Introduction
Intellectual Property refers to creation of an idea through one’s own intellect, innovation in various fields such as music industry, literary and art, designs and symbols that and there are various laws to protect it. The laws protect the owner exclusively protecting their intellectual property. These are intangible in nature. The common types of Intellectual Property Rights are Patent, copyrights, trademark, designs, geographical indications, etc. It plays a vital role in the economy. IPR is a strong tool for protection of investment, time, money invested by the creator/ inventor of an IP, as it grants the exclusivity to the owner for a certain period of time for use of their invention. It paves the way for economic development and economic growth. Its ineffective implementation may hamper the economic, technical developments. The present article highlights various terms of IPR such as patents, trademark, copyright, etc. with their corresponding rules, regulations and their need to protect has been discussed in brief.
Keyword: Intellectual Property.
Definition of Intellectual Property
The word Intellectual property is related to human mind applied for creation/invention. Multiple effort, money, time, etc are required to invent or create something new which is intangible in nature. As per law, legal rights are given to the creators for the economic benefits of their invention.
Types of Intellectual Property
On the basis of type of invention/ creation of human mind the intellectual property rights can be classified as follows:
- Patents
- Trademarks
- Copyright
- Industrial designs
- Geographic Indications of sources
Patents
Patent is an exclusive right granted for an invention to exclude others from making, selling of an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention.
Trademark
A trademark is a type of intellectual property consisting of a recognizable sign, design, or phrase that identifies a product or service from one source and distinguishes it from others. The owner of a trademark is an individual or a business organization. The trademark can be placed on the package, label, coupon, or on the product itself. The symbols ™ (symbol) and
® (symbol) can be used as symbols. The latter is used only by the owner of a trademark at the time of registration.
Copyright
A copyright is a type of intellectual property that gives the owner the exclusive right to display, adapt and perform a creative work, usually for a limited period of time. These are original works of literature, musical and artistic works, films and sound recordings, all of which are copyrighted under Indian law.
Section 13 of the Intellectual Property Act, 1957 protects literary works, dramatic works, musical works, creative works, motion pictures and sound recordings.
Section 14 of the Act empowers the employer or employer to exercise these rights. These rights include, among other things, the ability to adapt, reproduce, reproduce, interpret and communicate to the public.
Industrial Designs
Industrial design is a design that adds decorative or artistic value to a product and is then produced industrially. It can be three-dimensional (3D) like shapes, or two-dimensional (2D) like wallpaper or fabric patterns that serve a decorative purpose.
Geographical Indication
The theory behind a geographical indication is that the characteristics of a product are derived from the location of production in question. Geographical indications are a sort of intellectual property right that are primarily utilized for protecting a product with relation to their geographical origin. Geographical indication plays a crucial role in preserving ethnic variety and identity, as it is closely linked to the conventional processes of production and cultural
treasures of the specific region to which the product belongs. As such, it serves to both promote and preserve these customs.
Laws governing Intellectual Property
Intellectual Property Rights in India are governed under the following Acts:
- The Trademarks Act, 1999
- The Copyright Act, 1957
- The Designs Act, 2000
- The Patents Act, 1970 (amended in 2005)
- The Geographical Indication of Goods (Registration and Protection) Act,1999
- The Protection of Plant Varieties and Farmers Rights Act, 2001
The Trademarks Act, 1999
The first set of laws governing trademarks in India was enacted in 1940. Following the growth of trade and commerce in India, the legislature replaced the 1940 Act with the Trade Marks and Trademarks Act, 1958 and Trade Marks and Trade Marks Act, 1959.These actions were created when the Act was passed with a view to extending the best protection to trademarks.
Trademark defined under Section 2 (1) (zb) of the Trademarks Act, 1999 as s a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and—
- in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and
- in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;
NEED FOR TRADEMARK
A trademark safeguards one’s brand and gives the means to stop someone from profiting off the brand. The shape of items, their packaging, colour, etc.
PROTECTION PERIOD OF TRADEMARK
Once a trademark is registered, it has permanent rights that are renewed from time to time to ensure that the right is not lost. A registered trademark in India can be renewed multiple times on payment of official fees, otherwise the trademark registration can be cancelled. A renewal under section 25 of the Trade Marks Act, 1999 is valid for 10 years. It is recommended to start the renewal process six months before the expiry of trademarks to avoid losing
protection. If a trademark has been revoked, it can be reinstated by filing an application for trademark registration in India online or on paper at the trademark offices in Mumbai, Chennai, Kolkata, New Delhi, or Ahmedabad for return within six months of cancellation.
Trademark infringement
Trademark infringement is the violation of the exclusive right granted to a registered trademark owner. Section 29 of the Trademark Act,1999 talks about the Infringement of registered trademarks.
The case of The Coca-Cola Company v Bisleri International Pvt. Ltd.1 provides an understanding of the jurisdictional issue, which can be classified as trademark infringement. Ltd. The disputed record is related to the violation of the trademark “MAAZA”, where there is an agreement to indicate the name of the club and the rights related to the recognition of
intellectual rights, goodwill, and other more for drinking, known as MAAZA. However, the rights sold were limited to the rights of India. In addition, the defendants filed an application to register the said trademark in Türkiye in 2001, and also wanted to export mango fruit drinks to Türkiye. This situation was not desired by the plaintiffs, so the Coca-Cola Company requested a permanent injunction to demand damages or compensation due to trademark
infringement. The Delhi High Court ruled in favor of the petitioner and held that the export of goods from a particular country is as good as the sale of the goods in the particular country where the goods are shipped.
Remedies Against Infringement
The remedies given for a trademark infringement can be civil or criminal remedies.
- Civil Remedies: When there are cases of violation, it is possible to submit to a competent court no less than the district court for the issuance of temporary orders, Anton Piller orders, compensation, financial accounting, confiscation and destruction of property using a trademark and legal fees.
- Criminal Remedies: A trademark infringer can also be sued (Civil and criminal actions can be initiated simultaneously, during civil proceedings the plaintiff receives recovery for himself while the plaintiff is serving, the plaintiff seeks to punish the offender. Criminal Prosecution can be obtained by following two procedures-
- Complaint before Magistrate
- Direct complaint before the Police
Under the Trademark Act,1999 following sections can be invoked;
- Penalty under Section 103 of Trademarks Act: Anyone who misrepresents a trade mark or misappropriates goods or services shall be punished with imprisonment for six months, not less than six months, but not more than three years, and to a fine of at least NOK 100 million. Rial remained. 50,000 but up to Rs. 2,00,000.
- Penalty under Section 104 of Trademarks Act: Whoever assists the accused person by selling, supplying or paying such goods, keeping such goods for sale or in any other way, shall be punished with imprisonment for a term not exceeding six months. shorter than six months. 6 years and fine which shall not be less than Rs.50,000 but may extend to Rs. 2,00,000.
- Penalty under Section 105 of Trademarks Act: If a person commits any of the offenses set forth in Article 103 or 104, the second and subsequent offenses shall be punishable with imprisonment for a term not exceeding one year, not more than 3 A fine of not less than 100 riels. 1,00,000 but up to Rs. 2,00,000.
The Copyright Act,1957
Copyright is a type of IPR which gives exclusive rights to the authors who have original works of literature, artistic works, cinematographic films. It is incorporeal in nature. The owner has two options for disposing its property either licensing or outright sale.
Protection Period for Copyright
The duration of copyright protection in India depends on the type of work when it was created. Literary or musical works, other than photographs, are granted copyright for the lifetime of the author, then 60 years from the year of the author’s death. If the work is not
published, performed, or offered for sale or distribution during the lifetime of the author, the copyright expires from the end of the year in which these works relate to the work of copyright protection period for films, images and computer games for 60 years from the end of the year in which the work is made available to the public with the consent of the copyright owner.2
International Conventions Protecting Intellectual Property Rights
The Berne Convention was ratified in 1886, which deals with the protection of the works and rights of authors. There is a way to manage how their work is used, by whom, and how. In the beginning only 10 countries signed up, but now there are 180 signatories. Countries that have signed the Berne Convention can only become members of the World Trade Organization.
1. Copyright and Berne Convention
The Berne Convention deals with copyright. It was signed in 1886. Copyright laws protect the economic rights and moral rights of the author. The Berne Convention was referred to by the Delhi High Court in Amarnath Sehgal v. Union of India (2005)3. In this case, the plaintiffs sold the murals to the Government of India for display at
Vigyan Bhawan, after which the Government removed the murals from Vigyan Bhawan and dumped them in a shop. The mural was also damaged due to government mistreatment. The plaintiff argued that the mistreatment of the mural constituted a violation of his moral rights. The court referred to article 6bis of the Bern Convention, which has the obligation to respect the moral rights of the countries of the copyright. Thus, the court ruled that the petitioner had the right to receive frescoes with damage.
It states that all works, except photographic and cinematographic works, must be protected for at least 50 years after the death of their creator, although the parties can set a longer period: for photographs, the treaty provides for a minimum period of 25 years from the year of the image’s creation, and for cinematographic works, 50 years from its first exposure or 50 years from its creation.
2.Paris Convention for the Protection of Industrial Policy (PCPIP)
Prior to the enactment of the Berne Convention, the Paris Convention for the Protection of Industrial Property was enacted in 1883. It was the first major international convention aimed at protecting the intellectual property rights of the inventors and creators. It covered patents, industrial designs, service marks, and geographical indications. It provides minimum standards for the protection which need to be supported by the signatory countries.
Importance of Protecting IP
Protecting Intellectual Property (IP) is crucial for individuals, businesses, and nations. Here are key reasons highlighting the importance of IP protection:
Economic Benefits:
- Encourages innovation and R&D investment
- Generates revenue through licensing and royalties.
- Creates jobs and stimulates economic growth
- Protects brand value and reputation
- Attracts foreign investment and partnerships
Reputation and Trust
- Builds trust with customers and partners
- Protects brand reputation and goodwill
- Prevents counterfeiting and piracy
- Ensures quality and authenticity
- Supports ethical business practice
National Perspective
Protecting IP encourages innovation and creativity. It allows the inventors, creators, authors etc from the infringement of their rights. It protects the investments in research & development of one’s invention. It fosters the economic growth and job creation. It safeguards national interests and security.
International Perspective
It facilitates global trade and commerce. It encourages cross-border collaboration and innovation. It harmonizes international IP standards, protects the brand value and reputation, protects foreign investments and intellectual property.
Conclusion
Protecting intellectual property rights (IPRs) is essential to stimulating innovation, creativity, and economic growth both at home and abroad. At the national level, strong IPR protection encourages local creators and businesses to invest in new ideas and products, knowing that their efforts will be protected from infringement. This not only creates jobs and stimulates the economy, but also increases the country’s competitiveness in the world market. From an international perspective, it is important to harmonize the protection of intellectual property rights across borders as companies operate in an increasingly globalized economy.
International agreements, such as the World Trade Organization’s TRIPS Agreement, help establish common standards for protecting intellectual property rights and make it easier for companies to navigate different legal situations. This collaboration promotes fair trade, reduces the risk of counterfeiting, and ensures that creators can benefit from their work, regardless of where it is made or sold. IPR protection is essential for the development of innovation and creativity, promoting economic growth and promoting international trade. Creating a reliable foundation that supports and stimulates creators and business requires domestic and international efforts.
Reference
- (2009) 164 DLT 59
- Handbook of Copyright Law, Government of India Department for Promotion of Industry and Internal Trade Ministry of Commerce and Industry
- 117(2005) DLT717
