is adhered to by the United States, Canada, and
Mexico. The NAFTA resulted in some changes to U.S. trademark law, primarily
with regard to marks that include geographical terms.

General Agreement on Tariffs and Trade (GATT): GATT was concluded in

1994 and is adhered to by most of the major industrialized nations in the world.
The most significant changes to Unites Nations intellectual property law from
GATT are that nonuse of a trademark for three years creates a presumption the
mark has been abandoned and that the duration of a utility patent is now 20
years from the filing date of application rather than 17 years, as was previously
the case.