Intellectual property rights #.pdf
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About This Presentation
Intellectual property rights
Slide Content
# Page / 1 #
INTELLECTUAL PROPERTY RIGHTS
NIHAR RANJAN MISHRA
Intellectual property (IP) is a category of property that includes
intangible creations of the human intellect, and primarily
encompasses copyrights, patents, and trademarks. It also includes
other types of rights, such as trade secrets, publicity rights, moral rights,
and rights against unfair competition. Artistic works like music and
literature, as well as some discoveries, inventions, words, phrases,
symbols, and designs, can all be protected as intellectual property. It was
not until the 19th century that the term "intellectual property" began to be
used, and not until the late 20th century that it became common place in
the majority of the world.
The main purpose of intellectual property law is to encourage the
creation of a large variety of intellectual goods. To achieve this, the law
gives people and businesses property rights to the information and
intellectual goods they create usually for a limited period of time. This
gives economic incentive for their creation, because it allows people to
profit from the information and intellectual goods they create. These
economic incentives are expected to stimulate innovation and contribute
to the technological progress of countries, which depends on the extent
of protection granted to innovators. The intangible nature of intellectual
property presents difficulties when compared with traditional property like
land or goods. Unlike traditional property, intellectual property is
"indivisible" – an unlimited number of people can "consume" an
intellectual good without it being depleted. Additionally, investments in
intellectual goods suffer from problems of appropriation – a landowner
can surround their land with a robust fence and hire armed guards to
INTELLECTUAL PROPERTY RIGHTS
NIHAR RANJAN MISHRA
Intellectual property (IP) is a category of property that includes
intangible creations of the human intellect, and primarily
encompasses copyrights, patents, and trademarks. It also includes
other types of rights, such as trade secrets, publicity rights, moral rights,
and rights against unfair competition. Artistic works like music and
literature, as well as some discoveries, inventions, words, phrases,
symbols, and designs, can all be protected as intellectual property. It was
not until the 19th century that the term "intellectual property" began to be
used, and not until the late 20th century that it became common place in
the majority of the world.
The main purpose of intellectual property law is to encourage the
creation of a large variety of intellectual goods. To achieve this, the law
gives people and businesses property rights to the information and
intellectual goods they create usually for a limited period of time. This
gives economic incentive for their creation, because it allows people to
profit from the information and intellectual goods they create. These
economic incentives are expected to stimulate innovation and contribute
to the technological progress of countries, which depends on the extent
of protection granted to innovators. The intangible nature of intellectual
property presents difficulties when compared with traditional property like
land or goods. Unlike traditional property, intellectual property is
"indivisible" – an unlimited number of people can "consume" an
intellectual good without it being depleted. Additionally, investments in
intellectual goods suffer from problems of appropriation – a landowner
can surround their land with a robust fence and hire armed guards to
# Page / 2 #
protect it, but a producer of information or an intellectual good can usually
do very little to stop their first buyer from replicating it and selling it at a
lower price. Balancing rights so that they are strong enough to encourage
the creation of intellectual goods but not so strong that they prevent the
goods' wide use is the primary focus of modern intellectual property law.
History
The Statute of Anne came into force in 1710.
The Statute of Monopolies (1624) and the British Statute of Anne (1710)
are seen as the origins of patent law and copyright respectively, firmly
establishing the concept of intellectual property.
The first known use of the term intellectual property dates to 1769, when
a piece published in the Monthly Review used the phrase. The first clear
example of modern usage goes back as early as 1808, when it was used
as a heading title in a collection of essays.
The German equivalent was used with the founding of the North German
Confederation whose constitution granted legislative power over the
protection of intellectual property to the confederation. When the
administrative secretariats established by the Paris Convention (1883)
and the Berne Convention (1886) merged in 1893, they located in Berne,
and also adopted the term intellectual property in their new combined
title, the United International Bureau for the Protection of Intellectual
Property.
The organization subsequently relocated to Geneva in 1960, and was
succeeded in 1967 with the establishment of the World Intellectual
Property Organization (WIPO) by treaty as an agency of the United
Nations. According to Lemley, it was only at this point that the term really
began to be used in the United States (which had not been a party to the
protect it, but a producer of information or an intellectual good can usually
do very little to stop their first buyer from replicating it and selling it at a
lower price. Balancing rights so that they are strong enough to encourage
the creation of intellectual goods but not so strong that they prevent the
goods' wide use is the primary focus of modern intellectual property law.
History
The Statute of Anne came into force in 1710.
The Statute of Monopolies (1624) and the British Statute of Anne (1710)
are seen as the origins of patent law and copyright respectively, firmly
establishing the concept of intellectual property.
The first known use of the term intellectual property dates to 1769, when
a piece published in the Monthly Review used the phrase. The first clear
example of modern usage goes back as early as 1808, when it was used
as a heading title in a collection of essays.
The German equivalent was used with the founding of the North German
Confederation whose constitution granted legislative power over the
protection of intellectual property to the confederation. When the
administrative secretariats established by the Paris Convention (1883)
and the Berne Convention (1886) merged in 1893, they located in Berne,
and also adopted the term intellectual property in their new combined
title, the United International Bureau for the Protection of Intellectual
Property.
The organization subsequently relocated to Geneva in 1960, and was
succeeded in 1967 with the establishment of the World Intellectual
Property Organization (WIPO) by treaty as an agency of the United
Nations. According to Lemley, it was only at this point that the term really
began to be used in the United States (which had not been a party to the
# Page / 3 #
Berne Convention), and it did not enter popular usage there until
passage of the Bayh-Dole Act in 1980.
According to Morin, "the global intellectual property regime is currently in
the midst of a paradigm shift". Indeed, up until the early 2000s the global
IP regime used to be dominated by high standards of protection
characteristic of IP laws from Europe or the United States, with a vision
that uniform application of these standards over every country and to
several fields with little consideration over social, cultural or
environmental values or of the national level of economic development.
Morin argues that "the emerging discourse of the global IP regime
advocates for greater policy flexibility and greater access to knowledge,
especially for developing countries." Indeed, with the Development
Agenda adopted by WIPO in 2007, a set of 45 recommendations to
adjust WIPO’s activities to the specific needs of developing countries and
aim to reduce distortions especially on issues such as patients’ access
to medicines, Internet users’ access to information, farmers’ access to
seeds, programmers’ access to source codes or students’ access to
scientific articles. However, this paradigm shift has not yet manifested
itself in concrete legal reforms at the international level.
Similarly, it is based on these backgrounds that the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) agreement requires
members of the WTO to set minimum standards of legal protection, but
its objective to have a “one-fits-all” protection law on Intellectual Property
has been viewed with controversies regarding differences in the
development level of countries. Despite the controversy, the agreement
has extensively incorporated intellectual property rights into the global
trading system for the first time in 1995, and has prevailed as the most
comprehensive agreement reached by the world.
Berne Convention), and it did not enter popular usage there until
passage of the Bayh-Dole Act in 1980.
According to Morin, "the global intellectual property regime is currently in
the midst of a paradigm shift". Indeed, up until the early 2000s the global
IP regime used to be dominated by high standards of protection
characteristic of IP laws from Europe or the United States, with a vision
that uniform application of these standards over every country and to
several fields with little consideration over social, cultural or
environmental values or of the national level of economic development.
Morin argues that "the emerging discourse of the global IP regime
advocates for greater policy flexibility and greater access to knowledge,
especially for developing countries." Indeed, with the Development
Agenda adopted by WIPO in 2007, a set of 45 recommendations to
adjust WIPO’s activities to the specific needs of developing countries and
aim to reduce distortions especially on issues such as patients’ access
to medicines, Internet users’ access to information, farmers’ access to
seeds, programmers’ access to source codes or students’ access to
scientific articles. However, this paradigm shift has not yet manifested
itself in concrete legal reforms at the international level.
Similarly, it is based on these backgrounds that the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) agreement requires
members of the WTO to set minimum standards of legal protection, but
its objective to have a “one-fits-all” protection law on Intellectual Property
has been viewed with controversies regarding differences in the
development level of countries. Despite the controversy, the agreement
has extensively incorporated intellectual property rights into the global
trading system for the first time in 1995, and has prevailed as the most
comprehensive agreement reached by the world.
# Page / 4 #
Intellectual property rights
Intellectual property rights include patents, copyright, industrial design
rights, trademarks, plant variety rights, trade dress, geographical
indications, and in some jurisdictions trade secrets. There are also more
specialized or derived varieties of sui generis exclusive rights, such as
circuit design rights (called mask work rights in the US)
and supplementary protection certificates for pharmaceutical products
(after expiry of a patent protecting them) and database
rights (in European law).
Patents
A patent is a form of right granted by the government to an inventor,
giving the owner the right to exclude others from making, using, selling,
offering to sell, and importing an invention for a limited period of time, in
exchange for the public disclosure of the invention. An invention is a
solution to a specific technological problem, which may be a product or
a process and generally has to fulfill three main requirements: it has to
be new, not obvious and there needs to be an industrial applicability. To
enrich the body of knowledge and stimulate innovation, it is an obligation
for patent owners to disclose valuable information about their inventions
to the public.
Copyright
A copyright gives the creator of an original work exclusive rights to it,
usually for a limited time. Copyright may apply to a wide range of creative,
intellectual, or artistic forms, or "works". Copyright does not cover ideas
and information themselves, only the form or manner in which they are
expressed.
Industrial design rights
Intellectual property rights
Intellectual property rights include patents, copyright, industrial design
rights, trademarks, plant variety rights, trade dress, geographical
indications, and in some jurisdictions trade secrets. There are also more
specialized or derived varieties of sui generis exclusive rights, such as
circuit design rights (called mask work rights in the US)
and supplementary protection certificates for pharmaceutical products
(after expiry of a patent protecting them) and database
rights (in European law).
Patents
A patent is a form of right granted by the government to an inventor,
giving the owner the right to exclude others from making, using, selling,
offering to sell, and importing an invention for a limited period of time, in
exchange for the public disclosure of the invention. An invention is a
solution to a specific technological problem, which may be a product or
a process and generally has to fulfill three main requirements: it has to
be new, not obvious and there needs to be an industrial applicability. To
enrich the body of knowledge and stimulate innovation, it is an obligation
for patent owners to disclose valuable information about their inventions
to the public.
Copyright
A copyright gives the creator of an original work exclusive rights to it,
usually for a limited time. Copyright may apply to a wide range of creative,
intellectual, or artistic forms, or "works". Copyright does not cover ideas
and information themselves, only the form or manner in which they are
expressed.
Industrial design rights
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An industrial design right (sometimes called "design right" or design
patent) protects the visual design of objects that are not purely utilitarian.
An industrial design consists of the creation of a shape, configuration or
composition of pattern or color, or combination of pattern and color in
three-dimensional form containing aesthetic value. An industrial design
can be a two- or three-dimensional pattern used to produce a product,
industrial commodity or handicraft. Generally speaking, it is what makes
a product look appealing, and as such, it increases the commercial value
of goods.
Plant varieties
Plant breeders' rights or plant variety rights are the rights to commercially
use a new variety of a plant. The variety must amongst others be novel
and distinct and for registration the evaluation of propagating material of
the variety is considered.
Trademarks
A trademark is a recognizable sign, design or expression which
distinguishes products or services of a particular trader from the similar
products or services of other traders.
Trade dress
Trade dress is a legal term of art that generally refers to characteristics
of the visual and aesthetic appearance of a product or its packaging (or
even the design of a building) that signify the source of the product to
consumers.
Trade secrets
A trade secret is a formula, practice, process, design,
instrument, pattern, or compilation of information which is not generally
known or reasonably ascertainable, by which a business can obtain an
economic advantage over competitors and customers. There is no formal
An industrial design right (sometimes called "design right" or design
patent) protects the visual design of objects that are not purely utilitarian.
An industrial design consists of the creation of a shape, configuration or
composition of pattern or color, or combination of pattern and color in
three-dimensional form containing aesthetic value. An industrial design
can be a two- or three-dimensional pattern used to produce a product,
industrial commodity or handicraft. Generally speaking, it is what makes
a product look appealing, and as such, it increases the commercial value
of goods.
Plant varieties
Plant breeders' rights or plant variety rights are the rights to commercially
use a new variety of a plant. The variety must amongst others be novel
and distinct and for registration the evaluation of propagating material of
the variety is considered.
Trademarks
A trademark is a recognizable sign, design or expression which
distinguishes products or services of a particular trader from the similar
products or services of other traders.
Trade dress
Trade dress is a legal term of art that generally refers to characteristics
of the visual and aesthetic appearance of a product or its packaging (or
even the design of a building) that signify the source of the product to
consumers.
Trade secrets
A trade secret is a formula, practice, process, design,
instrument, pattern, or compilation of information which is not generally
known or reasonably ascertainable, by which a business can obtain an
economic advantage over competitors and customers. There is no formal
# Page / 6 #
government protection granted; each business must take measures to
guard its own trade secrets (e.g., Formula of its soft drinks is a trade
secret for Coca-Cola.)
Object of intellectual property law
The main purpose of intellectual property law is to encourage the creation
of a wide variety of intellectual goods for consumers. To achieve this, the
law gives people and businesses property rights to the information and
intellectual goods they create, usually for a limited period of time.
Because they can then profit from them, this gives economic incentive
for their creation. The intangible nature of intellectual property presents
difficulties when compared with traditional property like land or goods.
Unlike traditional property, intellectual property is indivisible – an
unlimited number of people can "consume" an intellectual good without
it being depleted. Additionally, investments in intellectual goods suffer
from problems of appropriation – while a landowner can surround their
land with a robust fence and hire armed guards to protect it, a producer
of information or an intellectual good can usually do very little to stop their
first buyer from replicating it and selling it at a lower price. Balancing
rights so that they are strong enough to encourage the creation of
information and intellectual goods but not so strong that they prevent
their wide use is the primary focus of modern intellectual property law.
By exchanging limited exclusive rights for disclosure of inventions and
creative works, society and the patentee/copyright owner mutually
benefit, and an incentive is created for inventors and authors to create
and disclose their work. Some commentators have noted that the
objective of intellectual property legislators and those who support its
implementation appears to be "absolute protection". "If some intellectual
property is desirable because it encourages innovation, they reason,
government protection granted; each business must take measures to
guard its own trade secrets (e.g., Formula of its soft drinks is a trade
secret for Coca-Cola.)
Object of intellectual property law
The main purpose of intellectual property law is to encourage the creation
of a wide variety of intellectual goods for consumers. To achieve this, the
law gives people and businesses property rights to the information and
intellectual goods they create, usually for a limited period of time.
Because they can then profit from them, this gives economic incentive
for their creation. The intangible nature of intellectual property presents
difficulties when compared with traditional property like land or goods.
Unlike traditional property, intellectual property is indivisible – an
unlimited number of people can "consume" an intellectual good without
it being depleted. Additionally, investments in intellectual goods suffer
from problems of appropriation – while a landowner can surround their
land with a robust fence and hire armed guards to protect it, a producer
of information or an intellectual good can usually do very little to stop their
first buyer from replicating it and selling it at a lower price. Balancing
rights so that they are strong enough to encourage the creation of
information and intellectual goods but not so strong that they prevent
their wide use is the primary focus of modern intellectual property law.
By exchanging limited exclusive rights for disclosure of inventions and
creative works, society and the patentee/copyright owner mutually
benefit, and an incentive is created for inventors and authors to create
and disclose their work. Some commentators have noted that the
objective of intellectual property legislators and those who support its
implementation appears to be "absolute protection". "If some intellectual
property is desirable because it encourages innovation, they reason,
# Page / 7 #
more is better. The thinking is that creators will not have sufficient
incentive to invent unless they are legally entitled to capture the full social
value of their inventions". This absolute protection or full value view treats
intellectual property as another type of "real" property, typically adopting
its law and rhetoric. Other recent developments in intellectual property
law, such as the America Invents Act, stress international harmonization.
Recently there has also been much debate over the desirability of using
intellectual property rights to protect cultural heritage, including intangible
ones, as well as over risks of co modification derived from this
possibility. The issue still remains open in legal scholarship.
Infringement, misappropriation, and enforcement
Violation of intellectual property rights, called "infringement" with respect
to patents, copyright, and trademarks, and "misappropriation" with
respect to trade secrets, may be a breach of civil law or criminal law,
depending on the type of intellectual property involved, jurisdiction, and
the nature of the action.
As of 2011 trade in counterfeit copyrighted and trademarked works was
a $600 billion industry worldwide and accounted for 5–7% of global trade.
Patent infringement
Patent infringement typically is caused by using or selling a patented
invention without permission from the patent holder. The scope of the
patented invention or the extent of protection is defined in the claims of
the granted patent. There is safe harbor in many jurisdictions to use a
patented invention for research. This safe harbor does not exist in the
US unless the research is done for purely philosophical purposes, or in
order to gather data in order to prepare an application for regulatory
approval of a drug. In general, patent infringement cases are handled
under civil law (e.g., in the United States) but several jurisdictions
more is better. The thinking is that creators will not have sufficient
incentive to invent unless they are legally entitled to capture the full social
value of their inventions". This absolute protection or full value view treats
intellectual property as another type of "real" property, typically adopting
its law and rhetoric. Other recent developments in intellectual property
law, such as the America Invents Act, stress international harmonization.
Recently there has also been much debate over the desirability of using
intellectual property rights to protect cultural heritage, including intangible
ones, as well as over risks of co modification derived from this
possibility. The issue still remains open in legal scholarship.
Infringement, misappropriation, and enforcement
Violation of intellectual property rights, called "infringement" with respect
to patents, copyright, and trademarks, and "misappropriation" with
respect to trade secrets, may be a breach of civil law or criminal law,
depending on the type of intellectual property involved, jurisdiction, and
the nature of the action.
As of 2011 trade in counterfeit copyrighted and trademarked works was
a $600 billion industry worldwide and accounted for 5–7% of global trade.
Patent infringement
Patent infringement typically is caused by using or selling a patented
invention without permission from the patent holder. The scope of the
patented invention or the extent of protection is defined in the claims of
the granted patent. There is safe harbor in many jurisdictions to use a
patented invention for research. This safe harbor does not exist in the
US unless the research is done for purely philosophical purposes, or in
order to gather data in order to prepare an application for regulatory
approval of a drug. In general, patent infringement cases are handled
under civil law (e.g., in the United States) but several jurisdictions
# Page / 8 #
incorporate infringement in criminal law also (for example, Argentina,
China, France, Japan, Russia, South Korea).
Copyright infringement
Copyright infringement is reproducing, distributing, displaying or
performing a work, or to make derivative works, without permission from
the copyright holder, which is typically a publisher or other business
representing or assigned by the work's creator. It is often called
"piracy". While copyright is created the instant a work is fixed, generally
the copyright holder can only get money damages if the owner registers
the copyright. Enforcement of copyright is generally the responsibility of
the copyright holder. The ACTA trade agreement, signed in May 2011 by
the United States, Japan, Switzerland, and the EU, and which has not
entered into force, requires that its parties add criminal penalties,
including incarceration and fines, for copyright and trademark
infringement, and obligated the parties to active police for
infringement. There are limitations and exceptions to copyright, allowing
limited use of copyrighted works, which does not constitute infringement.
Examples of such doctrines are the fair use and fair dealing doctrine.
Trademark infringement
Trademark infringement occurs when one party uses a trademark that is
identical or confusingly similar to a trademark owned by another party, in
relation to products or services which are identical or similar to the
products or services of the other party. In many countries, a trademark
receives protection without registration, but registering a trademark
provides legal advantages for enforcement. Infringement can be
addressed by civil litigation and, in several jurisdictions, under criminal
law.
Trade secret misappropriation
incorporate infringement in criminal law also (for example, Argentina,
China, France, Japan, Russia, South Korea).
Copyright infringement
Copyright infringement is reproducing, distributing, displaying or
performing a work, or to make derivative works, without permission from
the copyright holder, which is typically a publisher or other business
representing or assigned by the work's creator. It is often called
"piracy". While copyright is created the instant a work is fixed, generally
the copyright holder can only get money damages if the owner registers
the copyright. Enforcement of copyright is generally the responsibility of
the copyright holder. The ACTA trade agreement, signed in May 2011 by
the United States, Japan, Switzerland, and the EU, and which has not
entered into force, requires that its parties add criminal penalties,
including incarceration and fines, for copyright and trademark
infringement, and obligated the parties to active police for
infringement. There are limitations and exceptions to copyright, allowing
limited use of copyrighted works, which does not constitute infringement.
Examples of such doctrines are the fair use and fair dealing doctrine.
Trademark infringement
Trademark infringement occurs when one party uses a trademark that is
identical or confusingly similar to a trademark owned by another party, in
relation to products or services which are identical or similar to the
products or services of the other party. In many countries, a trademark
receives protection without registration, but registering a trademark
provides legal advantages for enforcement. Infringement can be
addressed by civil litigation and, in several jurisdictions, under criminal
law.
Trade secret misappropriation
# Page / 9 #
Trade secret misappropriation is different from violations of other
intellectual property laws, since by definition trade secrets are secret,
while patents and registered copyrights and trademarks are publicly
available. In the United States, trade secrets are protected under state
law, and states have nearly universally adopted the Uniform Trade
Secrets Act. The United States also has federal law in the form of
the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which
makes the theft or misappropriation of a trade secret a federal crime. This
law contains two provisions criminalizing two sorts of activity. The first, 18
U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign
powers. The second, 18 U.S.C. § 1832, criminalizes their theft for
commercial or economic purposes. (The statutory penalties are different
for the two offenses.) In Commonwealth common law jurisdictions,
confidentiality and trade secrets are regarded as an equitable right rather
than a property right but penalties for theft are roughly the same as in the
United States.
Trade secret misappropriation is different from violations of other
intellectual property laws, since by definition trade secrets are secret,
while patents and registered copyrights and trademarks are publicly
available. In the United States, trade secrets are protected under state
law, and states have nearly universally adopted the Uniform Trade
Secrets Act. The United States also has federal law in the form of
the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which
makes the theft or misappropriation of a trade secret a federal crime. This
law contains two provisions criminalizing two sorts of activity. The first, 18
U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign
powers. The second, 18 U.S.C. § 1832, criminalizes their theft for
commercial or economic purposes. (The statutory penalties are different
for the two offenses.) In Commonwealth common law jurisdictions,
confidentiality and trade secrets are regarded as an equitable right rather
than a property right but penalties for theft are roughly the same as in the
United States.
# Page / 1 #
IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS
NIHAR RANJAN MISHRA PRINT
Intellectual property rights are accepted all over the world due to some
important reasons. They were essentially recognized for the acceptations
of these rights are:-
● Provides incentive to the individual for new creations.
● Providing due recognition to the creators and inventors.
● Ensuring the material reward for intellectual property.
● Ensuring the availability of the original products.
● For economic growth and advancement in technology sector
protection of Intellectual property protection is important.
● They are benefited for the growth of the business in the field of
technology.
INTELLECTUAL PROPERTY LAW Comprises of the following
Laws:-
● The Laws relating to Trade Marks / Brands (Trade Marks Act, 1999),
Property Marks
● The Laws relating to Copyright (Copyright Act, 1957) Artistic Work,
Literary Work, Audio Video Records and Software
● The Laws relating to Industrial Designs (Designs Act, 2000)
● The Laws relating to Patents (The Patent Act, 1970)
● The Laws relating to Geographical Indications. The geographical
Indications of (Registration and Protection) Act, 1999
● The Laws relating to Internet (Information Technology Act, 2000)
INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
An intellectual property infringement is the infringement or violation of an
intellectual property right.
IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS
NIHAR RANJAN MISHRA PRINT
Intellectual property rights are accepted all over the world due to some
important reasons. They were essentially recognized for the acceptations
of these rights are:-
● Provides incentive to the individual for new creations.
● Providing due recognition to the creators and inventors.
● Ensuring the material reward for intellectual property.
● Ensuring the availability of the original products.
● For economic growth and advancement in technology sector
protection of Intellectual property protection is important.
● They are benefited for the growth of the business in the field of
technology.
INTELLECTUAL PROPERTY LAW Comprises of the following
Laws:-
● The Laws relating to Trade Marks / Brands (Trade Marks Act, 1999),
Property Marks
● The Laws relating to Copyright (Copyright Act, 1957) Artistic Work,
Literary Work, Audio Video Records and Software
● The Laws relating to Industrial Designs (Designs Act, 2000)
● The Laws relating to Patents (The Patent Act, 1970)
● The Laws relating to Geographical Indications. The geographical
Indications of (Registration and Protection) Act, 1999
● The Laws relating to Internet (Information Technology Act, 2000)
INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
An intellectual property infringement is the infringement or violation of an
intellectual property right.
# Page / 2 #
Copyright infringement-
Copyright-It is a type of protection which is given to the authors of original
works including literary, dramatic, and musical and certain other
intellectual works, which may be published and unpublished.
Copyright infringement (or copyright violation) is the use of material
unauthorised that is covered by copyright law, that violates one of the
copyright owner's exclusive rights, such as the right to perform the
copyrighted work. It is also known as copyright violation.
Patent infringement-
Patent-It is issued by United States Patent and Trademark Office. A
patent is the right to the inventor for an invention.
Patent infringement prohibition act with respect to a patented invention
without permission from the patent holder. By means of the licence
permission may be granted. It is also known as patent violation.
Trademark - A trademark gives separate identity to the goods and
services to make them distinguish from the others. It protects words,
names, symbols, sounds. Trademarks can be renewed for forever or as
long as they are going to be used. There is no need for registration of a
trademark in the U.S.
Trademark infringement is a violation of the exclusive rights attaching to
a trademark without the authorization of the trademark owner or any
licensees. Infringement may occur when one party, the "infringer", uses
a trademark which is identical to a trademark owned by another party, in
relation to products or services which are identical or similar to the
products or services which the registration covers. An owner of a
trademark may commence legal proceedings against a party which
infringes its registration. It is also known as trademark violation.
Copyright infringement-
Copyright-It is a type of protection which is given to the authors of original
works including literary, dramatic, and musical and certain other
intellectual works, which may be published and unpublished.
Copyright infringement (or copyright violation) is the use of material
unauthorised that is covered by copyright law, that violates one of the
copyright owner's exclusive rights, such as the right to perform the
copyrighted work. It is also known as copyright violation.
Patent infringement-
Patent-It is issued by United States Patent and Trademark Office. A
patent is the right to the inventor for an invention.
Patent infringement prohibition act with respect to a patented invention
without permission from the patent holder. By means of the licence
permission may be granted. It is also known as patent violation.
Trademark - A trademark gives separate identity to the goods and
services to make them distinguish from the others. It protects words,
names, symbols, sounds. Trademarks can be renewed for forever or as
long as they are going to be used. There is no need for registration of a
trademark in the U.S.
Trademark infringement is a violation of the exclusive rights attaching to
a trademark without the authorization of the trademark owner or any
licensees. Infringement may occur when one party, the "infringer", uses
a trademark which is identical to a trademark owned by another party, in
relation to products or services which are identical or similar to the
products or services which the registration covers. An owner of a
trademark may commence legal proceedings against a party which
infringes its registration. It is also known as trademark violation.
# Page / 3 #
Objectives-
● To know the reasons infringement of the intellectual property rights.
● To know why to care about IPR?
● What the protection measures and provisional measures?
● Case related to Intellectual Property Right Infringement.
Economic Effect of Intellectual Property Right Infringement
There is a great effect of Intellectual Property Right Infringement .U.S
companies suffer losses in recent years because their Intellectual
Property Rights (trademarks, copyrights and patents) are not properly
protected abroad. International Trade Commission data is collected from
244 US firms and the data is used to study economic effect of foreign
infringement of US intellectual property rights in five sectors of industry.
The profit and losses of US suppliers is much as compared to total profits,
this implies that the losses are greater than the profits earned by
suppliers who are infringing on rights, but that the losses may be least
than the benefits to infringers and consumers.
From Research it is pointed out that research results suggest that
Lessing profits lost to infringers by one percent would require significant
increases in identification and enforcement costs.
CAUSES OF INFRINGEM ENT OF INTELLECTUAL PROPERTY
RIGHTS INFRINGEMENT
● Too much cost of Research and development.
● Globalisation
● Litigation delays in implementing ip rights and award of damages
● Software piracy
WHY CARE ABOUT IPR -
Objectives-
● To know the reasons infringement of the intellectual property rights.
● To know why to care about IPR?
● What the protection measures and provisional measures?
● Case related to Intellectual Property Right Infringement.
Economic Effect of Intellectual Property Right Infringement
There is a great effect of Intellectual Property Right Infringement .U.S
companies suffer losses in recent years because their Intellectual
Property Rights (trademarks, copyrights and patents) are not properly
protected abroad. International Trade Commission data is collected from
244 US firms and the data is used to study economic effect of foreign
infringement of US intellectual property rights in five sectors of industry.
The profit and losses of US suppliers is much as compared to total profits,
this implies that the losses are greater than the profits earned by
suppliers who are infringing on rights, but that the losses may be least
than the benefits to infringers and consumers.
From Research it is pointed out that research results suggest that
Lessing profits lost to infringers by one percent would require significant
increases in identification and enforcement costs.
CAUSES OF INFRINGEM ENT OF INTELLECTUAL PROPERTY
RIGHTS INFRINGEMENT
● Too much cost of Research and development.
● Globalisation
● Litigation delays in implementing ip rights and award of damages
● Software piracy
WHY CARE ABOUT IPR -
# Page / 4 #
● Patents are benefit to the owner of the IP and it add importance to
industrial as well as business concerns , discoveries and provide
incentives for private sector investment into their development. They
all should have separate Research and development center.
● Globalization and advancement of technology has played an
important role in intellectual property protection for small and
medium sized enterprises. The intangible nature of intellectual
property creates challenges for those businesses, to protect their
inventions, brands, and business in foreign markets.
● Intellectual property protection is necessary to the success of
biotechnology companies. For these companies, the patent system
serves to encourage them for the development of new medicines and
diagnostics for treatment and monitoring diseases, and agricultural
products.
HOW TO OBTAIN INFORMATION ABOUT INFRINGEMENT OF
TRADE MARK / COPYRIGHT
The best way to get information about the piracy of trade mark / copyright
is companies marketing strategies.
The best alternative is engagement of detective agencies on contractual
basis, which have their own other network.
By surveys in major metropolitan cities of India, the information can be
obtained about the infringement / piracy of goods and these surveys will
lead to and result in the identification of manufacturing, go downs,
distribution network.
JUDICIAL SYSTEM IN INDIA
The Indian judicial system is independent from executive / government
and it is creation of Constitution of India. It is mandatory to obey the
● Patents are benefit to the owner of the IP and it add importance to
industrial as well as business concerns , discoveries and provide
incentives for private sector investment into their development. They
all should have separate Research and development center.
● Globalization and advancement of technology has played an
important role in intellectual property protection for small and
medium sized enterprises. The intangible nature of intellectual
property creates challenges for those businesses, to protect their
inventions, brands, and business in foreign markets.
● Intellectual property protection is necessary to the success of
biotechnology companies. For these companies, the patent system
serves to encourage them for the development of new medicines and
diagnostics for treatment and monitoring diseases, and agricultural
products.
HOW TO OBTAIN INFORMATION ABOUT INFRINGEMENT OF
TRADE MARK / COPYRIGHT
The best way to get information about the piracy of trade mark / copyright
is companies marketing strategies.
The best alternative is engagement of detective agencies on contractual
basis, which have their own other network.
By surveys in major metropolitan cities of India, the information can be
obtained about the infringement / piracy of goods and these surveys will
lead to and result in the identification of manufacturing, go downs,
distribution network.
JUDICIAL SYSTEM IN INDIA
The Indian judicial system is independent from executive / government
and it is creation of Constitution of India. It is mandatory to obey the
# Page / 5 #
orders of the Courts in India by
Central & State Governments and any non-compliance of the order of
the courts are taken as very serious and that may result in the fine and /
or imprisonment. In India High Court and Supreme Court judgments has
the force of the law. Even in the world the Indian Judicial System is one
of the best legal systems which have codified laws and established
procedures.
REMEDIES AVAILABLE UNDER INDIAN LAWS
CIVIL REMEDIES
Injunction/ stay against the use of trade
Damages can be claimed
Accounts and handing over of profits
For custody there is appointment of local commissioner/infringing
material sealing.
Under order 39 rule 1 & 2 of the CPC the application is filed.
CRIMINAL REMEDIES
Before the chief judicial magistrate the complaint is filed.
Evidence of the infringement of the IPR.
Under sec. 93/94 the application is filed.
Search of infringing material is done by Police as per orders and
directions given by the court.
Lodging of fir and search under section. 156 of the criminal procedure
code, 1973.
JURISDICTION FOR FILING CIVIL / CRIMINAL LITIGATION
Civil Cases- The jurisdiction for filing in a civil suit will include given facts
and fulfillment of given conditions:-
From where the cause of action has occrued?
orders of the Courts in India by
Central & State Governments and any non-compliance of the order of
the courts are taken as very serious and that may result in the fine and /
or imprisonment. In India High Court and Supreme Court judgments has
the force of the law. Even in the world the Indian Judicial System is one
of the best legal systems which have codified laws and established
procedures.
REMEDIES AVAILABLE UNDER INDIAN LAWS
CIVIL REMEDIES
Injunction/ stay against the use of trade
Damages can be claimed
Accounts and handing over of profits
For custody there is appointment of local commissioner/infringing
material sealing.
Under order 39 rule 1 & 2 of the CPC the application is filed.
CRIMINAL REMEDIES
Before the chief judicial magistrate the complaint is filed.
Evidence of the infringement of the IPR.
Under sec. 93/94 the application is filed.
Search of infringing material is done by Police as per orders and
directions given by the court.
Lodging of fir and search under section. 156 of the criminal procedure
code, 1973.
JURISDICTION FOR FILING CIVIL / CRIMINAL LITIGATION
Civil Cases- The jurisdiction for filing in a civil suit will include given facts
and fulfillment of given conditions:-
From where the cause of action has occrued?
# Page / 6 #
Where the violations of IPRs are taking place?
Where the defendants work for gain?
Trade Marks Act, 1999, it provides an exception, to registered trade mark
and the registered Trade Mark owner can file a case with in court, from
where the holder is carrying its business.
The jurisdiction for filing a case depends on the activities of the
defendants.
There is no need to file a suit in different courts separately.
PROTECTION AGAINST INTELLECTUAL PROPERTY RIGHTS
INFRINGEMENT
The infringement of intellectual property rights (IPRs) are by
administrative procedures and legal proceedings. In civil liabilities, the
infringer may ordered to stop the violated activities, eradicate the
damage done, make public apologies and compensate for all the
damages. In administrative measures, they include warnings in order to
stop the violating activities, fines, and compensation for damages made.
The interested parties go for mediation, when there is IPR infringement
dispute arises. If mediation failed, or interested parties refused to abide
by the outcome of mediation, legal proceedings may be instituted with
people's court. The interested parties may also request the relevant
administrative authorities for actions.
LEGAL PROCEEDINGS
When an IPR infringement dispute arises, the infringed party may
institute legal proceedings directly with the people's court at the place
where infringing activity takes place...
If an interested party finds that due to emergency or by any delay in stop
the infringing activities may cause damages to his/her rights, he may,
Where the violations of IPRs are taking place?
Where the defendants work for gain?
Trade Marks Act, 1999, it provides an exception, to registered trade mark
and the registered Trade Mark owner can file a case with in court, from
where the holder is carrying its business.
The jurisdiction for filing a case depends on the activities of the
defendants.
There is no need to file a suit in different courts separately.
PROTECTION AGAINST INTELLECTUAL PROPERTY RIGHTS
INFRINGEMENT
The infringement of intellectual property rights (IPRs) are by
administrative procedures and legal proceedings. In civil liabilities, the
infringer may ordered to stop the violated activities, eradicate the
damage done, make public apologies and compensate for all the
damages. In administrative measures, they include warnings in order to
stop the violating activities, fines, and compensation for damages made.
The interested parties go for mediation, when there is IPR infringement
dispute arises. If mediation failed, or interested parties refused to abide
by the outcome of mediation, legal proceedings may be instituted with
people's court. The interested parties may also request the relevant
administrative authorities for actions.
LEGAL PROCEEDINGS
When an IPR infringement dispute arises, the infringed party may
institute legal proceedings directly with the people's court at the place
where infringing activity takes place...
If an interested party finds that due to emergency or by any delay in stop
the infringing activities may cause damages to his/her rights, he may,
# Page / 7 #
before instituting legal proceedings, request the people's court to freeze
the assets of the infringer.
The people's court will see to it that the infringer, if the infringer is
convicted, he will be made to bear civil liabilities for the infringing act. The
infringer will be prosecuted for his criminal liabilities where the case is so
serious to constitute a crime.
ADMINISTRATIVE PROCEDURES
(a) Information and Proof to be Submitted
When infringement of IPR dispute rises, the interested may request the
administrative authorities and above at the place of the infringer's
domicile In order to make the request to the administration authorities,
the interested party should have to submit a written proof of his right and
evidence of the infringing act.
(b) Processing by Administrative Authorities
It is the duty of the administrative authorities to handle the dispute and
they have to make decision whether the complaint will be processed
within 15 days upon receipt of the request and they have to tell their
decision to applicant. If the decision is negative, a written will be given to
the applicant and if the decision given by the administration authorities is
negative than the applicant will given an explanation in written form within
7 days.
(c) Calculation of Compensation
On the request of the applicant, the competent administrative may order
the infringer to pay for damages?
For infringing of copyright, the compensation amount is calculated
according to the direct damages caused by the infringement and
before instituting legal proceedings, request the people's court to freeze
the assets of the infringer.
The people's court will see to it that the infringer, if the infringer is
convicted, he will be made to bear civil liabilities for the infringing act. The
infringer will be prosecuted for his criminal liabilities where the case is so
serious to constitute a crime.
ADMINISTRATIVE PROCEDURES
(a) Information and Proof to be Submitted
When infringement of IPR dispute rises, the interested may request the
administrative authorities and above at the place of the infringer's
domicile In order to make the request to the administration authorities,
the interested party should have to submit a written proof of his right and
evidence of the infringing act.
(b) Processing by Administrative Authorities
It is the duty of the administrative authorities to handle the dispute and
they have to make decision whether the complaint will be processed
within 15 days upon receipt of the request and they have to tell their
decision to applicant. If the decision is negative, a written will be given to
the applicant and if the decision given by the administration authorities is
negative than the applicant will given an explanation in written form within
7 days.
(c) Calculation of Compensation
On the request of the applicant, the competent administrative may order
the infringer to pay for damages?
For infringing of copyright, the compensation amount is calculated
according to the direct damages caused by the infringement and
# Page / 8 #
reasonable fees incurred by the copyright holder in investigating and
stopping the infringing act.
For infringing of trademark, the compensation amount is calculated on
the basis of profits gained by the infringer through the infringement during
the infringement period or the damages suffered by the infringed party
during the infringement period.
For infringing of patent, the amount of compensation is calculated
according to the damages suffered by the patentee or the profit which is
gained by the infringer through the infringement. Where it is difficult to
determine the damages suffered by the patentee. It is also difficult to
calculate that how much profit is earned by the infringer, royalty amount
of patent may used as per calculation.
(d) Dissatisfaction with Administrative Punishment Decisions
Instituting administrative proceedings
If the interested party is not satisfied with the punishment made by the
administrative authorities than within 3 months from the receipt of the
notification of decision, and apply to the local government or
administrative securities at higher level for reconsideration of the
decision.
Instituting administrative reconsideration
Within 10 days, the authorities should have to decide whether to handle
the case or not. If the interested party is satisfied than within 2 months
for reconsideration, a decision should be made on that basis. If the
interested party is not satisfied with the decision on reconsideration than
within the 15 days after the receivable of the notification of the decision,
institute administrative proceedings with the people's court.
reasonable fees incurred by the copyright holder in investigating and
stopping the infringing act.
For infringing of trademark, the compensation amount is calculated on
the basis of profits gained by the infringer through the infringement during
the infringement period or the damages suffered by the infringed party
during the infringement period.
For infringing of patent, the amount of compensation is calculated
according to the damages suffered by the patentee or the profit which is
gained by the infringer through the infringement. Where it is difficult to
determine the damages suffered by the patentee. It is also difficult to
calculate that how much profit is earned by the infringer, royalty amount
of patent may used as per calculation.
(d) Dissatisfaction with Administrative Punishment Decisions
Instituting administrative proceedings
If the interested party is not satisfied with the punishment made by the
administrative authorities than within 3 months from the receipt of the
notification of decision, and apply to the local government or
administrative securities at higher level for reconsideration of the
decision.
Instituting administrative reconsideration
Within 10 days, the authorities should have to decide whether to handle
the case or not. If the interested party is satisfied than within 2 months
for reconsideration, a decision should be made on that basis. If the
interested party is not satisfied with the decision on reconsideration than
within the 15 days after the receivable of the notification of the decision,
institute administrative proceedings with the people's court.
# Page / 9 #
EFECTIVENESS OF LEGAL ACTION AGAINST INFRINGEMENT &
PIRACY
It is practically very difficult to completely prevent piracy / infringement /
violation of intellectual property rights as we know India is a very large
country in geographical terms and densely populated country. There are
own advantages and limitations of civil and criminal legal actions. Mostly
piracy in India takes place in small scale industries, unorganized sector
A separate suit has to be filed against each and every company / firm /
individual in civil suits, which are filed against infringements, as the
infringement by each pirate will amount a new cause of action, separate
suits have to be filed against each of them. As compare to criminal
remedies the civil remedies are easier.
Due to publicity, campaigning the effectiveness of criminal remedies is
more as compared to civil remedies. Any criminal action / prosecution is
treated as a social stigma in India which leads to condemnation by the
society.
PROVISIONAL MEASURES
1. The judicial authorities shall have the authority to order promptly and
effectively provisional measures:
a. to prevent an infringement of intellectual property rights from
occurring, and in order to prevent the entry into the channels of
commerce in their jurisdiction of goods, including imported
goods immediately after customs clearance
b. To preserve supportive evidence in regard to the IPR
infringement.
2. It is the right provided to the judicial the applicant has to give
supportive evidences in order to satisfy themselves, and to order the
EFECTIVENESS OF LEGAL ACTION AGAINST INFRINGEMENT &
PIRACY
It is practically very difficult to completely prevent piracy / infringement /
violation of intellectual property rights as we know India is a very large
country in geographical terms and densely populated country. There are
own advantages and limitations of civil and criminal legal actions. Mostly
piracy in India takes place in small scale industries, unorganized sector
A separate suit has to be filed against each and every company / firm /
individual in civil suits, which are filed against infringements, as the
infringement by each pirate will amount a new cause of action, separate
suits have to be filed against each of them. As compare to criminal
remedies the civil remedies are easier.
Due to publicity, campaigning the effectiveness of criminal remedies is
more as compared to civil remedies. Any criminal action / prosecution is
treated as a social stigma in India which leads to condemnation by the
society.
PROVISIONAL MEASURES
1. The judicial authorities shall have the authority to order promptly and
effectively provisional measures:
a. to prevent an infringement of intellectual property rights from
occurring, and in order to prevent the entry into the channels of
commerce in their jurisdiction of goods, including imported
goods immediately after customs clearance
b. To preserve supportive evidence in regard to the IPR
infringement.
2. It is the right provided to the judicial the applicant has to give
supportive evidences in order to satisfy themselves, and to order the
# Page / 10 #
applicant to provide a security or equivalent assurance which is
sufficient to protect the defendant and to prevent abuse.
3. The applicant needs to supply other necessary information for the
identification of the goods concerned by the authority.
4. If judicial authorities found that there has no infringement or there is
no any threat of infringement of an intellectual property right, the
judicial authorities has right that upon request of the defendant the
applicant should have to provide compensation for any injury,
damages to the defendant.
REGISTRATION OF IPR IS NECESSARY OR NOT
Not, necessary in the case of
● Trade Marks
● Copyrights
Yes, necessary in the case of
● Patent
● Industrial Design
● Geographical Indication
REGISTRATION OF IPR CAN BE CANCELLED OR REVOKED?
Yes
● If Fraud
● If there is Misrepresentation
● Against the rights of opponent
● If it is registered by the registrar by error.
● Registration is prohibit under some law
Registration against public policy
Conclusion
applicant to provide a security or equivalent assurance which is
sufficient to protect the defendant and to prevent abuse.
3. The applicant needs to supply other necessary information for the
identification of the goods concerned by the authority.
4. If judicial authorities found that there has no infringement or there is
no any threat of infringement of an intellectual property right, the
judicial authorities has right that upon request of the defendant the
applicant should have to provide compensation for any injury,
damages to the defendant.
REGISTRATION OF IPR IS NECESSARY OR NOT
Not, necessary in the case of
● Trade Marks
● Copyrights
Yes, necessary in the case of
● Patent
● Industrial Design
● Geographical Indication
REGISTRATION OF IPR CAN BE CANCELLED OR REVOKED?
Yes
● If Fraud
● If there is Misrepresentation
● Against the rights of opponent
● If it is registered by the registrar by error.
● Registration is prohibit under some law
Registration against public policy
Conclusion
# Page / 11 #
The Intellectual Property Rights (IPR) has social, economic,
technological and political impacts. Rapid technology, globalisation and
fierce competitions leading to protect the innovations from violations by
the help of IPR such as patents, trademarks, service marks, industrial
design registration, copy rights and trade secrets. But still there is
infringement of Intellectual Property Rights. The Government is also
taking measures to prevent them. There are laws regarding the
prevention of Intellectual Property Rights Infringement.
The Intellectual Property Rights (IPR) has social, economic,
technological and political impacts. Rapid technology, globalisation and
fierce competitions leading to protect the innovations from violations by
the help of IPR such as patents, trademarks, service marks, industrial
design registration, copy rights and trade secrets. But still there is
infringement of Intellectual Property Rights. The Government is also
taking measures to prevent them. There are laws regarding the
prevention of Intellectual Property Rights Infringement.
World Intellectual Property Organization
NIHAR RANJAN MISHRA
The World Intellectual Property Organization (WIPO) is one of the 15
specialized agencies of the United Nations (UN). WIPO was created in 1967 "to
encourage creative activity, to promote the protection of intellectual
property throughout the world".
WIPO currently has 191 member states, administers 26
international treaties, and is headquartered in Geneva, Switzerland. The
current Director-General of WIPO is Francis Gurry, who took office on 1 October
2008. 188 of the UN member states as well as the Cook Islands, Holy
See and Niue are members of WIPO. Non -members are the states
of Federated States of Micronesia, Nauru, Palau, Solomon Islands and South
Sudan. Palestine has permanent observer status.
History
The predecessor to WIPO was the United International Bureaux for the
Protection of Intellectual Property (Bureaux Internationaux Réunis pour la
Protection de la Propriété Intellectuelle, with the French acronym for "BIRPI"),
which had been established in 1893 to administer the Berne Convention for the
Protection of Literary and Artistic Worksand the Paris Convention for the
Protection of Industrial Property.
WIPO was formally created by the Convention Establishing the World
Intellectual Property Organization, which entered into force on 26 April
1970.
[10]
Under Article 3 of this Convention, WIPO seeks to "promote the
protection of intellectual property throughout the world". WIPO became a
specialized agency of the UN in 1974. The Agreement between the United
Nations and the World Intellectual Property Organization notes in Article 1 that
WIPO is responsible
NIHAR RANJAN MISHRA
The World Intellectual Property Organization (WIPO) is one of the 15
specialized agencies of the United Nations (UN). WIPO was created in 1967 "to
encourage creative activity, to promote the protection of intellectual
property throughout the world".
WIPO currently has 191 member states, administers 26
international treaties, and is headquartered in Geneva, Switzerland. The
current Director-General of WIPO is Francis Gurry, who took office on 1 October
2008. 188 of the UN member states as well as the Cook Islands, Holy
See and Niue are members of WIPO. Non -members are the states
of Federated States of Micronesia, Nauru, Palau, Solomon Islands and South
Sudan. Palestine has permanent observer status.
History
The predecessor to WIPO was the United International Bureaux for the
Protection of Intellectual Property (Bureaux Internationaux Réunis pour la
Protection de la Propriété Intellectuelle, with the French acronym for "BIRPI"),
which had been established in 1893 to administer the Berne Convention for the
Protection of Literary and Artistic Worksand the Paris Convention for the
Protection of Industrial Property.
WIPO was formally created by the Convention Establishing the World
Intellectual Property Organization, which entered into force on 26 April
1970.
[10]
Under Article 3 of this Convention, WIPO seeks to "promote the
protection of intellectual property throughout the world". WIPO became a
specialized agency of the UN in 1974. The Agreement between the United
Nations and the World Intellectual Property Organization notes in Article 1 that
WIPO is responsible
for promoting creative intellectual activity and for facilitating the transfer of
technology related to industrial property to the developing countries in order to
accelerate economic, social and cultural development, subject to the
competence and responsibilities of the United Nations and its organs,
particularly the United Nations Conference on Trade and Development, the
United Nations Development Programme and the United Nations Industrial
Development Organization, as well as of the United Nations Educational,
Scientific and Cultural Organization and of other agencies within the United
Nations system.
The Agreement marked a transition for WIPO from the mandate it inherited in
1967 from BIRPI, to promote the protection of intellectual property, to one that
involved the more complex task of promoting technology transfer and economic
development.
Unlike other branches of the United Nations, WIPO has significant financial
resources independent of the contributions from its Member States. In 2006,
over 90 percent of its income of just over CHF 250 million was expected to be
generated from the collection of fees by the International Bureau (IB) under the
intellectual property application and registration systems which it administers
(the Patent Cooperation Treaty, the Madrid system for trademarks and
the Hague system for industrial designs).
Development agenda
In October 2004, WIPO agreed to adopt a proposal offered by Argentina and
Brazil, the "Proposal for the Establishment of a Development Agenda for
WIPO"—from the Geneva Declaration on the Future of the World Intellectual
Property Organization. This proposal was well supported by developing
countries. The agreed "WIPO Development Agenda" (composed of over 45
recommendations) was the culmination of a long process of transformation for
the organization from one that had historically been primarily aimed at
protecting the interests of rightholders, to one that has increasingly incorporated
the interests of other stakeholders in the international intellectual property
technology related to industrial property to the developing countries in order to
accelerate economic, social and cultural development, subject to the
competence and responsibilities of the United Nations and its organs,
particularly the United Nations Conference on Trade and Development, the
United Nations Development Programme and the United Nations Industrial
Development Organization, as well as of the United Nations Educational,
Scientific and Cultural Organization and of other agencies within the United
Nations system.
The Agreement marked a transition for WIPO from the mandate it inherited in
1967 from BIRPI, to promote the protection of intellectual property, to one that
involved the more complex task of promoting technology transfer and economic
development.
Unlike other branches of the United Nations, WIPO has significant financial
resources independent of the contributions from its Member States. In 2006,
over 90 percent of its income of just over CHF 250 million was expected to be
generated from the collection of fees by the International Bureau (IB) under the
intellectual property application and registration systems which it administers
(the Patent Cooperation Treaty, the Madrid system for trademarks and
the Hague system for industrial designs).
Development agenda
In October 2004, WIPO agreed to adopt a proposal offered by Argentina and
Brazil, the "Proposal for the Establishment of a Development Agenda for
WIPO"—from the Geneva Declaration on the Future of the World Intellectual
Property Organization. This proposal was well supported by developing
countries. The agreed "WIPO Development Agenda" (composed of over 45
recommendations) was the culmination of a long process of transformation for
the organization from one that had historically been primarily aimed at
protecting the interests of rightholders, to one that has increasingly incorporated
the interests of other stakeholders in the international intellectual property
system as well as integrating into the broader corpus of international law on
human rights, environment and economic cooperation.
A number of civil society bodies have been working on a draft Access to
Knowledge (A2K) treaty which they would like to see introduced.
In December 2011, WIPO published its first World Intellectual Property Report
on the Changing Face of Innovation, the first such report of the new Office of
the Chief Economist. WIPO is also a co-publisher of the Global Innovation
Index.
Information network
WIPO has established WIPOnet, a global information network. The project
seeks to link over 300 intellectual property offices (IP offices) in all WIPO
Member States. In addition to providing a means of secure communication
among all connected parties, WIPOnet is the foundation for WIPO's intellectual
property services.
Economics and Statistics Division
WIPO's Economics and Statistics Division gathers data on intellectual property
activity worldwide and publishes statistics to the public. The Division also
conducts economic analysis on how government IP and innovation policies
affect economic performance.
human rights, environment and economic cooperation.
A number of civil society bodies have been working on a draft Access to
Knowledge (A2K) treaty which they would like to see introduced.
In December 2011, WIPO published its first World Intellectual Property Report
on the Changing Face of Innovation, the first such report of the new Office of
the Chief Economist. WIPO is also a co-publisher of the Global Innovation
Index.
Information network
WIPO has established WIPOnet, a global information network. The project
seeks to link over 300 intellectual property offices (IP offices) in all WIPO
Member States. In addition to providing a means of secure communication
among all connected parties, WIPOnet is the foundation for WIPO's intellectual
property services.
Economics and Statistics Division
WIPO's Economics and Statistics Division gathers data on intellectual property
activity worldwide and publishes statistics to the public. The Division also
conducts economic analysis on how government IP and innovation policies
affect economic performance.
RECENT DEVELOPMENTS IN INTELLECTUAL PROPERTY LAWS
IN INDIA
NIHAR RANJAN MISHRA
The Government of India undertook a series of steps, to conform India IP
legislation to acceptable international standards.
Besides to the most recent developments, in order to bring progressive
changes towards a free market society, rapid liberalization
of international trade practices and demonstrating its commitments to the
WTO under the Trade Related Intellectual Property Rights Agreement
(TRIPS), the Government of India undertook a series of steps, to conform
India IP legislation to acceptable international standards. The regulations
relating to all forms of IP have been amended or reissued in recent years,
mainly in response to India’s accession to the WTO. Here are some of
these developments in IP legislation in India.
Trademark law brought at par with international practices
To bring Indian trademarks law in line with international practices
and to ensure implementation of India's commitments under the
TRIPS Agreement, India replaced the Trade and Merchandise
Marks Act, 1958, with the Trade Marks Act, 1999. Some changes
under the 1999 Act are as follows:
* Service marks, for the first time, made protectable through
registration.
* The definition of "trade mark" now includes graphic
representations, shapes, packagings and combinations of colours,
thereby widening IPR protection.
* The procedure for registration of trademarks expedited by
removing the earlier system of Part A and B registration. In addition,
only a single application need now be filed for registration of a
trademark in different classes. The 1999 Act also provides for the
IN INDIA
NIHAR RANJAN MISHRA
The Government of India undertook a series of steps, to conform India IP
legislation to acceptable international standards.
Besides to the most recent developments, in order to bring progressive
changes towards a free market society, rapid liberalization
of international trade practices and demonstrating its commitments to the
WTO under the Trade Related Intellectual Property Rights Agreement
(TRIPS), the Government of India undertook a series of steps, to conform
India IP legislation to acceptable international standards. The regulations
relating to all forms of IP have been amended or reissued in recent years,
mainly in response to India’s accession to the WTO. Here are some of
these developments in IP legislation in India.
Trademark law brought at par with international practices
To bring Indian trademarks law in line with international practices
and to ensure implementation of India's commitments under the
TRIPS Agreement, India replaced the Trade and Merchandise
Marks Act, 1958, with the Trade Marks Act, 1999. Some changes
under the 1999 Act are as follows:
* Service marks, for the first time, made protectable through
registration.
* The definition of "trade mark" now includes graphic
representations, shapes, packagings and combinations of colours,
thereby widening IPR protection.
* The procedure for registration of trademarks expedited by
removing the earlier system of Part A and B registration. In addition,
only a single application need now be filed for registration of a
trademark in different classes. The 1999 Act also provides for the
classification in conformity with recognized International
Classification of Goods and Service s.
* The period of registration and renewal has been increased from
seven to ten years.
* The definition of "trademark infringement" has been broadened to
give protection beyond the use of identical/deceptively similar
marks in relation to goods for which they are registered.
* An action for infringement of trademark/passing-off can be filed in
a district court within whose jurisdiction the plaintiff (trademark
proprietor) resides or carries on business, as against the earlier law
which required the suit to be filed at the defendant's place.
* Under the new law, both registered and unregistered trademarks
can be assigned with or without the goodwill of the business.
Recently, by way of the Trademarks (Amendments) Rules, 2014,
the fee with respect to trademark filing has been increased in
certain cases. The fee for an expedited examination have also been
increased. Further, the Trade Marks Registry recently issued an
Office Order little with respect to alterations that may be made to an
application for trademark registration. This Order enlists certain
‘substantial alterations’, which would not be allowed; and other
alterations, primarily clerical in nature that would continue to be
accepted by the Registrar.
2. Protection to Geographical Indications Provided
India has enacted the Geographical Indications of Goods
(Registration and Protection) Act, 1999 (the GIG Act). The GIG Act
provides for registration and better protection of geographical
indications relating to goods to help identify the place of origin of
goods, quality, reputation and other distinctive characteristics of
these goods. The GIG Act now helps in protecting unique
Classification of Goods and Service s.
* The period of registration and renewal has been increased from
seven to ten years.
* The definition of "trademark infringement" has been broadened to
give protection beyond the use of identical/deceptively similar
marks in relation to goods for which they are registered.
* An action for infringement of trademark/passing-off can be filed in
a district court within whose jurisdiction the plaintiff (trademark
proprietor) resides or carries on business, as against the earlier law
which required the suit to be filed at the defendant's place.
* Under the new law, both registered and unregistered trademarks
can be assigned with or without the goodwill of the business.
Recently, by way of the Trademarks (Amendments) Rules, 2014,
the fee with respect to trademark filing has been increased in
certain cases. The fee for an expedited examination have also been
increased. Further, the Trade Marks Registry recently issued an
Office Order little with respect to alterations that may be made to an
application for trademark registration. This Order enlists certain
‘substantial alterations’, which would not be allowed; and other
alterations, primarily clerical in nature that would continue to be
accepted by the Registrar.
2. Protection to Geographical Indications Provided
India has enacted the Geographical Indications of Goods
(Registration and Protection) Act, 1999 (the GIG Act). The GIG Act
provides for registration and better protection of geographical
indications relating to goods to help identify the place of origin of
goods, quality, reputation and other distinctive characteristics of
these goods. The GIG Act now helps in protecting unique
Indian products linked to some geographical region of India, such
as Basmati Rice, Darjeerling Tea, Alphonso Mangoes, Malabar
Pepper, Cardamom and Hyderabad Grapes, which are all well
known in the international market. For many years, these products
have been exported on a regular basis, demonstrating India's
reputation of high quality of these products and, therefore, require
such protection. Under the GIG Act, assignment of geographical
indications is prohibited, being public property. The GIG Act also
lays down provisions for infringement actions. The GIG Act helps
prevent geographical indications of goods becoming generic which
may otherwise lead to a loss of distinctiveness and consequently
loss of protection.
3. Copyright Law Modified
The 2012 amendments in copyright law, which were made to make
Indian copyright law compliant with the WIPO Copyright Treaty
(WCT) and WIPO Performances and Phonograms Treaty,
introduced technological protection measures, ensured that fair use
survives in the digital era by providing special fair use provisions,
made many author-friendly amendments, special provisions for
disabled, amendments facilitating access to works and other
amendments to streamline copyright administration.
The Government is considering further amendments to the Indian
Copyright Act to help deter continuing piracy. Future amendments
would provide for greater deterrents against infringement through
more effective legislative and administrative frameworks. These
amendments would also offer the police wider powers to conduct
secret raids, seize and destroy infringing products, provide faster
criminal proceedings and increased punishment for piracy.
4. Patents Law more aligned with TRIPS
as Basmati Rice, Darjeerling Tea, Alphonso Mangoes, Malabar
Pepper, Cardamom and Hyderabad Grapes, which are all well
known in the international market. For many years, these products
have been exported on a regular basis, demonstrating India's
reputation of high quality of these products and, therefore, require
such protection. Under the GIG Act, assignment of geographical
indications is prohibited, being public property. The GIG Act also
lays down provisions for infringement actions. The GIG Act helps
prevent geographical indications of goods becoming generic which
may otherwise lead to a loss of distinctiveness and consequently
loss of protection.
3. Copyright Law Modified
The 2012 amendments in copyright law, which were made to make
Indian copyright law compliant with the WIPO Copyright Treaty
(WCT) and WIPO Performances and Phonograms Treaty,
introduced technological protection measures, ensured that fair use
survives in the digital era by providing special fair use provisions,
made many author-friendly amendments, special provisions for
disabled, amendments facilitating access to works and other
amendments to streamline copyright administration.
The Government is considering further amendments to the Indian
Copyright Act to help deter continuing piracy. Future amendments
would provide for greater deterrents against infringement through
more effective legislative and administrative frameworks. These
amendments would also offer the police wider powers to conduct
secret raids, seize and destroy infringing products, provide faster
criminal proceedings and increased punishment for piracy.
4. Patents Law more aligned with TRIPS
Modifications in Indian patent laws have been made in accordance
with TRIPS by widening the list of inventions not patentable,
incorporating greater rights of the patentee, reversing the burden
of proof in an infringement suit on process patents and creating a
uniform period of patent protection of twenty years for all categories
of invention.
During 2014, the Indian Patent Office released guidelines pertaining
to issuance of pharmaceutical patents. These guidelines primarily
incorporate features of various court decisions so as to assist the
Patent Office in establishing uniform standards of patent
grant/examination. These guidelines are expected to bring in
uniformity with regard to examinations of the patent applications
across all Patent Offices in India and by different responsible
officers, in addition to giving to the inventors and corporates much
desired certainty on how their application will be examined by the
Indian Patent Office. Furthermore, in the recent past, various
administrative and procedural mechanisms have been improved in
the field of intellectual property law. The infrastructure of the Indian
Patent Office has been improved greatly, so as to develop facilities
for proper management of International Searc hing
Authority/International Preliminary Examining Authority operation
under the Patent Cooperation Treaty.
Indian Patent (Amendment) Rules 2014 recently introduced a third
category of applicant being of "small entity", and provided
procedural rules for governing the same. Furthermore, the fee for
basic patent filing have been revised due to the introduction of the
e-filing system of patents wherein the rates for e-filing are lower
than those involved in physical filing.
with TRIPS by widening the list of inventions not patentable,
incorporating greater rights of the patentee, reversing the burden
of proof in an infringement suit on process patents and creating a
uniform period of patent protection of twenty years for all categories
of invention.
During 2014, the Indian Patent Office released guidelines pertaining
to issuance of pharmaceutical patents. These guidelines primarily
incorporate features of various court decisions so as to assist the
Patent Office in establishing uniform standards of patent
grant/examination. These guidelines are expected to bring in
uniformity with regard to examinations of the patent applications
across all Patent Offices in India and by different responsible
officers, in addition to giving to the inventors and corporates much
desired certainty on how their application will be examined by the
Indian Patent Office. Furthermore, in the recent past, various
administrative and procedural mechanisms have been improved in
the field of intellectual property law. The infrastructure of the Indian
Patent Office has been improved greatly, so as to develop facilities
for proper management of International Searc hing
Authority/International Preliminary Examining Authority operation
under the Patent Cooperation Treaty.
Indian Patent (Amendment) Rules 2014 recently introduced a third
category of applicant being of "small entity", and provided
procedural rules for governing the same. Furthermore, the fee for
basic patent filing have been revised due to the introduction of the
e-filing system of patents wherein the rates for e-filing are lower
than those involved in physical filing.
5. Protection for Plant Varieties and Rights of Farmers
established
India, in giving effect to the provisions of the TRIPS Agreement,
enacted the Protection of Plant Varieties and Farmers Rights Act,
2001, to provide for the establishment of an effective system for
protection of plant varieties. The 2001 Act recognizes and protects
the rights of farmers for their contributions made in conserving,
improving and making available plant genetic resources for the
development of new plant varieties. A variety that conforms to the
criteria of novelty, distinctiveness, uniformity and stability is
registrable under law. The 2001 Act provides for a total eighteen
years protection for trees and vines and fifteen years for other
plants.
6. New Designs Law
India enacted a separate law for the protection of copyrights in an
industrial design. The Designs Act, 2000 repealed the earlier
Designs Act, 1911. The new law protects proprietors of novel or
original designs and enforces those rights against infringers. The
new law incorporates the definition of the term "original" to specify
what is a registrable design. In relation to a design, the term
"original" includes designs, which though old in themselves, are
new in their application. Any design which is new or original, not
previously published in any country, whether India or outside India,
and which is not contrary to public order or morality is registrable
under the Act. The new Act amplified the definitions of "article" and
"design" to bring them in conformity with internationally accepted
definitions for providing wider protection. Designs do not need to be
registered in more than one class, which was not the case under
the earlier law. In view of India's accession to the Paris Convention
established
India, in giving effect to the provisions of the TRIPS Agreement,
enacted the Protection of Plant Varieties and Farmers Rights Act,
2001, to provide for the establishment of an effective system for
protection of plant varieties. The 2001 Act recognizes and protects
the rights of farmers for their contributions made in conserving,
improving and making available plant genetic resources for the
development of new plant varieties. A variety that conforms to the
criteria of novelty, distinctiveness, uniformity and stability is
registrable under law. The 2001 Act provides for a total eighteen
years protection for trees and vines and fifteen years for other
plants.
6. New Designs Law
India enacted a separate law for the protection of copyrights in an
industrial design. The Designs Act, 2000 repealed the earlier
Designs Act, 1911. The new law protects proprietors of novel or
original designs and enforces those rights against infringers. The
new law incorporates the definition of the term "original" to specify
what is a registrable design. In relation to a design, the term
"original" includes designs, which though old in themselves, are
new in their application. Any design which is new or original, not
previously published in any country, whether India or outside India,
and which is not contrary to public order or morality is registrable
under the Act. The new Act amplified the definitions of "article" and
"design" to bring them in conformity with internationally accepted
definitions for providing wider protection. Designs do not need to be
registered in more than one class, which was not the case under
the earlier law. In view of India's accession to the Paris Convention
and India being a signatory to the WTO, the right of priority has been
extended to countries under the Paris Convention. The initial period
for copyright in registered designs has been extended from 5 to 10
years. The new Act removes the earlier provisions regarding period
of secrecy of the design for two years and enables the public to
inspect any registered design during initial period of existence of
the registration.
7. Integrated Circuits Provisions adopted
In compliance with obligations under the TRIPS Agreement, India
has enacted the Semiconductor Integrated Circuits Layout-Design
Act, 2000. This Act provides for registration of original, inherently
distinctive and not yet exploited layout-designs. Any misuse of a
registered layout-design can be prevented by way of an
infringement action. The Act provides a term of protection for 10
years.
Although the Indian IP laws are still in the stages of development
but the same are very much in conformity with the international IP
laws as India is a signatory to international conventions and treaties
including Paris Convention for the Protection of Industrial Property,
Berne Convention on Copyright and TRIPS Agreement. Generally
speaking, other than period of protection available and the time and
cost taken to register an IP, there are but a few major differences
between Indian and European IP laws and even those primarily
relate to less significant procedural aspects. However, there have
been significant concerns over IP enforcement, with a backlog of
cases at both the civil and criminal courts and IP Offices, and this
is the area where Indian needs to work.
extended to countries under the Paris Convention. The initial period
for copyright in registered designs has been extended from 5 to 10
years. The new Act removes the earlier provisions regarding period
of secrecy of the design for two years and enables the public to
inspect any registered design during initial period of existence of
the registration.
7. Integrated Circuits Provisions adopted
In compliance with obligations under the TRIPS Agreement, India
has enacted the Semiconductor Integrated Circuits Layout-Design
Act, 2000. This Act provides for registration of original, inherently
distinctive and not yet exploited layout-designs. Any misuse of a
registered layout-design can be prevented by way of an
infringement action. The Act provides a term of protection for 10
years.
Although the Indian IP laws are still in the stages of development
but the same are very much in conformity with the international IP
laws as India is a signatory to international conventions and treaties
including Paris Convention for the Protection of Industrial Property,
Berne Convention on Copyright and TRIPS Agreement. Generally
speaking, other than period of protection available and the time and
cost taken to register an IP, there are but a few major differences
between Indian and European IP laws and even those primarily
relate to less significant procedural aspects. However, there have
been significant concerns over IP enforcement, with a backlog of
cases at both the civil and criminal courts and IP Offices, and this
is the area where Indian needs to work.
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