INTELLECTUAL PROPERTY RIGHTS Short notes from this Act would be asked.

The following topics, their meaning and scope have been discussed in class in a very limited manner. Please ujse your own discretion to decide how much to write in the short note as nothing has been mentioned by mam. REFERENCE (REF) USED-http://www.legalhelpindia.com/intellectual-propertyrights/copyright.html TRADEMARK, COPYRIGHT, PATENT, INDUSTRIAL DESIGN, GI WHAT ARE INTELLECTUAL PROPERTY RIGHTS? Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. TRADEMARK WHAT IS A TRADEMARK?

A trademark is a mark used in relation to goods for the purpose of indicating a connection between the goods and some person having the right as proprietor to use the mark

It is a visual symbol in the form of a word, device or a label applied to articles of commerce with a view to indicate to the purchasing public that they are goods manufactured or otherwise dealt in by a particular person or a particular organisation as distinguished from similar goods manufactured or dealt in by others.

GOVERNING LAW-TRADEMARKS ACT, 1999 FUNCTIONS OF A TRADEMARK A trademark serves the purpose of identifying the source or the origin of goods. Trademark performs the following four functions.

It identifies the product and its origin. It proposes to guarantee its quality. It advertises the product. The trademark represents the product. It creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.

MARKS NOT REGISTERABLE a. The use of which would be likely to deceive or cause confusion. b. A mark the use of which would be contrary to any law for the time being in force c. A mark comprising or containing scandalous or obscene matter d. A mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section e. A mark which would be disentitled to protection in court of law f. A mark which is identical with or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description g. A word which is the accepted name of any single chemical name or chemical compound in respect of chemical substances.

h. A geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India. i. Besides others TIME PERIOD The registration of a trademark shall be for a period of seven years, but it may be renewed from time to time. INFRINGEMENT Infringement of a trademark occurs if a person other than the registered proprietor in the course of trade, in relation to the same goods or services for which the mark is registered, uses the same mark or deceptively similar mark. ESSENTIALS OF INFRINGEMENT 1) The taking of any essential feature of the mark or taking the whole of the mark a few additions and alterations would constitute infringement. 2) The infringing mark must be used in the course of trade, that is, in a regular trade wherein the proprietor of the mark is engaged. 3) The use of the infringing mark must be printed or usual representation of the mark in advertisements, Invoices or bills. Any oral use of the trademark is not infringement. 4) Any or all of the above acts would constitute infringement. REMEDIES

The proprietor of a trademark has a right to file a suit for infringement of his right and obtain 1. Injunction- an injunction restrains the defendant from using the offending mark pending the trial of the suit or until further orders. 2. Damages in assessing the damages the important question is what is the loss sustained by the plaintiff. The loss must be the natural and direct consequence of the defendants acts. The object of damages is to compensate for loss or injury. 3. Accounts of profits. Where a plaintiff claims the profits made by the unauthorised use of his trademark, it is important to ascertain to what extent he trademark was used, in order to determine what proportion of the net profits realised by the infringer was attributable to its use. NO ACTION FOR INFRINGEMENT OF UNREGISTERED TRADE MARK No person shall be entitled to institute any proceeding to prevent, or recover damages for, the infringement of an unregistered of an unregistered JURISDICTION A suit for infringement of registered trademark is filed in District Court having jurisdiction or in a High Court having original jurisdiction to entertain such suits. The infringement must have taken place within the territorial jurisdiction of the Court. LIMITATION

The period of limitation for filing the suit is three years from the date of infringement. COPYRIGHT The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain. It protects the writer or creator of the original work from the unauthorized reproduction or exploitation of his materials. There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed. Works protected by copyright are: 1) Original, Literary, dramatic, musical and artistic works; 2) Cinematographic film; and 3) Records HOW TO OBTAIN COPYRIGHT In order to secure copyright protection what is required is that the author must have bestowed upon the work sufficient judgment, skill and labor or capital. It is immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has not any literary merit. In order to qualify for copyrights the works apart from being original, should satisfy the following conditions (except in he case of foreign works)

1. The work is first published in India. 2. Where the work is first published outside India the author, at the date of publication must be a citizen of India. If the publication was made after the authors death the author must have been at the time of his death a citizen of India. 3. In case of unpublished work the author is at the date of making the work a citizen of India or domiciled in India. 4. In case of the architectural work of art, the work is located in India. REGISTERATION OF COPYRIGHT The steps for Registration: 1. Application in triplicate with prescribed fees. 2. Applicant to serve notice of his application to every person who has any interest in the subject matter. 3. If the Registrar receives any objection he may after holding such inquiry as he deems fit, enter such particulars of work in the register of copyright, which he considers proper. 4. Registrar then sends copies of the entries made in the register to the parties concerned TERM OF COPYRIGHT The term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous. Thus it may

be seen that in the case of literary, dramatic, musical or artistic works where the author is a natural person the term is lifetime plus fifty years. In all other cases the term if fifty years from the years of publication. WHO IS THE FIRST OWNER OF COPYRIGHT The author of the work is the first owner.

In case the author is employed by newspaper, magazine etc under a contract of service, the proprietor will be the first owner in the absence of an agreement to the contrary in the case of a literary, dramatic or artistic work. Where a photograph is taken, or a painting or portrait drawn for a valuable consideration at the instance of person, such person is the first owner.

Where any address or speech is delivered in public, the person delivering is the first owner and where it is delivered on behalf of another person such other person is the first owner.

In case of Government work, Government shall be the first owner. In case of work made or published by or under any public undertaking, it shall be the first owner.

INFRINGEMENT Copyright in a work is deemed to be infringed: a. When any person without a license from the owner of the copyright, or the Registrar of Copyright (in certain situations) or in contravention of the conditions of a license,

i.

does anything the exclusive right to do which belongs to the copyright owner, or

ii.

knowingly permits for profit any place to be used for the performance of the work in public which continues an infringement of the work, or

b. When any person, makes for sale or hire, or sells or lets for hire, or offers for sale or hire, or exhibits in public for trade or import (except two copies other than cinematography film or record for personal use) any infringing copies of the week. In general it is the commercial exploitation of the work in any form by a person without authority that constitutes infringement. REMEDIES AGAINST INFRINGEMENT There are three kinds of remedies against infringement of copyright, namely: 1. Civil remedies Injunction damages or account of profit, delivery of infringing copy and damages for conversion. 2. Criminal remedies Imprisonment of the accused or imposition of fine or both. Seizure of infringing copies. 3. Administrative remedies Administrative remedies consist of moving the Registrar of copyrights to ban the

import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery. JURISDICTION OF COURTS A suit or other civil proceedings relating to infringement of copyright is filed in the District Court or High Court within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose irrespective of the place of residence or place of business of the defendant LIMITATION The period of limitation for filing the suit is three years from the date of infringement. PATENT WHAT IS A PATENT Patent, under the Act, is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patent, anybody can make use of the invention. WHAT IS AN INVENTION Invention means any new and useful a. art, process, method or manner of manufacture b. machine, apparatus or other article

c. substance produced by manufacture and includes any new and useful improvement of any of them, and alleged invention Therefore an invention is the creation of intellect applied to capital and labour, to produce something new and useful. Such creation becomes the exclusive property of the inventor on grant of patent. GOVERNING LAW THE PATENTS (AMENDMENT) ACT, 2005 APPLICATION FOR A PATENT An application for a patent may be made by the actual inventor of the invention, or an assignee of the right to make an application or a legal representative of either. It is the person who first applies for a patent who is entitled to the grant. A prior inventor of the invention who applies subsequently will not get the patent as against the first applicant. RIGHTS OF A PATENTEE The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property. a. The patentee can sell the whole or part of this property (Patent). b. He can also grant license to other(s) to use the patented property. c. He can also assign such property to any other(s).

Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually. PERIOD OF PATENT 1. In respect of process patents relating to drugs and food, the term is five years from the date of sealing the patents or seven years from the date of the patent whichever is shorter. 2. In respect of all other patents the term is fourteen years from the date of the patent. A patent is kept alive only by paying the renewal fee from time to time INFRINGEMENT OF THE PATENT The right conferred by the Patent is the exclusive right to make, use, exercise, sell or distribute the invention n India. Infringement consists in the violation of any of these rights. The act expressly provides that use by a person other than the patentee, patentees assignee or licensee would be an infringement of the patent and as such illegal. REMEDY FOR INFRINGEMENT OF PATENT An action for infringement must be instituted by way of a suit in any District Court or a High Court having jurisdiction to entertain the suit. The plaintiff on satisfying the court about infringement of his patent would be entitled to the following relief: 1. Interlocutory injunction

2. Damages 3. Account of profits INTELOCUTORY INJUNCTION The Plaintiff may at the commencement of the action move for an interim injunction to restrain the defendant from committing the acts complained of until the hearing of the action or further orders. The plaintiff should make out a prima facie case and also show that the balance of convenience lies in his favour. DAMAGES In assessing the damages the important question is what is the loss sustained by the patentee. The loss must be the natural and direct consequence of the defendants acts. The object of damages is to compensate for loss or injury. ACCOUNTS OF PROFITS Where a patentee claims the profits made by the unauthorised use of his patent, it is important to ascertain how much of his invention was appropriated, in order to determine what proportion of the net profits realised by the infringer was attributable to its use. GEOGRAPHICAL INDICATION MEANING A geographical indication (sometimes abbreviated to GI) is a name or sign used on certain products or which corresponds to a specific geographical location or origin (eg. a town, region, or country). The use of a GI may act as a certification that the

product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin. GOVERNING LAW Geographical Indications Of Goods (Registration And Protection) Act 1999 EXAMPLES In India some of the examples of geographical indications are : # Basmati Rice # Darjeeling Tea # Kanchipuram Silk Saree # Alphanso Mango # Nagpur Orange # Kolhapuri Chappal # Bikaneri Bhujia # Agra Petha # Malabar pepper India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection)Act, 1999 has come into force with effect from 15th September 2003. REF-http://www.patentoffice.nic.in/ipr/gi/Girule~1.PDF INDUSTRIAL DESIGN Industrial designs refer to creative activity which result in the ornamental or formal appearance of a product and design right refers to a novel or original design that is

accorded to the proprietor of a validly registered design. Industrial designs are an element of intellectual property. Under the TRIPS Agreement, minimum standards of protection of industrial designs have been provided for. As a developing country, India has already amended its national legislation to provide for these minimal standards. The essential purpose of design law it to promote and protect the design element of industrial production. It is also intended to promote innovative activity in the field of industries. The existing legislation on industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve its purpose well in the rapid changes in technology and international developments. India has also achieved a mature status in the field of industrial designs and in view of globalization of the economy, the present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration. REF-http://www.patentoffice.nic.in/ipr/design/des_rule.PDF http://www.patentoffice.nic.in/ipr/design/designs.htm