The article has been written by Pravin Kumar Ray, a 3rd Year Law student of Sarsuna Law College, Kolkata
Intellectual property rights, including patents and trademarks, are frequently used to protect innovations. These rights allow their owners to exclude competitors from using the innovation. In essence, they are a limited monopoly. As the pace of discovery progresses, the use of patents and other intellectual property (IP) rights to protect discoveries has increased tremendously. If you have formed a creative expression, invention, software, or process by yourself or in conjunction with others, then you have created intellectual property. Ownership of such intellectual property may generate a competitive advantage for your business. By protecting your work, you can generally exclude other businesses from using your ideas. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
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).
For example, an owner of the copyright of a song has the exclusive right to publicly perform that song (among the rights granted by statute to copyright owners). That person can legally prevent others from publicly performing the song.
Positive Impact of Intellectual Property Rights on the Economy
Countries know that safeguarding intellectual property rights fosters economic growth, provides incentives for technological innovation, and attracts investment that will create jobs and opportunities for all their citizens. Intellectual property protections are also critical to consumers. Most advances in transportation, agriculture and health care would not exist without strong intellectual property support.
A country like India which is one of the most developing economies in the world must focus on raising productivity in the market. India has always been known for outstanding services to the rest of the world. One can increase productivity by improving technology and method. Innovation needs investments, it required a great amount of investment, these are expensive but have an important role in investment. We can see and learn from developed countries like the USA and Japan in which the rate of development increased by 5 times after the implementation of Intellectual property laws.
After the introduction of Trade-Related Intellectual Property Rights (“TRIPS”) the market started changing. The act started to provide space for operation and opportunities to the companies for innovations. The private sector has started investing in Research and development. After the implementation of TRIPS, the number of patents filled in India has increased.
What is a patent?
A patent 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.
What kind of protection does a patent offer?
In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner’s consent.
What kind of protection does a patent offer?
In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner’s consent.
The protection is granted for a limited period, generally 20 years from the filing date of the application.
What can be patentable?
- Firstly, the invention must be novel, meaning thereby that the Invention must not be in existence.
- Secondly, the Invention must be non- obvious, i.e., the Invention must be a significant improvement to the previous one; mere change in technology will not give the right of the patent to the inventor.
- Thirdly, the invention must be useful in a bonafide manner, meaning thereby that the Invention must not be solely used in any illegal work and is useful to the world in a bonafide manner.
What is copyright?
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
What can be protected using copyright?
Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:
- literary works such as novels, poems, plays, reference works, newspaper articles;
- computer programs, databases;
- films, musical compositions, and choreography;
- artistic works such as paintings, drawings, photographs, and sculpture;
- architecture; and
- advertisements, maps, and technical drawings.
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation or mathematical concepts as such. Copyright may or may not be available for a number of objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
How long does a copyright last?
In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is 60 years in addition to the author’s lifespan. Where there are multiple authors, the term is 60 years post the death of the last author.
What are the rights of the copyright owners?
- Right to reproduce the work
- Right to sell
- Right to create derivative work
- Right to publicly perform his work
- Right to translate his work in any other language
- Right of Paternity
- Right to Distribute his work
What is Trademark?
The term trademark refers to a recognizable insignia, phrase, word, or symbol that denotes a specific product and legally differentiates it from all other products of its kind. A trademark exclusively identifies a product as belonging to a specific company and recognizes the company’s ownership of the brand. Trademarks are generally considered a form of intellectual property and may or may not be registered.
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).
Grounds For Refusal of Registration
- It frauds the public or causes confusion.
- There is any matter to hurt religious susceptibility.
- There is an obscene or scandalous matter.
- Its use is prohibited. It provides that if a mark contains exclusively of (a) the shape of goods which form the nature of goods or, (b) the shape of good which is needed to obtain a technical result or, (c) the shape of goods which gives substantial value of goods then it shall not be registered as trademark.
What kinds of trademark can be registered?
A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features – the possibilities are almost limitless.
How long does trademark protection last?
The term of trademark registration can vary, but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders.
| Copyright | Patents | Trademark |
| The Copyright Act, 1957 | Trade Marks Act, 1999 | The Patents Act, 1970 |
| Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other works. | Inventions, such as processes, machines, manufactures, compositions of matter as well as improvements to these. | Any word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. |
| A work must be original, creative, and fixed in a tangible medium. | An invention must be new, useful, and nonobvious. | A mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good) |
| In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is 60 years in addition to the author’s lifespan. Where there are multiple authors, the term is 60 years post the death of the last author. | Validity for 20 years starting from the day the application is first made. It is also a territorial right and therefore it is effective only within the territory of India. Separate patents required to be filed for each country where protection is required. | Validity for 10 years can be made perpetual by renewing the trademark every 10 years. Territorial in nature to claim rights should be applied to each country individually. |
| No symbolic representation to show registration. | No symbolic representation to show registration. | Used when registration is in process: ™ Used when registration is complete: ® |
REFERNCE
- https://www.upcounsel.com/intellectual-property-examples
- https://www.wipo.int/about-ip/en/
- https://www.inc.com/encyclopedia/intellectual-property.html
- Dr. B.L. Wadehra’s book on “Law relating to intellectual property”
Aishwarya Says:
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
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