This article has been written by Ms. Madhavi Sanapala, a 5th year LLB Student from Dr. B. R. Ambedkar College of Law, Andhra University.
Intellectual Property and the classification
Intellectual property (IP) refers to a set of intangible assets that are legally protected and recognized as the creations of the human mind. These creations include inventions, trademarks, trade secrets, and artistic works, such as literature, music, and software. IP law provides the creators and owners of these works with exclusive rights to control their use and distribution. There are four main types of intellectual property: patents, copyrights, trademarks, and trade secrets. Each type of IP provides different levels of protection and legal rights and serves different purposes in protecting and promoting innovation.
- Patents
Patents are exclusive rights granted by the government to an inventor for a certain period of time, usually 20 years from the date of filing, in exchange for full disclosure of the invention. The purpose of a patent is to encourage innovation by allowing inventors to profit from their ideas, while also allowing the public to benefit from new technologies and products. A patent protects the invention from being copied, manufactured, or used by others without the inventor’s permission.
There are a few types of patents. They are:
a. Utility patents cover new and useful inventions or discoveries, including processes, machines, manufactured goods, and improvements to existing inventions. These patents are the most common type of patent and are used to protect a wide range of products and processes, including consumer goods, medical devices, and software. Utility patents are granted by the government to inventors or creators who have developed a new and useful invention. The patent gives the inventor or creator the exclusive right to prevent others from making, using, selling, and importing the invention for a certain period of time, usually 20 years from the date of filing the patent application.
b. Design patents protect the unique ornamental design of an article of manufacture. These patents are used to protect the appearance of a product, such as the design of a car, clothing, or furniture. A design patent gives the owner the exclusive right to prevent others from making, using, selling, and importing a design that is substantially similar to the patented design for a period of 15 years from the date of the grant.
c. Plant patents cover newly discovered and asexually reproduced varieties of plants. These patents are used to protect new plant varieties, including fruit trees, ornamental plants, and vegetables. A plant patent gives the owner the exclusive right to prevent others from reproducing, selling, or using the patented plant variety for a period of 20 years from the date of the grant.
d. Provisional patent is a type of patent application that provides a way for inventors to secure a filing date for their invention without having to complete a full, formal patent application. It is a less expensive and less complex alternative to filing a regular utility patent application. A provisional patent application is a temporary application that provides a “patent pending” status for an invention. This status indicates that the inventor has filed a patent application for their invention and is in the process of obtaining a patent.
- Copyrights
Copyrights are legal protections that cover original works of authorship, such as literary works, musical compositions, and software programs. A copyright gives the creator of the work the exclusive right to control the use and distribution of the work, including the right to make copies, distribute the work, perform the work in public, and create derivatives based on the work. Copyright protection begins as soon as a work is fixed in a tangible form and lasts for the life of the author plus a set number of years after the author’s death. Copyright law protects various forms of original and creative works, including literary works, musical works, artistic works, cinematograph films, sound recordings, and a few others.
a. Literary works refer to written works, such as books, articles, and poems. These works are protected under copyright law and cannot be used without permission from the copyright owner. This includes reproducing the work, creating a derivative work based on the original, or publicly performing the work. The copyright owner has the exclusive right to control the distribution, monetization, and exploitation of literary work.
b. Musical works refer to original compositions or recordings of musical pieces, including lyrics and musical scores. These works are protected under copyright law and cannot be used without permission from the copyright owner. This includes reproducing the work, creating a derivative work based on the original composition, or performing the work publicly.
c. Artistic works, on the other hand, refer to original works of visual art, such as paintings, drawings, sculptures, and photographs. Artistic works are protected by copyright law and cannot be used without permission from the copyright owner. This includes reproducing the work, creating a derivative work based on the original, or displaying the work publicly.
d. Cinematograph films refer to original works of film, including feature films, documentaries, and animation. These works are protected under copyright law and cannot be used without permission from the copyright owner. This includes reproducing the film, creating a derivative work based on the original, or publicly exhibiting the film.
e. Sound recordings refer to original recordings of musical pieces or other sounds, such as spoken word recordings. Sound recordings are protected by copyright law and cannot be used without permission from the copyright owner. This includes reproducing the recording, creating a derivative work based on the original, or publicly performing the recording.
f. Architectural Copyright covers architectural plans and designs.
g. Performative Copyright covers the performance of a work, such as a play or musical composition.
h. Derivative Copyright covers works that are based on or derived from a pre-existing work, such as a movie adaptation of a book.
3. Trademarks
Trademarks are symbols, logos, and other distinctive signs that are used to identify and distinguish goods and services from those of others in the marketplace. A trademark provides legal protection to the owner of the mark by giving the owner the exclusive right to use the mark in connection with the goods or services for which it is registered. Trademarks are meant to protect consumers from confusion and prevent others from using similar marks that may mislead consumers. A trademark owner has the right to take legal action against anyone who uses a similar mark in a way that is likely to cause confusion with the owner’s mark.
There are several types of trademarks, including
a. Word marks are trademarks that consist of words, letters, or numbers. For example, “Apple” is a word mark that identifies the source of Apple Inc.’s products.
b. Design marks are trademarks that consist of a design, logo, or symbol. For example, Nike’s “swoosh” logo is a design mark that identifies the source of Nike’s products.
c. Slogan marks are trademarks that consist of a catchy phrase or tagline. For example, McDonald’s “I’m lovin’ it” is a slogan mark that identifies the source of McDonald’s products.
d. Trade dress trademark refers to the overall look and feel of a product or service. For example, the distinctive design and layout of an Apple store is considered a trade dress and identify the source of Apple’s retail services.
e. Sound marks are trademarks that consist of a specific sound or musical jingle. For example, the MGM lion’s roar that plays before movies is a sound mark that identifies the source of MGM’s films.
f. Collective marks are trademarks used by members of a group or organization to identify themselves as part of that group. For example, the “Good Housekeeping Seal of Approval” is a collective mark used by members of the Good Housekeeping Institute to identify their products.
g. Certification marks are trademarks that indicate that a product or service meets certain standards or qualifications. For example, the “Certified Organic” mark indicates that a product has been certified to meet organic standards.
h. Service mark is a trademark that is used to identify and distinguish the services of one business from those of others. Service marks can consist of words, logos, symbols, or even sounds. For example, the McDonald’s “Golden Arches” logo is a service mark that identifies the source of McDonald’s fast food restaurant services.
i. Geographical indicator (GI) is a trademark that identifies a product as originating from a specific geographic location and having a certain quality, reputation, or another characteristic that is linked to that location. Examples of products that can be protected by GIs include wine, cheese, coffee, tea, and handicrafts.
4. Plant varieties
A type of intellectual property that protect new and distinct varieties of plants. This type of intellectual property provides legal protection for plant breeders and growers for their new plant varieties, allowing them to benefit from their investment and efforts in developing new plants. Plant variety protection is a way for plant breeders and growers to secure exclusive rights to their new plant varieties for a limited period of time. During this time, others are prevented from reproducing, selling, or using the protected plant variety without permission from the owner. There are two main ways to protect plant varieties: plant patents and plant variety rights. Plant patents are granted by the government and provide the exclusive right to prevent others from using, selling, or reproducing the patented plant variety. Plant variety rights, also known as plant breeders’ rights, are granted by organizations such as the International Union for the Protection of New Varieties of Plants (UPOV). To be eligible for plant variety protection, the plant must be new, distinct, stable, and uniform. The plant must also have been asexually reproduced, such as by cuttings or grafting.
5. Trade dress
It is a type of intellectual property that protects the overall appearance and visual image of a product or product packaging. It refers to the visual appearance of a product or its packaging, including its shape, color, design, and texture, that serves to identify and distinguish the product from others. Trade dress protection is designed to prevent others from using a similar appearance for their products or packaging, which can cause confusion among consumers and harm the reputation and sales of the original product. This type of intellectual property protection applies to both product packaging and the overall appearance of a product itself. To be eligible for trade dress protection, the trade dress must be distinctive and non-functional. This means that the trade dress must be capable of serving as a source identifier for the product and cannot be an essential feature of the product.
6. Trade Secrets
Trade secrets are confidential and proprietary information that gives a business a competitive advantage in the marketplace. Examples of trade secrets include customer lists, manufacturing processes, and formulas for new products. Trade secrets are protected under state and federal law and provide a business with the right to take legal action against anyone who misappropriates or discloses its confidential information. Unlike patents and copyrights, trade secrets do not have a set term of protection. Instead, they are protected as long as they remain confidential and have economic value.
Conclusion
There are several types of intellectual property that businesses can use to protect their creations, inventions, and brand identity. They are valuable tools for businesses to use to safeguard their intellectual property and maintain a competitive edge in their industry. By understanding the different types of intellectual property and how they work, businesses can better protect their assets and achieve success in today’s fast-paced and ever-changing marketplace. It is important for businesses to consult with legal professionals to determine which type of intellectual property protection is best for their specific needs and to ensure that their rights are properly safeguarded.
https://core.ac.uk/download/pdf/81960566.pdf
https://www.redalyc.org/journal/6002/600265029006/html/
https://plato.stanford.edu/entries/intellectual-property/#PersBaseJustInteProp
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