Intellectual Property Rights

What are IPRs?

The term property includes both
corporeal property (ownership of material things)

Eg : Land, Building
incorporeal property (any benefit other than material thing which
may be a subject matter of right)

Eg: Actionable claims, goodwill, intellectual property

rights such as trade marks, patents, copyrights, etc
Intellectual property is the property which is created by
the human intellect. It is creation of the human mind.

 The rights that are associated with the

intellectual property are called IPRs. Intellectual
property is governed by the Law of IPRs.
IPRs have value only when they are protected
under the various provisions of the IPR laws.

Knowledge is power is now to be

substituted by Protected knowledge is power in
the era where intellectual property rights and
their protection has become order of the world.

IPRs is that branch of law which protects some of the finer

manifestations of human achievements. The subject on IPRs has
grown in a variety of directions over recent years. Its increasing
economic significance for countries with any degree of industrial
development is making it more international and more complex. IP
in recent times has played a crucial dual role in the development of
industry, trade and commerce and has resulted in the protection of
every demesne where creative human endeavor has to be
protected.
Intellectual property is divided into two broad areas viz industrial
property and copyright. Industrial property consists of patents,
industrial designs and trade marks while copyright relates to artistic
creations. However in recent times all property resulting from the
exercise of human intellect is called intellectual property and hence
plant variety, geographical indications, integrated circuits have come
into existence in many countries.
Protection of IPRs is recognized as an important tool not only to
promote inventiveness but also to ensure adequate returns on the
investment made. It has become important for the technological,
industrial and economic development of a country.

MANAGEMENT OF IPRs

IPRs have no value without adequate protection. Protected

IPRs are creators of wealth and gaining currency the world over. But
the basic questions that arise are
Whether all ideas and inventions are protected
which of the ideas and inventions need protection
To what extent they need protection
what should be the cost involved in the protection
what is the uncertainty in the return on investment in IPRs
The essence lies in not only obtaining protection to the ideas and
inventions but also the costs of legal protection being justified from
business point of view.
Thus for the efficient management of the portfolio of intellectual
property, substantial knowledge of the subject is very essential.
Such a knowledge will facilitate evaluation of IP generated, ensuring
timely and effective protection of such property to enhance its value
and utilize it for strategic decision making to derive maximum
economic benefits.

International agreements related to IPRs

The Trade Related Aspects of Intellectual

Property Rights (TRIPS) in the GAAT is the
agreement governing the IPRs in the global
scenario.

It covers seven categories of IPRs viz

trademarks, copyrights, geographical
indications, industrial designs, patents,
integrated circuits and trade secrets.

It is the obligation of all the member

countries to take steps to modify their domestic
laws to be consist with the provisions of TRIPS.
Almost all the Indian laws are in conformity with
TRIPS except the law relating to patents. Indian
patent law has to be amended by Jan, 2005.

Trade marks

WHAT DO THE
TRADE MARKS
MEAN TO US?

 Trade marks give an indication to the purchaser or a

possible purchaser as to the manufacture or quality of
the goods
Trade marks give us an indication to our eyes of the trade
source from which the goods come, or the trade hands
through which they pass on their way to the market.
Trade mark (brand) itself is the seal of authenticity.
Trade marks stimulates further purchase as they serves
as a badge of loyalty and affiliation.
Trade marks enable consumers to make a life style or
fashion statement.

The registration of a trade mark confers upon the owner the

exclusive right to the use of the registered trade mark and
indicate so by using the symbol (R) in relation to the goods
or services in respect of which the mark is registered and
seek the relief of infringement in appropriate courts in the
country.

The exclusive right is however subject to any conditions

entered on the register such as limitation of area of use etc.

Also, where two or more persons have registered identical

or nearly similar mark due to special circumstances such
exclusive right does not operate against each other.

 No person shall be entitled to institute

any proceeding to prevent, or to recover
damages for, the infringement of an
unregistered trade mark.
However, owner of an unregistered trade
mark is entitled to take legal action
against any person for passing off.

Trade marks is governed by The Trade and Merchandise Marks Act,

1958. It provides for the registration and protection of trade marks
and also prevention of misuse of such marks.

Meaning of Mark : Mark means any symbol, device, brand,

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

Meaning of trade mark : Trade mark means a mark used in relation

to goods for the purpose of indicating a connection in the course of
trade between the goods and some person having the right as
proprietor to use the mark.

Certification trade mark : It means a mark used in the course of

trade in relation to goods certified by any person in respect of
origin, material, mode of manufacture, quality, accuracy or other
characteristics.

 Any name (including personal or

surname of the applicant or predecessor
in business or the signature of the
person) which is not unusual for trade to
adopt a mark.
Invented word or arbitrary word not being
directly descriptive of the character or
quality of the goods/service.
Letters or numerals or any combination
thereof.

 Devices, including fancy devices or symbols

Combination of colors or even a single color in
combination with a word or device.
Shapes of goods or their packaging.
Marks constituting a 3 dimensional design.
Sound marks when represented in
conventional notation or described in words
for being graphically represented.

 Must be capable of being represented by

a series of musical notes with or without
words
Public must recognize and associate the
sound as a trade mark which indicates
the goods/services of the applicant.
Ex: Goldwyn Meyer pictures, Harley
Davidson bike, etc.

Requisites of a trade mark

should be easy to speak, spell and remember
should be simple in design as well as attractive
should be distinguishable
should express desirable qualities of
merchandise
should be possible to be affixed on goods
should be different from other trade marks of the
same class of goods
should be capable of being registered and
protection
should contain one or more invented words

 Marks devoid of distinctive charactermeans not capable of distinguishing the

goods and services of the applicant from
that of others
Marks that are descriptive

 Ex: In Colgate Palmolive Companys

Trade Mark Application, the application
for registration of a two dimensional
pictorial mark consisting of the image of
a slug of a striped tooth paste in respect
of tooth paste- refused registration

Glasso for glass items

Computer world for computer accessories
FAST BAUD for modems (describing the quickness of
the modem);
104 KEY for computer keyboards (describing the
number of keys on a keyboard);
LIGHT for portable computers (describing the
computer's weight); and
TUBELESS for computer monitors (even if misdescriptive for a monitor that contains tubes).

 It is possible for descriptive marks to "become

distinctive" by achieving secondary meaning.
Secondary meaning indicates that although the
mark is on its face descriptive of the goods or
services, consumers recognize the mark as
having a source indicating function. Examples:
SHARP for televisions
DIGITAL for computers
WINDOWS for windowing software
INTERNATIONAL BUSINESS MACHINES for
computers and other business machines

 If the mark is of such a nature as to deceive

the public or cause confusion
It contains or comprises of any matter that is
likely to hurt the religious susceptibilities of any
class or section of the citizens of India
It comprises of scandalous or obscene matter
It is prohibited under the Emblems and Names
( Prevention of Improper use) Act, 1950.

Registration of trade mark

Any person claiming to be the proprietor of a trade

mark and desirous of registering it, shall apply in writing
to the Registrar of Trade Marks in the prescribed
manner. The Registrar shall after perusing the
application and if found in order, register the same and
issue certificate.

On registration, the registered proprietor of the mark

gets exclusive rights to use the mark.

 10 years from the date of usage or the date of

application.
Renewable for further periods of 10 years from
the date of expiration or of the last renewal of
registration.
If an application is made in a convention
country and within 6 months thereof, an
application for registration is made in India, the
registration of trade mark in India ( in
accordance with the local law) shall be with
effect from the date of the application in the
convention country.

Infringement of trade mark

If a person not being the registered user of a trade

mark or permitted in any manner, uses a mark which is
identical with or deceptively similar to the trade mark, in
the course of trade in relation to the goods for which the
mark is registered, then he is said to have infringed the
trade mark.
Remedies in case of infringement

Where a trade mark has been infringed, a suit can

be filed in the District Court having jurisdiction and the
following remedies can be sought
Injunction to restrain further infringement
Damages for the loss suffered.
Destruction of infringing labels or marks

 Geographical indication means an

indication which identifies such goods,
natural goods, manufactured goods as
originating or manufactured in the territory
where a given quality, reputation or other
characteristic of such goods is essentially
attributable to its origin (place of production
or manufacture).
Trade mark is used by enterprise in relation
to goods or services to distinguish them
from those of others.

 Darjeeling for tea originating from Indian

origin
Kanjeevaram silk denoting the product
to be from the well known Kancheepuram
in Southern India.
Benaras silk indicating the product of
Indian origin.
Scotch Whisky indicating the product of
Scottish origin.