Intellectual Property
Intellectual property is a kind of property, which is comprising of intangible creations of the human mind and it is protected by certain laws. It involves everything from original plays, novels to inventions and company identification marks.
Copyright protection is provided to protect literary, artistic and musical works. The “copyright” rights are linked to performing artists in shows, broadcasters in the television shows, etc.
Intellectual property rights are usually said to be a package of exclusive rights granted to the lawful owner. The term intellectual property indicates the specific legal rights, and not the intellectual work itself. It is necessary to be aware of what these IP rights are, how they can be protected and, in due course, how to benefit from them. The purpose of intellectual property laws is to promote new technologies, artistic expressions, and inventions while boosting economic growth. When individuals know that their creative work will be protected and that they can profit from their labor, they are more likely to proceed to “build things that create jobs, develop new technology, and develop new methods to make certain processes more efficient”.
Commonly used Intellectual Property
The protection, and registration of various kinds of “Intellectual Properties” is done both in India and internationally. But these 3 are the most commonly used Intellectual Properties.
1. TRADEMARK
A trademark is the most valuable asset held by a business. When a business is successful, others will follow not only the ideas and market strategy, but very frequently they will also reflect the trademarks, product packaging, distinctive markings, etc. used by a successful company. Businesses with especially successful products or services spend large amounts of time, effort and money building, in setting and promoting their unique identities.
Owners who neglect and don’t pay sufficient attention towards the protection of their company’s trademarks face a whole lot of risks, including the failure to register or use their marks on a future date, the dilution of the market’s recognition of their products or services, and, in some cases, they end up paying huge resources in legal action to stop illegal use or justify the use of their own property.
It is hence appropriate that the trademarks are registered on all the goods and services over which the trademark is applied. The legislations which deals with the protection and registration of trademarks in India are “The Trademark Act, 1999 and The Trademark Rules 2002”. In India, trademark registration is valid for 10 years. It can be renewed in the same way from time to time for extra periods of 10 years.
For registration of a mark as a trademark in India, the mark has to meet specific criteria. These involve the following requirements:
The mark must be non- generic– A generic trademark is a trademark or brand name that has either became a “familiar or generic description” for (or synonymous with) a broad class of products or services, rather than the precise meaning designed by trademark’s holder. A trademark typically becomes “generalized” when the products or services with which it is linked have received substantial mind share.
The mark must be non- descriptive– Descriptive trademarks are those which illustrate some aspect, characteristic or quality of the products on which they are used.
The mark is not the same or alike to existing marks- A proposed mark must not be alike or same, to an earlier trademark which is already registered in the name of another proprietor.
The mark should be known- deceptive– A deceptive trademark is one which incorrectly shows, that the goods over which it is applied have some qualities but they do not.
The term trademark or service mark hold any word, name, symbol, or device, or any mixture thereof to identify and separate goods, including a unique product, from those made or sold by others and to show the source of the goods.
2. PATENT
AA patent is a kind of protection that gives a person or a legal entity certain private rights for making, using or selling a concept or invention and eliminates others from doing the same. It also provides protection in the form of allowing to take a legal action against those who infringe the invention.
Patents usually cover innovations, products or processes that involve new functional or technical aspects. It is given by the Indian Patent Office and has a validity of 20 years. After the end of this 20-year monopoly, the product/ invention will come in the public domain for any third party to practice it.
The legislations which administers with the protection and registration of patents in India are “The Patent Act, 1970 and The Patent Rules 2003”. The patent Act 1970 has supported three (3) amendments in 1999, 2002 and 2005. In the 2005 amendment included product patent protection for food, Pharma, and chemical inventions.
In India an invention/product has to meet several criteria to qualify for a patent are:
New/ Novel- The invention has a feature that places it apart from past inventions and is unknown to the public.
Non-obviousness- The invention’s creation must not be obvious to someone who has average skill in the area of invention.
Utility- The invention is estimated helpful.
Registration of a patent assures protection in all over India. If somebody needs to protect their invention in another country, then they have to apply in every country where the Candidate needs patent protection for their product or invention.
3. COPYRIGHT
Copyright is a right provided by the law to the creators of literary, dramatic, musical, artistic works and producers of cinematograph films and sound recordings. It is a bunch of rights including rights of reproduction, communication to the public, adaptation, and translation of the work.
The creator of a copyrighted work has the right to check/ prevent illegal copying or reproduction of their work by others for a certain time after the said work will join the public domain. The protection of copyright varies according to national legislation and the kind of work. The Indian law extends copyright protection for the work created by an individual for a lifetime of the author plus sixty (60) years. The Copyright Act, 1957 and the Copyright Rules, 1958 give for the protection of copyrights in India.
There are several criterias for securing copyright protection for a work. Firstly, the work needs to be original and secondly, the work must be fixed or done in a tangible form such as writing, recording, film or photography, etc. It is to be seen that, Copyright does not protect the underlying idea but only the expression of that singular idea is protected under copyright.
Copyright is given automatically to the author of any original work covered by the law, as soon as the work is composed. Copyright registration is valuable to a copyright holder who wants to take civil or criminal action upon infringement.
IP rights, protection is available in many countries over the world, because of India being a member of the Berne Convention. Protection is provided to works first published in India, in respect to all the countries that are member states. Thus, without formally applying for protection, copyright protection is open to works first published in India, over different countries. The International Copyright Order, 1999 has prolonged copyright protection in India to works 1st published outside of India.
Registration of Intellectual Property Rights
The intellectual property rights in India like trademarks and patents are regulated by the various bodies i.e. are Controller General of Patents Designs and Trademarks, Department of Industrial Policy and Promotion, and Ministry of Commerce and Industry. Copyrights are managed by the Copyright Office, Copyright Societies and Government of India. The application must be given to the concerned authorities, based on the type of intellectual property right to be registered, in the directed form.
Importance of Intellectual Property
Developing “new products, methods, brand names, content, etc.” are resource-intensive and regularly need huge investments. It is, hence, the expectation of the individuals or entities producing them that they have particular rights over their creation to the exclusion of others. Intellectual Property systems and laws provide this exclusivity. For certain forms of IP like trademark and copyright, the right is born the day the work is produced, registration though not mandatory gives some benefits and advantages like prima facie proof of the owners making it simpler to enforce the IP right in court.
Otherwise, the registered owner will have to show that the IP belongs to him when the IP is used illegally. In the case of a trademark, only a registered owner can claim and sue for infringement. For certain IPs like patents and designs, the right is given upon making the application and complying with the laws prescribed for their registration. The IP (protected), helps the registered owners to get the returns of their investments by restricting others from using the creation without permission. IP rights and registrations assist the owner to eliminate third parties from using the invention in an unauthorized manner and having a free ride on the efforts of the original inventor. It gives an incentive to keep creating new things and profit from them.
