MOOT COURT PROJECT

Laws Relating to IPR

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA, BIHAR

Made by: Saurabh Mod, 1045, BBA LLB

Submitted to: Dr. Anshuman Pandey

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 ACKNOWLEDGEMENT

It gives me immense pleasure to express my gratitude towards all those who have
helped and encouraged me for the completion of this project. They all rendered
their valuable time and services in making this project a success.

Firstly, I would like to thank the all mighty God for giving blessing and support
in helping me to complete this project.

I take this opportunity to express my deep regards to my guide, Dr. Anshuman

Pandey sir for his exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis

I am even thankful to my institution, Chanakya National Law University, Patna

to give me such an interesting project to work on.

Last, but not the least, I express my sincere thanks to my parents for their
generous support and cooperation throughout the project.

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 List of Content

Introduction…………………………………………………………………………………4
International Instruments Relating IPR…………………………………………...……...6

IPR Laws in India………………………………………………………………………….10

Conclusion…………………………………………………………………………………..13

Bibliography...………………………………………………………………………………14

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 Chapter 1- Introduction
We encounter intellectual property at every step of our lives today. The design on the bed sheet
and the pillow covers, the bed and other items of furniture in the house, cereals for breakfast,
pasteurised milk in tetra-pack, soft drinks and their bottles, television, personal computer, gas
stove, microwave, refrigerator, vehicles, weighing machine, books, mobile phone, films, music
cassettes, tiles, paints, and practically everything we use is the product of human ingenuity,
knowledge and skill, besides labour and capital and falls under some kind of intellectual
property that had to be respected before the item could be lawfully manufactured.

IP is a dynamic area; as science & technology make rapid advances, and as competition for
markets becomes even fiercer, human ingenuity is throwing up ever new ideas and newer
products. Newer areas are emerging with claims for recognition as IP. They have to be
accommodated as IP either in one of the existing categories or in new categories that have to
be created. Thus while copyright originally was concerned with works of literature and artistic
works gradually its scope expanded to cover works of drama, music, photography,
cinematography, audio-visual recordings, performances, broadcasts and now computer
programmes.

What is Intellectual Property?

Intellectual property Right (IPR) is a term used for various legal entitlements which attach to
certain types of information, ideas, or other intangibles in their expressed form. The holder of
this legal entitlement is generally entitled to exercise various exclusive rights in relation to the
subject matter of the Intellectual Property. The term intellectual property reflects the idea that
this subject matter is the product of the mind or the intellect, and that Intellectual Property
rights may be protected at law in the same way as any other form of property. Intellectual
property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or
enforcement of IP rights must be pursued or obtained separately in each territory of interest.

Intellectual property rights (IPR) can be defined as the rights given to people over the creation
of their minds. They usually give the creator an exclusive right over the use of his/her creations
for a certain period of time. Intellectual property is an intangible creation of the human mind,
usually expressed or translated into a tangible form that is assigned certain rights of property.
Examples of intellectual property include an author's copyright on a book or article, a

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distinctive logo design representing a soft drink company and its products, unique design
elements of a web site, or a patent on the process to manufacture chewing gum.1

What is Intellectual Property Rights?

Intellectual property rights (IPR) can be defined as the rights given to people over the creation
of their minds. They usually give the creator an exclusive right over the use of his/her creations
for a certain period of time. Intellectual property (IP) refers to creations of the mind: inventions,
literary and artistic works, and symbols, names, images, and designs used in commerce.

Categories of Intellectual Property One can broadly classify the various forms of IPRs into two
categories:

• IPRs that stimulate inventive and creative activities (patents, utility models, industrial
designs, copyright, plant breeders’ rights and layout designs for integrated circuits) and

• IPRs that offer information to consumers (trademarks and geographical indications).

IPRs in both categories seek to address certain failures of private markets to provide for an
efficient allocation of resources.

IP is divided into two categories for ease of understanding:

1. Industrial Property

2. Copyright

Industrial property, which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source; and

Copyright, which includes literary and artistic works such as novels, poems and plays, films,
musical works, artistic works such as drawings, paintings, photographs and sculptures, and
architectural designs. Rights related to copyright include those of performing artists in their
performances, producers of phonograms in their recordings, and those of broadcasters in their
radio and television programs.

1
http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf

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 Chapter 2- International Instruments Relating To IPR
Intellectual property has a dual nature, i.e. it has both a national and international dimension.
For instance, patents are governed by national laws and rules of a given country, while
international conventions on patents ensure minimum rights and provide certain measures for
enforcement of rights by the contracting states. Strong protection for intellectual property rights
(IPR) worldwide is vital to the future economic growth and development of all countries.
Because they create common rules and regulations, international IPR treaties, in turn, are
essential to achieving the robust intellectual property protection that spurs global economic
expansion and the growth of new technologies.

1. Paris Convention for the Protection of Industrial Property 1883

During the last century, before the existence of any international convention in the field of
industrial property, it was difficult to obtain protection for industrial property rights in the
various countries of the world because of the diversity of their laws. Moreover, patent
applications had to be made roughly at the same time in all countries in order to avoid a
publication in one country destroying the novelty of the invention in the other countries. These
practical problems created a strong desire to overcome such difficulties. During the second half
of the last century the development of a more internationally oriented flow of technology and
the increase of international trade made harmonization of industrial property laws urgent in
both the patent and the trademark field. 2

The Paris Convention is one of the Intellectual Property Treaties administered by WIPO. It was
launched to provide some international harmonizing and streamlining of intellectual property
laws. Adopted on March 20, 1883 at Paris and entered into force on July 7, 1884. It provides
basic guidelines for the protection of industrial property (patents, utility models, industrial
designs, trademarks, service marks, trade names, indications of source or appellations of origin,
and the repression of unfair competition) and has substantive provisions for national treatment,
right of priority and common rules. This treaty came into force in India from December 7,
1998.

2
http://www.wipo.int/treaties/en/ip/paris/summary_paris.html

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 2. Berne Convention for the Protection of Literary and Artistic Works 1886

Copyright protection on the international level began by about the middle of the nineteenth
century on the basis of bilateral treaties. A number of such treaties providing for mutual
recognition of rights were concluded but they were neither comprehensive enough nor of a
uniform pattern. The need for a uniform system led to the formulation and adoption of the
Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention is
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the oldest international treaty in the field of copyright. It is open to all States.

Adopted on September 9, 1886 at Berne and entered into force on December 4, 1887. Originally
signed in 1886 at Berne, Switzerland, it was revised in 1914, 1928, 1948, 1967, 1971, and
1979.

This Convention on Copyrights rests on three basic principles – national treatment, automatic
protection and independence of protection; it also contains a series of provisions determining
the minimum protection to be granted. India became signatory of the Berne Convention on
April 1, 1928. The Berne Convention deals with the protection of works and the rights of their
authors. It is based on three basic principles and contains a series of provisions determining the
minimum protection to be granted, as well as special provisions available to developing
countries that want to make use of them.

The three basic principles are the following:

(a) Works originating in one of the Contracting States (that is, works the author of which is a
national of such a State or works first published in such a State) must be given the same
protection in each of the other Contracting States as the latter grants to the works of its own
nationals (principle of "national treatment") .

(b) Protection must not be conditional upon compliance with any formality (principle of
"automatic" protection).

(c) Protection is independent of the existence of protection in the country of origin of the work
(principle of "independence" of protection). If, however, a Contracting State provides for a
longer term of protection than the minimum prescribed by the Convention and the work ceases
to be protected in the country of origin, protection may be denied once protection in the country
of origin ceases.

3
http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

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3. Patent Cooperation Treaty (PCT)

Adopted on June 19, 1970 at Washington D.C. and entered into force on January 24, 1978. It
facilitates patent protection for an invention simultaneously in a large number of countries; it
came into force in India from December 7, 1998.

The Patent Cooperation Treaty (PCT) is a Global Protection Treaty administered by WIPO.
The Patent Cooperation Treaty aims to provide a simplified and less costly method of
preserving the rights to file a patent application in member countries. It seeks to achieve this
by providing what is known as a PCT application.4

4. The Madrid Agreement Concerning the International Registration of Marks

and the Protocol Relating to that Agreement Introduction

The Madrid system (officially the Madrid system for the international registration of marks) is
the primary international system for facilitating the registration of trademarks in multiple
jurisdictions around the world. Its legal basis is the multilateral treaty Madrid Agreement
Concerning the International Registration of Marks of 1981, as well as the Protocol Relating
to the Madrid Agreement (1989).5

The Madrid system provides a centrally administered system of obtaining a bundle of

trademark registrations in separate jurisdictions. Registration through the Madrid system does
not create a unified registration, as in the case of the European Union trade mark system; rather,
it creates a bundle of national rights through an international registration able to be
administered centrally. Madrid provides a mechanism for obtaining trademark protection in
many countries around the world which is more effective than seeking protection separately in
each individual country or jurisdiction of interest.

The Madrid Protocol system provides for the international registration of trade marks by way
of one application that can cover more than one country. The opportunity of having a single
registration to cover a wide range of countries gives advantages, both in terms of portfolio
management and cost savings, as opposed to a portfolio of independent national registrations.

Madrid now permits the filing, registration and maintenance of trade mark rights in more than
one jurisdiction, provided that the target jurisdiction is a party to the system. The Madrid

4
http://www.wipo.int/treaties/en/registration/pct/
5
https://www.uspto.gov/trademark/laws-regulations/madrid-protocol/international-applicationsmadrid-
protocol-faqs

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system is administered by the International Bureau of the World Intellectual Property
Organization (WIPO) in Geneva, Switzerland. There are 90 countries part of the Madrid
System.

5. World Intellectual Property Organization (WIPO)

The World Intellectual Property Organization (WIPO) is an international organization

dedicated to facilitating worldwide protection of the rights of creators and owners of
intellectual property.

Adopted on July 14, 1967 at Stockholm and entered into force on April 26, 1970. WIPO was
established under this Convention with two main objectives - to promote the protection of
intellectual property worldwide and to ensure administrative cooperation among the
intellectual property Unions established by the treaties that WIPO administers. India became a
member on May 1, 1975. 6

WIPO's origin dates back to 1884 when the Paris Convention entered into force with 14
member States, which set up an International Bureau to carry out administrative tasks, such as
organizing meetings of the member States. Like the Paris Convention, the Berne Convention
set up an International Bureau to carry out administrative tasks. In 1893, these two small
bureaux united to form an international organization called the United International Bureaux
for the Protection of Intellectual Property (best known by its French acronym BIRPI). Based
in Berne, Switzerland, with a staff of seven, this small organization was the predecessor of the
World Intellectual Property Organization of today - a dynamic entity with 185 member States,
a staff that now numbers some 938, from 95 countries around the world, and with a mission
and a mandate that are constantly growing. This International Bureau evolved over time to
become known in 1970 as WIPO. In 1974, WIPO became a specialized agency of the United
Nations and in 1996, WIPO expanded its role into globalized trade by entering into a
cooperation agreement with the World Trade Organization.

6
https://www.iso.org/organization/9799.html

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 Chapter 3- IPR Laws in India

Copyright

Copyright protection in India is available for any literary, dramatic, musical, sound recording
and artistic work. The Copyright Act 1957 provides for registration of such works. Although
an author’s copyright in a work is recognised even without registration, it is advisable to get
the same registered since it furnishes prima facie evidence of copyright in a court of law. 7

Infringement of copyright entitles the owner to remedies of injunction, damages and

accounts.Copyright in a literary, dramatic, musical or artistic work (other than a photograph)
published within the lifetime of the author subsists for fifty years from the lifetime of the
author. An Amendment Bill is on the anvil to extend the term in favour of performers1 (at
present twenty five years) to fifty years (in order to bring it in accord with the TRIPS
Agreement). The amendment also aims to bring original works relating to satellite
broadcasting, computer software and digital technology under copyright protection. With the
issuance of the International Copyright Order, 1999,the provisions of Copyright Act have been
extended to nationals of all World Trade Organization (WTO) Member countries.

Trade Marks

The law relating to registration of trade marks is governed by the Trade and Merchandise Marks
Act, 1958. A distinctive mark (as defined) can be registered under the said Act. In case of
infringement of registered trademarks, the statutory remedies of injunction, damages, accounts
and delivery up of infringing labels and marks are available. An action for "passing-off" would
lie in relation to an unregistered mark under certain circumstances.8

In order to simplify the law and meet India’s international obligations under the TRIPS, a new
law called the Trade Marks Act, 1999 has been passed but has not yet been brought into force.
Extensive changes have been introduced by the new Act. The major changes are given below:

 Definition of a 'mark' is extended to include the shape of goods, packaging, and

combination of colours.

7
http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html
8

https://www.advocatekhoj.com/library/bareacts/trademarks/index.php?Title=Trade%20Marks%20Act,%2019
99

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  Service Marks: These would now be allowed to be registered.

 Well Known ‘Mark’: An application for registration of a mark may be refused if it is

similar or identical to a well known mark.

 Collective marks: The new Act will permit registration of marks in favour of
associations of persons as "collective marks". Collective marks are defined as signs
which distinguish the geographical origin, material, mode of manufacture, quality or
other common characteristics of goods or services used or intended to be used, in
commerce, by the members of a co-operative, an association, or other collective group
or organisation.

 Duration of registration: The 7 years period available under the existing Act has been
increased to 10 years, extendable by further periods of ten years each.

 Multiclass registration applications: Applicants would be able to file a single

application for marks capable of registration in number of classes.

 Infringement of a mark: Offences relating to trade mark infringement have been dealt
with more severely under the new Act.

Patents

The subject is covered by the Patents Act, 1970. India recognises product patent protection for
a period of 14 years. However, in three areas: food, chemicals and pharmaceuticals, it
recognises only a process patent for a period of 7 years. With the signing of the GATT
Agreement, the Patents Act, 1970 has been amended by the Patents (Amendment) Act, 1999
to bring it in line with the Trade TRIPS Agreement. The amended law would allow the filing
of all product patents with a regulatory authority. It also contains provision for granting
Exclusive Marketing Rights (EMRs) for five years or till the patent is granted or rejected
whichever is earlier.9

The Patents (Second Amendment) Act 20022 recently passed by the Parliament provides
protection for new micro organisms and proposes a uniform 20 year term from filing date for

9
http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf

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all patents granted after commencement of the Act. It also provides for publication of all patent
applications within 18 months of filing or priority date, whichever is earlier.

Industrial Design

The Designs Act, 2000 protects certain designs. The features of shape, configuration, pattern,
ornament or composition of lines or colours applied to any ‘article’ whether in two or three
dimensional forms (or both), by an industrial process which appeals to the eye can be registered
under the said Act. The Designs Act 2000 brought into force in May 2001 entitles an applicant
to apply for registration in more than one class. However, registration is granted for only one
class. Furthermore detailed classification of designs has been incorporated conforming to the
international regime.10

Copyright in the design under the 2000 Act would be protected for a period of 10 years from
the date of registration.

Geographical Indication

The Geographical Indication of Goods (Registration and Protection) Act, 1999, was enacted to
register and protect geographical indicia of goods that originate from or are manufactured in a
particular territory, region or even locality. These goods include agricultural, natural or
manufactured goods that are distinct from similar products due to quality, reputation or any
other characteristic that is essentially attributable to their geographical origin. Under the Act,
such distinctive geographical indicia can be protected by registration. The Act thus facilitates
promotion of Indian goods when exported overseas and in turn protects consumers from
deception.11

An application for registration of a geographical indication can be made by any authority,

organization or association of persons representing the interest of the producers of the
concerned goods. Registration would entitle a registered proprietor, or a duly authorized user,
to the exclusive right of usage of that particular geographical indication with respect to the
goods for which it is registered and to obtain relief for any infringement thereof. It may be

10
http://www.ipindia.nic.in/writereaddata/images/pdf/act-of-2000.pdf
11
http://www.wipo.int/wipolex/en/text.jsp?file_id=128105

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pointed out however, that non-registration does not mean non-protection of a rightful user.
Registration affords better protection in an action for infringement.

Chapter 4- Conclusion

The importance of IPR and their protection is acknowledged the world over as essential to
business. In tune with the world scenario, India too has recognized the value of IP, which
recognition has been consistently upheld by legislators, courts and the industry. India is now a
signatory to various IP treaties and conventions. This has helped India become more attuned to
the world’s approaches and attitudes towards IP protection. India has already taken steps to
comply with its obligations under TRIPS, and the Indian IP law regime is almost at par with
the regimes of many developed nations.

Historically, the enforcement of IPRs in India was not particularly effective. However, recent
judicial rulings and steps taken by various enforcement agencies demonstrate that India is
gearing up for effective protection and enforcement of IPRs. The Indian police has established
special IP cells where specially trained police officers have been appointed to monitor IP
infringement and cyber crimes. Various Indian industries have also become more proactive in
protecting their IPRs. For example, the Indian Music Industry, an association of music
companies, which headed by a retired senior police official, has taken similar proactive steps
to combat music piracy. All in all, India has taken many positive steps toward improving its
IPR regime and is expected to do much more in the coming years to streamline itself with the
best practices in the field of intellectual property rights.

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 Chapter 5- Bibliography

Websites: - http://www.wipo.int

http://iprlawindia.org/

https://www.unido.org

Library: - Chanakya National Law University

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