What are Intellectual Property Rights?

Intellectual property rights (IPR) are the rights given to

persons over the creations of their minds: inventions, literary
and artistic works, and symbols, names and images used in
commerce. They usually give the creator an exclusive right
over the use of his/her creation for a certain period of time.
The importance of intellectual property was first recognized
in the Paris Convention for the Protection of Industrial
Property (1883) and the Berne Convention for the
Protection of Literary and Artistic Works (1886). Both
treaties are administered by the World Intellectual
Property Organization (WIPO).
What is the need of IPR?
The progress and well-being of humanity rest on its capacity to
create and invent new works in the areas of technology and
culture.
▪ Encourages innovation: The legal protection of new
creations encourages the commitment of additional
resources for further innovation.
▪ Economic growth: The promotion and protection of
intellectual property spurs economic growth, creates new
jobs and industries, and enhances the quality and
enjoyment of life.
▪ Safeguard the rights of creators: IPR is required to
safeguard creators and other producers of their intellectual
commodity, goods and services by granting them certain
time-limited rights to control the use made of the
manufactured goods.
▪ It promotes innovation and creativity and ensures ease of
doing business.
▪ It facilitates the transfer of technology.
India and IPR
India is a member of the World Trade Organisation and
committed to the Agreement on Trade Related Aspects of
Intellectual Property (TRIPS Agreement).
India is also a member of World Intellectual Property
Organization, a body responsible for the promotion of the
protection of intellectual property rights throughout the
world.

National IPR Policy

▪ The National Intellectual Property Rights (IPR) Policy
2016 was adopted in May 2016 as a vision document to
guide future development of IPRs in the country.
▪ “Creative India; Innovative India”.
▪ It encompasses and brings to a single platform all IPRs,
taking into account all inter-linkages and thus aims to
create and exploit synergies between all forms of
intellectual property (IP), concerned statutes and agencies.
▪ It sets in place an institutional mechanism for
implementation, monitoring and review. It aims to
incorporate and adapt global best practices to the Indian
scenario.
▪ Department of Industrial Policy & Promotion
(DIPP), Ministry of Commerce, Government of India, has
been appointed as the nodal department to coordinate,
guide and oversee the implementation and future
development of IPRs in India.
▪ India’s IPR regime is in compliance with the WTO's
agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS).
Patents:

A patent is a form of preservation of intellectual

property. It is an exclusive right granted for an
invention, which is a product or a process that provides,
in general, a new way of doing something, or offers a new
technical solution to a problem.
To get a patent, technical information about the
invention must be disclosed to the public in a patent
application.
Patentability Criteria for an Invention:

1. It should be novel.
2. Must involve an inventive step (technical
advancement)
3. Capable of industrial application.

Term of Patent:

The term of every patent in India is twenty years from the

date of filing the patent application, irrespective of
whether it is filed with provisional or complete
specification.
Patents Act, 1970 : This principal law for patenting system
in India came into force in the year 1972.
The Act was amended by the Patents (Amendment) Act,
2005, wherein product patent was extended to all fields
of technology including food, drugs, chemicals and
microorganisms.
Patents (Amendment) Rules, 2021:

Patent Fees for Educational Institutions Reduced:

At the time of applying for patents, the innovators have to
apply these patents in the name of the institutions
which have to pay fees for large applicants, which are
very high and thus work as a disincentive.
In this regard and to encourage greater participation of the
educational institutions, official fees payable by them in
respect of various acts under the Patents Rules, 2003,
have been reduced by way of the Patents (Amendment)
Rules, 2021.
Benefits related to 80% reduced fee for patent filing &
prosecution have been extended to all educational
institutions.

What is a Trademark?
Trademark is a branch of intellectual property rights.

A trademark includes a name, word, or sign that differentiates

goods from the goods of other enterprises. Marketing of goods
or services by the procedure becomes much easier with a
trademark because recognition of product with the trademark is
assured and easier.

Trademark is a marketing tool which increases financing of the

business.
 A trademark is not always a brand but the brand is always is a
trademark.

Sometimes there is a confusion between trademark and brand.

The brand name can be simply a symbol or logo but the
trademark is a distinguishing sign or indicator in a business
organization as it has a wider implication than brands. People
are more influenced by the distinctive trademark that reflects
the quality of the product. A trademark can be a logo, picture
mark or a slogan.

Trademark law in India

Trademark Act, 1999 .The aim of the Trademark Act is to grant
protection to the users of trademark and direct the conditions
on the property and also provide legal remedies for the
implementation of trademark rights.

The Trademark Act, 1999 gives the right to the police to arrest
in cases of infringement of the trademark.

Types of Trademark

Service mark
A service mark is any symbol name, sign, device or word which
is intentionally used in trade to recognize and differentiate the
services of one provider from others. Service marks do not
cover material goods but only the allocation of services.
Service marks are used in day to day services :

• Sponsorship
 • Hotel services
• Entertainment services
A service mark is expected to play a critical role in promoting
and selling a product or services. A product is indicated by its
service mark, and that product’s service mark is also known as
a trademark.

Collective mark
A collective mark is used by employees and a collective group,
or by members of a collaborative association, or the other group
or organization to identify the source of goods or services.

A collective trademark is used by the single members of a

group of an organization but is registered as a whole group.
Example- CA is the title or mark which given to the member of
Institute of a chartered accountant. That collective mark may
be used by the group of association.

Certification mark
A certificate mark is verification or confirmation of matter by
providing assurance that some act has been done or some
judicial formality has been complied with. A certification mark
indicates certain qualities of goods or services with which the
mark are used is certified.

Those goods or services which not so certified and registrable

as such under this Act, in respect of those goods or services in
the name as the proprietor of the certification trade mark, of
that person.
Trade dress
Trade dress is a term that refers to features of the visual
appearance of a product or design of a building or its packaging
that denote the source of the product to customers. It is a form
of intellectual property. Trade dress protection is implemented
to protect consumers from packaging or appearance of products
that framed to imitate other products.

The requirement for the registration of trade dress is the same

as the registration of the logo, mark. The features in trade dress
are size, colour, texture, graphics, design, shape, packaging,
and many more.

Designation of trademark
Trademark is designated by:

• ™ (™ is used for an unregistered trademark.it is used to

promote or brand goods).
• ℠ ( used for an unregistered service mark.it is used to
promote or brand services).
• R (letter R is surrounded by a circle and used for
registered trademark).

Issues in India’s IPR regime

1)Indian Patent Act does not allow evergreening of

patents.This has been a cause of concern to the pharma
companies.
▪ Issue of Compulsory licencing (CL): CL is problematic
for foreign investors who bring technology as they are
concerned about the misuse of CL to replicate their
products. It has been impacting India-EU FTA
negotiations.

o CL is the grant of permission by the government to

entities to use, manufacture, import or sell a patented
invention without the patent-owner’s consent. Patents
Act in India deals with CL.
▪ India continues to remain on the United States Trade
Representative's (USTR’s) ‘Priority Watch List’ for
alleged violations of intellectual property rights (IPR).

US termed India as “one of the world’s most challenging

major economies" with respect to protection and
enforcement of IP.
▪ Data Exclusivity: Foreign investors and MNCs allege that
Indian law does not protect against unfair commercial use
of test data or other data submitted to the government
during the application for market approval of
pharmaceutical or agro-chemical products. For this they
demand a Data Exclusivity law.
Way Forward
▪ Promoting an environment of innovations in schools.
▪ A proper resolution mechanism for resolving IPR related
issues is needed.
▪ India will be unable to take full advantage of the
transformative benefits of a strong IP system unless and
until it addresses gaps in its IP laws and regulations.
▪ Success of India’s flagship programmes - Make in
India and Start up India - depends on the boost of
innovation ecosystem with better IPR safeguardings.

o More awareness is needed about the creation,

protection and enforcement of IPRs to encourage the
Indian industry not only to innovate but also to protect
and enforce their innovations.

Conclusion
▪ India has made a number of changes in its IPR regime to
increase efficiency and has cut down the time required to
issue patents.The culture of innovation is taking centre
stage in the country. India is well poised to focus on R&D.
This has been reflected in its improved ranking in Global
Innovation Index over the years.
▪ Government’s effort to strengthen National IPR policy, IP
appellate tribunal, e-governance and commitment to abide
by the TRIPS agreement of WTO in letter and spirit will
help in improving perception of India globally.
▪ An efficient and equitable intellectual property system can
help all countries to realize intellectual property’s
potential as a catalyst for economic development and
social & cultural well-being.