Intellectual Property Rights: definition, objective, types

Introduction:
Intellectual property rights (IPR) have become important in the face of changing trade
environment which is characterized by global competition, high innovation risks, short
product cycle, need for rapid changes in technology, high investments in research and
development (R&D), production and marketing and need for highly skilled human
resources. Regardless of what product an enterprise makes or what service it
provides, it is likely that it is regularly using and creating a great deal of intellectual
property. There is an emergent need for enterprises and professionals to
systematically consider the steps required for protecting, managing and enforcing
intellectual property rights, so as to get the best possible commercial results from its
ownership.
Intellectual property has increasingly assumed a vital role with the rapid pace of
technological, scientific and medical innovation that we are witnessing today.
Moreover, changes in the global economic environment have influenced the
development of business models where intellectual property is a central element
establishing value and potential growth. In India several new legislations for the
protection of intellectual property rights (IPRs) have been passed to meet the
international obligations under the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS).
Intellectual property has therefore grown into one of the world’s biggest and fastest-
growing fields of law thereby necessitating the demand for IP professionals well versed
in this area to deal with (IPRs) across the national and international borders.
Intellectual property (IP) refers to the creations of the human mind like inventions,
literary and artistic works, and symbols, names, images and designs used in
commerce. Intellectual property is divided into two categories: 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. Intellectual property rights protect the interests of creators by giving them
property rights over their creations.
What is Property:
Property is sometimes referred to as a bundle of rights. This simple metaphor provides
one helpful way to explore the core concept. It reveals that property is not a thing, but
a right, or better, a collection of rights (over things) enforceable against others.
Explained another way, the term property signifies a set of relationships among people
that concern claims to tangible and intangible items.
It is implicit in this notion of property that property must have or entail some exclusive
1

right to make a claim against someone else. A general right to do something that
Page

anyone can do, or a right that belongs to everyone, is not the property of anyone.
Property is essentially of two kinds Corporeal Property and Incorporeal Property.
Corporeal Property can be further divided into Movable and Immovable Property.
Incorporeal property is of two kinds-in re propria and rights in re aliena or
encumbrances.
1. Corporeal Property –
Corporeal property is the right of ownership in material things. Corporeal
property is always visible and tangible. Corporeal property can be perceived by
senses. It can be seen or touched.
Examples -A House, Land, Car, Bike etc
Corporeal property may be divided into two classes-
Movable Property (Chattels) and Immovable property. (Land and
buildings)
All Corporeal Property is either movable or immovable. In English law,
these are termed as chattels and land respectively.
Movable Property - Movable property is one, which can be transferred
from one place to another place with the human efforts.
Immovable Property -According to the General Clauses Act, 1897
"Immovable property includes land, benefits arising out of land and
things attached to the earth or permanently fastened or anything
attached to the earth."
According to the Indian Regulation Act, "immovable property includes
land, building, hereditary allowance, rights of way, lights, Ferries,
Fisheries or any other benefit to arise out of land and things attached to
the earth or permanently fastened to anything attached to the earth but
not standing Timber, growing crops or grass.
Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable
property as "immovable property does not include standing Timber,
growing crops or grass.
2. Incorporeal Property –
Incorporeal property also called as intellectual or conventional property.
it includes all those valuable interests which are protected by law.
Incorporeal property is intangible. It cannot be Perceived by Senses.
Examples - Patents, Copyrights, Trademarks etc.
Incorporeal property is divided into two classes-
Jura in re propria Over Material things (for example patents, copyrights,
trademarks etc)
Jura in re Aliena encumbrances, whether over material or immaterial
things, for example, Lease, Mortgages and Servitude etc.
Here we are concern with the Incorporeal/intangible property.
What is Intellectual Property Right: Meaning and Definitions:
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 distinctive logo
2

design representing a soft drink company and its products, unique design elements of
Page

a web site, or a patent on the process to manufacture chewing gum.

Intellectual property, very broadly, means the legal rights which result from intellectual
activity in the industrial, scientific, literary and artistic fields. Countries have laws to
protect intellectual property for two main reasons. One is to give statutory expression
to the moral and economic rights of creators in their creations and the rights of the
public in access to those creations. The second is to promote, as a deliberate act of
Government policy, creativity and the dissemination and application of its results and
to encourage fair trading which would contribute to economic and social development.
Generally speaking, intellectual property law aims at safeguarding creators and other
producers of intellectual goods and services by granting them certain time-limited
rights to control the use made of those productions. Those rights do not apply to the
physical object in which the creation may be embodied but instead to the intellectual
creation as such. Intellectual property is traditionally divided into two branches,
“industrial property” and “copyright.”
The Convention Establishing the World Intellectual Property Organization (WIPO),
concluded in Stockholm on July 14, 1967 (Article 2(viii)) provides that
“intellectual property shall include rights relating to:
 literary, artistic and scientific works,
 performances of performing artists, phonograms and broadcasts,
 inventions in all fields of human endeavour,
 scientific discoveries,
 industrial designs,
 trademarks, service marks and commercial names and designations,
 protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary
or artistic fields.”
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most
comprehensive multilateral agreement on intellectual property. The areas of
intellectual property that it covers are:
a. Copyright and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organisations);
b. Trade marks including service marks;
c. Geographical indications including appellations of origin;
d. Industrial designs;
e. Patents including protection of new varieties of plants;
f. The lay-out designs (topographies) of integrated circuits;
g. The undisclosed information including trade secrets and test data.
Thus, the intellectual property rights (IPR) are intangible in nature and gives
exclusive rights to inventor or creator for their valuable invention or creation.
IPRs are category of intangible rights protecting commercially valuable products of
the human intellect. Intellectual property is all about the results of human creativity.
3

Its subject matter is formed by new ideas generated by man. Their application to
Page

human needs and desires can be of considerable benefit to mankind. New ideas
 can be embodied in familiar things such as books, music and art, in technical
machinery and processes, in designs for household objects and for commercial
ventures, and in all other sources of information.
In one line, IPR is Products of the human mind, the fruits of human creativity and
innovation
Need and Scope: Why Intellectual Property Rights?
The expressed goal of the IPR (except for Trademarks) is to promote progress. The
implementation of intellectual property rights is important because:
- To provide incentive to the individual for new creations.
- Providing due recognition to the creators and inventors.
- Ensuring the availability of the genuine and original products.
- Intellectual property protection is critical to fostering innovation.
Without protection of ideas, businesses and individuals would not reap the full benefits
of their inventions and would focus less on research and development. And even one
cannot fully compensate the creation of an artist and cultural vitality.
Thus, the needs of Intellectual Property Rights are properly stated above may be
summarized as:
1. “Monetary profit is the most important, in most cases, the only motive behind
man’s relentless toil, inventiveness and ingenuity”.
2. With the advent of biotechnology one of issue is legal characterization of the
invention.
3. It is created to protect the rights of individual to enjoy their creations and
invention.
4. Created to insure protection against unfair trade practices.
5. To assure the world a flow of useful, informative and intellectual works.
6. To encourage the continuing innovativeness and creativity of owners of IP.
Historical Background:
The concept of intellectual property is not new as Renaissance northern Italy is thought
to be the cradle of
the Intellectual Property system. A Venetian Law of 1474 made the first systematic
attempt to protect inventions by a form of patent, which granted an exclusive right to
an individual for the first time. In the same century, the invention of movable type and
the printing press by Johannes Gutenberg around 1450, contributed to the origin of the
first copyright system in the world.
Towards the end of 19th century, new inventive ways of manufacture helped trigger
large-scale industrialization accompanied by rapid growth of cities, expansion of
railway networks, the investment of capital and a growing transoceanic trade. New
ideals of industrialism, the emergence of stronger centralized governments, and
nationalism led many countries to establish their modern Intellectual Property laws. At
this point of time, the International Intellectual Property system also started to take
4
Page

shape with the setting up of the Paris Convention for the Protection of Industrial
Property in 1883 and the Berne Convention for the Protection of Literary and Artistic
Works in 1886.
Paris convention for the protection of Industrial property was convened in Paris in 1883
and was initially signed by 11 states. Convention was revised at Brussels in 1900, at
Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and
at Stockholm in 1967 and was amended in 1979.
The Paris Convention addresses patents, industrial design rights, trademarks, well
known marks, names and unfair competition (Colston, 1999). The Republic of India is
a member of Paris Convention since December 7, 1998. At present total 177 member
countries are part of the Paris Convention.
Berne Convention was formulated in the year 1886, for the protection of Literary and
Artistic works. “To protect, in as effective and uniform a manner as possible, the rights
of the authors in their literary and artistic works” is the aim of the Convention.
Berne Convention protects literary works, artistic works, dramatic works, musical
works and cinematographic works and it also protects derivative works based on other
pre-existing works, such as translation, adaptations, arrangements of music and other
alterations of a literary or artistic work. Berne Convention states the duration of the
copyright protection as 50 years after the author’s death. The Berne Convention was
revised several times to cope up with the technological challenges that is, first revision
took place in Berlin in 1908, followed by the revision in Rome in 1928, in Brussels in
1948, in Stockholm in 1967, and in Paris in 1971.
Basic principles of Berne Convention are, “national treatment”, according to which
works originating in one of the member States are to be given the same protection in
each of the member States as these grant to works of their own nationals, “automatic
protection”, according to which such national treatment is not dependent on any
formality that is, protection is granted automatically and is not subject to the formality
of registration, deposit or the like, and “independent of protection”, according to which
enjoyment and exercise of the rights granted is independent of the existence of
protection in the country of origin of the work. It is administered by WIPO.
Another development was Madrid Agreement. The agreement was framed on April 14,
1891 which deals with International registration of Marks and Protocol related to
Madrid Agreement, concluded in 1989. Contracting countries to this Madrid
Agreement, secure protection for their marks applicable to goods or services,
registered in the country of origin, by filling the said marks at the International Bureau
of Intellectual Property. Duration of the protection is valid for 10 years and which can
be renewed by paying prescribed fees. Currently, total 100 members are under Madrid
Agreement covering 116 contracting countries. It is administered by WIPO.
TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement is a
multilateral agreement on intellectual property, which came into force on 1 January
1995. TRIPS Agreement is administered by WTO (World Trade Organization). It is an
attempt to narrow the gaps in the way these rights are protected around the world, and
to bring them under common international rules. The agreement operates on a
5

foundation of two of the existing conventions by embodying the substantive provisions

Page
of the Paris and Berne Conventions, as well as adding new provisions. The types of
intellectual property covered by the TRIPS Agreement are copyright and related rights,
trademarks, including service marks, geographical indications, industrial designs,
patents, layout-designs of integrated circuits and undisclosed information, including
trade secrets. It establishes minimum levels of protection that each government has to
give to the intellectual property of fellow WTO members.
WIPO is the global forum for intellectual property services, policy, information and
cooperation, which was established in the year 1967. Mission of the WIPO is to lead
the development of a balanced and effective international intellectual property (IP)
system that enables innovation and creativity for the benefit of all. WIPO has 191
member states and headquarters is at Geneva, Switzerland. WIPO administers
conventions namely, PCT-The International Patent System, Madrid-The International
Trademark System, Hague- The International Design System, Lisbon- The
International system of Appellations of Origins, and Budapest-The International
Microorganism Deposit System.
IPR System in India:
As discussed above, historically the first system of protection of intellectual property
came in the form of (Venetian Ordinance) in 1485. This was followed by Statute of
Monopolies in England in 1623, which extended patent rights for Technology
Inventions. In the United States, patent laws were introduced in 1760. Most European
countries developed their Patent Laws between 1880 to 1889. In India Patent Act was
introduced in the year 1856 which remained in force for over 50 years, which was
subsequently modified and amended and was called “The Indian Patents and Designs
Act, 1911”. After Independence a comprehensive bill on patent rights was enacted in
the year 1970 and was called “The Patents Act, 1970”.
Specific statutes protected only certain type of Intellectual output; till recently only four
forms were protected. The protection was in the form of grant of copyrights, patents,
designs and trademarks. In India, copyrights were regulated under the Copyright Act,
1957; patents under Patents Act, 1970; trademarks under Trade and Merchandise
Marks Act 1958; and designs under Designs Act, 1911.
With the establishment of WTO and India being signatory to the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS), several new legislations were
passed for the protection of intellectual property rights to meet the international
obligations. These included: Trade Marks, called the Trade Mark Act, 1999; Designs
Act, 1911 was replaced by the Designs Act, 2000; the Copyright Act, 1957 amended
a number of times, the latest is called Copyright (Amendment) Act, 2012; and the latest
amendments made to the Patents Act, 1970 in 2005. Besides, new legislations on
geographical indications and plant varieties were also enacted. These are called
Geographical Indications of Goods (Registration and Protection) Act, 1999, and
Protection of Plant Varieties and Farmers’ Rights Act, 2001 respectively.
Over the past fifteen years, intellectual property rights have grown to a stature from
where it plays a major role in the development of global economy. In 1990s, many
6

countries unilaterally strengthened their laws and regulations in this area, and many
Page

others were poised to do likewise. At the multilateral level, the successful conclusion
of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in
the World Trade Organization elevates the protection and enforcement of IPRs to the
level of solemn international commitment. It is strongly felt that under the global
competitive environment, stronger IPR protection increases incentives for innovation
and raises returns to international technology transfer.
Types of Intellectual Property Right:
According to WIPO, Intellectual property is divided into two categories that is, Industrial
Property and Copyright. Industrial property includes patents for inventions,
trademarks, industrial designs and geographical indications. Copyright covers literary
works (such as novels, poems and plays), films, music, artistic works (e.g., drawings,
paintings, photographs and sculptures) and architectural design. Rights related to
copyright include those of performing artists in their performances, producers of
phonograms in their performances, producers of phonogram their recordings, and
broadcasters in their radio and television programs.
1. The Rules and Laws governing Intellectual Property Rights in India are as
follows:
2. The Copyright Act, 1957, The Copyright Rules, 1958 and International
Copyright Order, 1999
3. The Patents Act, 1970 The Patents Rules, 2003, The Intellectual Property
Appellate Board (Patents Procedure) Rules, 2010 and The Patents (Appeals
and Applications to the Intellectual Property Appellate Board) Rules, 2011
4. The Trade Marks Act, 1999, The Trade Marks Rules, 2002, The Trade Marks
(Applications and Appeals to the Intellectual Property Appellate Board) Rules,
2003 and The Intellectual Property Appellate Board (Procedure) Rules, 2003
5. The Geographical Indications of Goods (Registration and Protection) Act, 1999
and The Geographical Indications of Goods (Registration and Protection)
Rules, 2002
6. The Designs Act, 2000 and The Designs Rules, 2001
7. The Semiconductors Integrated Circuits Layout-Design Act, 2000 and The
Semiconductors Integrated Circuits Layout-Design Rules, 2001
8. The Protection of Plant varieties and Farmers’ Rights Act, 2001 and The
Protection of Plant varieties and Farmers Rights’ Rules, 2003
9. The Biological Diversity Act, 2002 and The Biological Diversity Rules, 2004
10. Intellectual Property Rights (Imported Goods) Rules, 2007
Few of the IPRs are as follows:
1. Patents:
Patents are granted in respect of inventions, i.e. technological improvements, great
and small, which contain at least some scintilla of inventiveness over what is previously
known. As per WIPO, A Patent is an exclusive right granted for an invention, which is
a product or a process that provides, in general, a new way of doing something, or
offers a new technical solution to a problem. According to Halsbury's Laws of England,
the word patent is used denoting a monopoly right in respect of an invention.
7
Page
Patent is a monopoly right conferred by Patent Office on an inventor to exploit his
invention subject to the provisions of Patents Act for a limited period of time. Patents
are territorial rights and the exclusive rights are only applicable in the country or region
in which a patent has been filed and granted, in accordance with the law of that country
or region.
Invention means a new product or process involving an inventive step and capable of
industrial application (The Patents Act of 1970).
Patent is an intellectual property right granted to inventor by concerned government
office for his novel technical invention. The term invention means solution of any
problem in terms of development of a product or a process. Among the different types
of IPR, patents are considered the most valuable and rightly so.
In India, the law governing patents is the Patents Act, 1970 (“Patents Act”). In India’s
continued efforts to comply with it’s commitment under TRIPS the Patents Act has
been amended thrice since 1995, by the Patents (Amendment) Act, 1999 (“First
Amendment”), the Patents (Amendment) Act, 2002 (“Second Amendment”) and
Patents (Amendment) Act, 2005 (“Third Amendment”), Prior to the Third Amendment,
the President of India had promulgated Patents (Amendment) Ordinance, 2004
(“Ordinance”), which was later replaced by the Third Amendment. The legislation is
supported by the Patents Rule, 2003 (“Rules”). These rules have been further
amended by Patents (Amendment) Rules 2005 w.e.f 01.01.2005. Thus, the Patent
Amendment Act, 2005 is now fully in force and operative.
The following outlines the current Indian patent law framework.
Which Inventions are Patentable?
The patentability of any invention needs to fulfil following criteria:
1. Usefulness: invention must have industrial applicability or applied for practical
purpose.
2. Novelty: invention must be new technology which has not been published or
available in prior art of the country or elsewhere in the world before the date of
patent filing.
3. Non obviousness: Invention which can be done by any ordinary skilled person
is obvious and cannot be patentable. Hence invention must not be obvious for
patentability.
As per Section 3 of the Patent Act, 1970 the following are not patentable:
- Frivolous invention
- Invention against the natural laws
- Inventions which are not fair to health of human, animal, plant life, environment
as well as contrary to public order or morality
- Discovery of any living thing; discovery of any non living substances occurring
in nature; formulation of any abstract theory; discovery of any scientific
principle.
- Substance or chemical obtained by mere admixture resulting in the aggregation
8
Page

of the properties; mere arrangement or re arrangement of known devices

 - Invention relating to atomic energy and related to security of India.
In patenting process at one hand inventor is granted exclusive rights which give
recognition as well as financial benefits but at the other hand inventor has to disclose
all the relevant information in descriptive way to the patent office at the time of filing
patent application. The information available in patent document can be seen by
anybody and no doubt it gives direction to other researchers to innovate further in the
relevant field.
Who can be the Applicant?
India grants patent right on a first-to-apply basis. The application can be made by either
(i) the inventor or (ii) the assignee or legal representative of the inventor. Foreign
applicants are given national treatment.
What is the Process of Registration?
The Patent filing steps are as follows:
Step 1: Filing of Patent Application or Priority Application
There are four patent offices at Chennai, Mumbai, New Delhi and Kolkata (Head
office). The applicant has to file patent application in appropriate form with all relevant
information concerned to invention such as description, claims, drawing, abstract, etc.
Applicant has option to file provisional specification to establish priority of the invention
when disclosed invention is only at a conceptual stage. Thereafter, with in 12 month
applicant have to file complete specification in prescribed format.
Step 2: Publication of Application
The patent application is published in the office journal after expiry of 18 months. The
applicant can also put up request for early publication by paying additional prescribed
fee.
Step 3: Opposition of Patent
The pre grant patent opposition, if any may be filed within three months of patent
publication. This type of opposition representation is entertained by controller of patent
office if patent filing applicant has put up a request for patent examination. There are
also provisions for post grant patent opposition.
Step 4: Request for Examination
The applicant has to apply separately for patent examination within 48 months of filing
of patent application with prescribed fees.
Step 5: Examination and Clarification of Raised Objections, if any
The patent examiner check all aspect of patentability i.e. Novelty, inventiveness, non
obviousness and industrial applicability and issue First Examiner Report (FER) to the
applicant. If objections are there in examination report than applicant has to clarify the
objections within one year.
9

Step 6: Grant of Patent

Page
The patent is granted to applicant by Controller after overcoming the objections raised
in examination process. As per Patent Amendment Act 2002, the applicant has to pay
renewal fee time to time to keep patent in force. The full details pertaining to Indian
patent can be referred to DIP&P website.19 The patent can be also e filed since 2007.
After getting the rights, the owner can explore these rights by industrial production or
can sell, distribute or licensing the rights as per his will. The rights of patent are granted
for 20 years. Once a patent expires then the invention enters in to public domain and
anybody can use that knowledge.
Compulsory Licences
The Patent Act gives monopoly to inventor to harvest financial gains for invention but
contrary in case of national emergency as per Section 92 of Patent Act, 1970
government can issue compulsory licences to third party for non-commercial use of
public. Beside these when authorized patent owner is not fulfilling the demand of
society by will or unable to produce the patentable product or service such as in case
of drugs, food, medical equipment, vaccination, lifesaving equipment, etc the
government is fully authorized to allow somebody else to produce patentable product
by giving compulsory license. In this case government is liable to pay fair justifiable
economic benefits to patent owner.
A patentee may surrender his patent under Section 63 at any time by giving notice to
the Controller in the prescribed manner.

2. Trademark:
Trademarks already existed in the ancient world. The Indian crafts men used to
engrave their signature on their jewellery or artistic creation around 3000 years ago.
With industrialization the trademark become key factor in modern world of international
trade.
A trade mark is a distinctive sign or logo that denotes about the particular item is
produced or provided by a specific person or industry or enterprise. Similar to
trademark, service mark distinguish service providing enterprises with their
competitors. A company may have different types of trademarks for their various
products but to distinguish themselves from other company or enterprise trade name
is being used.
Trade mark or trade name helps companies to make their recognition, reputation and
trust amongst the customers. In most of the cases, consumers rely on trademarks
where it is difficult to inspect a product or service quickly to determine its quality. A
particular segment of customers is very much concerned about the brand and pay
heavily for brands prestige even for similar sort of quality to distinguish themselves
from the crowd.
A trademark/ service mark comprises of words (name, surname, geographical name,
10

slogan, etc), letters and numerals, drawing, logo, symbol, phrase, image, design or a
combination of these elements to distinguish a business or service from the other.
Page

Beside these, there are certain other ‘non-traditional’ trademarks as follows:

 - Smell or factory marks: the smell of fresh cut grass for tennis balls, the odour of
beer for dart flights and roses for tyres have been registered in the UK. Similarly,
fresh floral fragrance reminiscent of Plumeria blossoms was registered in US
for sewing thread and embroidery yarn.
- Audible sign or Sound Marks: the distinguished sound marks in form of musical
note can be registered as sound mark. The NBC successfully registered the
musical notes as a trademark in 1950 for its radio broadcasting services. The
lion’s roar is also registered sound trademark for MGM.
- Coloured marks: this category includes words, devices with their colour
combination or colour as such. Similarly few taste and shapes (three
dimensional signs such as the three pointed Mercedes star) as nontraditional
trademarks can be also registered in some specific cases.
Important Criteria of Trademark Registration
As per UK Trademarks Act, 1994, the three main requirements for registering a
trademark are as follows:
a. The trademark should be a sign or anything that can convey information.
b. The sign should be capable of distinguishing products or services of one
undertaking from that of another. This is clearly a requirement of distinctiveness
of trademarks.
c. The trademark is capable of graphical representation to provide precise
identification in the trademark registry.
Indian Trademarks Act
The Indian trademarks act specifies that any mark which is distinctive i.e. capable of
distinguishing goods and services of one undertaking from another and capable of
being represented graphically can be trademarks.
Since trademarks do not grant exclusive right that could be exploited, there is no need
to limit their validity. But without time limit, trademark validity would lead to
unnecessary number of registered trademarks without any applicability. In India, the
initial term of trademark registration is for 10 years and thereafter it has to be renewed
from time to time. The applicant can apply for trademark registration at Trade Mark
Registry Office, Mumbai (head office), Delhi, Kolkata, Ahmadabad and Chennai.
Any person claiming to be the proprietor of a trademark used or proposed to be used
by that person can file an application for registration. The application may be made in
the name of the individual, partner of a firm, a company, any government department,
a trust, or even in name of joint applicants. Domestic and international applicants are
treated at par. An application can also be filed on behalf of a company that is about to
be incorporated or registered under the Companies Act, 1956.
Prior use of the trademark is not a prerequisite for filing application or its registration
and an application may be made for registration even if the intention of the applicants
is bona fide use of the trademark in the future. In such a case, the application can be
filed on a “proposed to be used basis”. However, in the case of descriptive marks, the
11

Trade Marks Registry usually insists upon proof of use of the mark and the
Page

distinctiveness acquired through such use before granting a registration.

 3. Copyright
Copyright was recognized only after invention of printing in the 15th century, which
enabled the reproduction of books in large numbers. Before that, creative writers,
musicians, artists wrote, composed or made their works for fame and recognition
rather than to earn a living and question of copyright never arose because copying
was a laborious and expensive process.
WIPO defines, Copyright (or author's right) is a legal term used to describe the rights
that creators have over their literary and artistic works. Works commonly protected by
copyright throughout the world include:
- literary works such as novels, poems, plays, reference works, newspaper
articles;
- computer programs, databases;
- films, musical compositions, and choreography;
- artistic works such as paintings, drawings, photographs, and sculpture;
- architecture; and advertisements, maps, and technical drawings
The Copyright Act, 1957 (“Copyright Act”), supported by the Copyright Rules, 1958
(“Copyright Rules”), is the governing law for copyright protection in India. Substantial
amendments were carried out to the Copyright Act, in early 2012 (“Amendment”).
Some of the salient amendments have been discussed in this section.
The Copyright Act provides that a copyright subsists in an original literary, dramatic,
musical or artistic work, cinematograph films, and sound recordings. However, no
copyright subsists in a cinematograph film if a substantial part of the film is an
infringement of the copyright in any other work or in a sound recording, if in making the
sound recording of a literary, dramatic or musical work, copyright in such work is
infringed.28 A computer programme is treated as a “literary work” and is protected as
such.
What Rights does Copyright Provide?
A copyright grants protection to the creator and his representatives for the works and
prevents such works from being copied or reproduced without his/ their consent. The
creator of a work can prohibit or authorize anyone to:
- reproduce the work in any form, such as print, sound ,video, etc;
- use the work for a public performance, such as a play or a musical work;
- make copies/recordings of the work, such as via compact discs, cassettes, etc.;
- broadcast it in various forms; or
- translate the same to other languages
The term of copyright is, in most cases, the lifetime of the author plus 60 years
thereafter. In India copyrights exist for 60 years for literary, dramatic, musical and
artistic works after the death of creator. In case of photograph, film, sound recording
copyright term is 60 years from the beginning of calendar year next following year in
which it is published or released. Besides these, author also gets moral rights for its
12

creations.
Page

Copyright Infringement
The copyright infringement means making, selling or taking financial benefits of
copyrighted work without permission of copyright owner. It is a criminal offence and as
per the act, minimum punishment for infringement is imprisonment for six month with
a minimum fine of Rs 50,000/-.
4. Industrial Design
The creative activity of achieving an ornamental or aesthetic appearance of mass
produced products or articles is covered under industrial design. The design can be
expressed either by two dimensional or by three dimensional forms. The Design Act
1949 of the United Kingdom refers to feature of shape, configuration, pattern or
ornament. Broadly, shape, surface, pattern, lines, colour, etc appearance related
features of industrial products such as watches, vehicles, mobiles, laptops, different
home appliances, buildings, textile designs or handicraft products are covered under
industrial design. The aesthetic value or how a product appeals is the main concern in
selling besides its technical quality and other aspects. To be protected under most
national laws, an industrial design must be new or original and nonfunctional.
Hence industrial design is only concerned with aesthetic features and any technical
features or aspects of the product to which it is applied are not protected by the design
registration. Although the technical features, if are novel could be protected by getting
the patent. Beside these, design which is literary or artistic in character such as
cartoon, label, leaflet, map, dressmaking pattern, etc is protected under copyrights
instead of industrial design.
The term of industrial design rights vary from country to country from 10 to 25 years.
In India as per Design Act, 2000 duration of protection of industrial design is for 10
years. This duration can be extended further for 5 years.
An industrial design encourages creativity and skill development amongst the
individual and manufacturing sector by promoting more aesthetically pleasing products
for the society. The design and shape of the product not only create aesthetic
appearance but in case of machine, furniture, automobile, etc. design is also indirectly
associated with ergonomics and plays a major role in customers ‘comfort.
5. The Protection of Plant and Varieties and Farmers Rights :
A plant variety represents a more precisely defined group of plants, selected from
within a species, with a common set of characteristics.
The Protection of Plant Varieties and Farmers' Right Act, 2001 has been enacted to
provide for the establishment of an effective system for protection of plant varieties,
the rights of farmers and plant breeders and to encourage the development of new
varieties of plants.
The objectives of the Act are:
- to establish an effective system for protection of plant varieties, the rights of
farmers and plant breeders and to encourage the development of new varieties
13

of plants;
Page
 - to recognize and protect the rights of the farmers in respect of their contribution
made at any time in conserving, improving and making available plant genetic
resources for the development of new plant varieties;
- to protect plant breeders’ rights to stimulate investment for research and
development both in the public and private sector for development of new plant
varieties;
- to facilitate the growth of seed industry in the country that will ensure the
availability of high-quality seeds and planting material to the farmers.
This Act was enacted to give effect to Article 27.3(b)79 of the TRIPs Agreement
relating to protection of plant varieties. India opted to protect them under a sui generis
system and passed the Act.
The Act includes:
- Protection of varieties developed through public and private sector research;
- Protection of varieties developed and conserved by farmers and traditional
communities, providing them with legal rights to save, use, sow, re-sow,
exchange, share, or sell their farm seed, although farmer shall not be entitled
to sell branded seed of a variety protected under this Act ;
- Encouraging plant breeders and researchers to develop new and improved
varieties;
- Establishment of the Protection of Plant Varieties and Farmers’ Rights Authority
(“PPV&FRA”) for the registration of new varieties and determine claims of
benefit sharing to such varieties;
- Provision of civil and criminal relief for infringement and passing off of protected
plant varieties.
- Provisions for granting compulsory licenses when reasonable requirements of
the public have not been satisfied.
The Act strikes a balance between the rights of farmers and breeders by rewarding the
farmers/local communities from the pool of National Gene Fund for their conservation
and development efforts and, at the same time, ensuring reward for innovation by
granting plant breeders’ rights.
Varieties Registerable under the Act
The following are registerable under the Act:
I. a new variety if it confirms the criteria of novelty, distinctiveness, uniformity
and stability; and
II. an extant variety if it confirms the criteria of novelty, distinctiveness,
uniformity and stability as specified under Protection of Plant Varieties and
Farmers’ Rights Regulations, 2006.
Term of Protection
As prescribed under Section 24 of the Act, the total period of validity of registration
shall not exceed:
14

I. eighteen years, in case of trees and vines;

Page

II. fifteen years, in case of extant varieties; and

 III. fifteen years, in any other case.
The certificate of registration issued under this Act is valid for nine years in case of
trees and vines and six years in case of other crops and a registrant is required to
renew the same for the remaining period of registration.
Setting up of PPV & FRA
The PPV&FRA was set up in November, 2005 for registration of new varieties and
determine claims of benefit sharing to such varieties. The Authority is located in New
Delhi. This Authority has already evolved the detailed rules and regulations and crop-
specific guidelines for seeking this protection. A National Plant Variety Registry has
been set up by PPV&FR under the Union ministry of agriculture to register crop
varieties.
Registration of Plant Varieties now Possible in India
The Act has started documentation and registration of varieties of 12 crops which
include the following: rice, wheat (bread wheat types), maize, sorghum (jowar), pearl
millet (bajra), chickpea (chana), pigeon pea (arhar), green gram (mung), blackgram
(urad), lentil (masur), field pea (matar) and kidney bean (rajmah).
6. Biological Diversity:
India has been a party to the Convention on Biological Diversity since 5th June 1992
and ratified the Convention on 18th February 1994. The Convention on Biological
Diversity is one of the most broadly subscribed international environmental treaties in
the world. Opened for signature at the Earth Summit in Rio de Janeiro Brazil in 1992,
it currently has 189 Parties - 188 States and the European Community - who have
committed themselves to its three main goals: the conservation of biodiversity,
sustainable use of its components and the equitable sharing of the benefits arising out
of the utilization of genetic resources. The Secretariat of the Convention is located in
Montreal, Canada. India is also a signatory to Cartagena Protocol on Biosafety signed
on 23rd January 2001 and ratified on 11th September 2003.
Only selective provisions of the Biodiversity Act, 2002 – namely, definition provisions,
provisions relating to the constitution of the National Biodiversity Authority (“NBA”) and
rule-making powers of Government – have been brought into force with effect from
October 1, 2003. NBA regulates the commercial / other uses of biodiversity by both
Indian and non-Indian entities. Prior to seeking any form of IPR in respect of biological
resources, the applicant will be required to obtain approval of the NBA.
The Act confers extensive powers on the NBA with regard to protection of biological
resources. The NBA will consist of a chairperson, seven ex-officio members
representing ministries and departments of the Federal Government, and five non-
official members who are specialists, scientists and representatives from the industry.
The ex-officio members include representatives from the tribal affairs ministry,
biotechnology, ocean development, the Indian systems of medicine and homeopathy,
and the ministries of environment and agriculture.
15

Some of the salient provisions of the Act are as follows:

Page
 - All foreign individuals, associations and organizations would be required to
seek the prior approval of the NBA to access any biological resource or the
results of research occurring in India, for any use. The NBA’s approval would
also have to be obtained before biological resources can be exported out of
India. Proposals have been made to set up biodiversity funds and management
committees at national, state, and municipal levels.
- All Indian citizens would have to seek the NBA’s prior approval to transfer the
results of research relating to any biological resource to foreigners. The term
“foreigners” has been defined as “individuals who are not Indian citizens”.
- Indian citizens, including local people and communities, vaids and hakims
(native Indian doctors) will have free access to biological resources for use
within the country for any purpose. However, the NBA’s prior approval would be
required before seeking any form of IPR on an invention based on a biological
resource.
- The NBA will have the power to impose conditions to ensure a share in the
benefits accruing from the acquisition of IPRs.
7. Geographical Indication:
Geographical indications (GI) are indications which identify a good as originating in the
territory of country, or a region or locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to its
geographical origin. GI is a sign used on goods that have a specific geographical origin
and possess qualities or a reputation that are belonging to the place of origin. Basmati
rice and Darjeeling tea are examples of GI from India. By virtue of their universal
reputation for quality, these indications have acquired great and enviable commercial
value.
The function of a GI is that it points to a specific place or region of production that
determines the characteristic qualities of the product that originates from there. It is
important that the product derives its qualities and reputation from that place. Since
those qualities depend on the geographical place of production, a specific link exists
between the products and place of origin.
Conclusion:
In knowledge-based economy, intellectual property rights are very much essential for
progressive societal development. The IPR is basic necessity to be a part of local as
well as global competitive trade as without dissemination of IPR knowledge and
implementation, creating the innovative environment is really impossible. It is essential
for policy makers to include IPR in basic educational system and promote IPR
registration by encouraging the innovators and creators. India is having all the
resources in terms of available raw material, cheap labour, innovative and creative
dedicated manpower. No doubt that India and other developing countries will definitely
harness its proportionate share in global trade by exploration in Intellectual Property
Rights.
16
Page