Q.no.

1 Protecting the created intellectuality is a challenge now a days, because of the

“cloning of the one’s idea is easier than the new creation” – How this statement is
realistic in practicing business?

Ans. Intellectual property rights ("IPR") refer to the legal ownership of intangible mental
creations such as inventions, literary and artistic works, and commercial symbols, names, and
pictures. IPR in India is critical for economic growth and competitiveness, and the
government has made great progress in recent years to modernize its IPR framework. The
three basic categories of IPR are trademarks, patents, and copyrights. The Indian government
has implemented different laws and regulations to keep IP infringement and enforcement
in India in check.

IPRs have taken on substantial importance in India's legal landscape. India has ratified the
Accord on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), which is part of
the agreement that established the World Trade Organization ("WTO"). As a result, Indian IP
legislation, enforcement mechanisms, and dispute resolution methods are now fully TRIPS-
compliant.

The following acts primarily govern IP protection in India:

 The Trade Marks Act, 1999

 The Patents Act, 1970
 The Copyright Act, 1957
 The Designs Act, 2000
 The Geographical Indications of Goods (Registration and Protection) Act, 1999
 The Semiconductor Integrated Circuits Layout Design Act, 2000
 The Protection of Plant Varieties and Farmers' Rights Act, 2001
 The Information Technology Act, 2000.

These statutes establish a comprehensive legal framework for the protection of many types of
intellectual property in India. For instance, the Trademarks Act, 1999 oversees trademark
laws and regulations in India, while the Patents Act, 1970 covers patent grants for
inventions.

The Indian government has also established specialized organizations, such as the Intellectual
Property Appellate Board ("IPAB") and the National Intellectual Property Rights Policy, to
monitor IPR law enforcement via IP litigation in India and to foster innovation and
creativity in the country. Despite these efforts, there are still issues and concerns about
effective IPR infringement and enforcement in India. Let's look into the different types of
IPR in depth.

What are IPRs?

IPRs in India are protected by several laws and regulations, including the Trademarks Act,
Patents Act, and Copyright Act. These laws strive to protect creators and inventors by
granting them exclusive rights to their creations or innovations, as well as legal recourse in
the event of an infringement.

Trademark Protection
Trademarks are unique signs, symbols, or logos that are used to identify goods or services.
Trademarks in India are registered with the Controller General of Patents, Designs, and Trade
Marks. Once a trademark is registered, the owner has the exclusive right to use the mark and
can sue anyone who uses it without permission. However, trademark protection can be
revoked if the owner does not utilize the mark for five years or more.

Patent Protection

Patents safeguard new ideas or discoveries by granting the creator the exclusive right to
manufacture, use, or sell the invention for a set time. The Indian Patent Office grants patents
in India. However, there are some exemptions, including agricultural methods, commercial
processes, and computer programs, which are not patentable in India. There is also a need
that inventions to be non-obvious and have a practical application.

Copyright Protection

Original artistic, literary, or musical works, such as books, films, pictures, and software, are
protected by copyright. In India, copyright is granted automatically with the production of a
work, however, registration is encouraged to give proof of ownership in the event of an
infringement. The copyright holder has the sole right to reproduce, distribute, and exhibit the
work and may sue anybody who does so without permission.

It is crucial to recognize that they are subject to IP litigation in India, which can be
complicated. For instance, in disputes regarding trademark laws and regulations in India,
there may be disagreements about the resemblance of the marks or whether the claimed
infringement is using the mark in a way that confuses the marketplace. As a result, while
dealing with IPRs, it is best to acquire legal counsel. The Indian government has taken
several initiatives to strengthen IP protection in the country, including the establishment of
specialized intellectual property tribunals, increased enforcement, and the formulation of a
national IPR policy. These efforts attempt to stimulate innovation and creativity in India
while also protecting innovators' and inventors' rights.

Conclusion

IPRs in India are crucial for economic growth and competitiveness, and the Indian
government has made tremendous progress in modernizing its IPR system. The Trade Marks
Act, Patents Act, and Copyright Act, among other laws and regulations, constitute a
comprehensive legal framework in India for the protection of many types of IP. While there
are concerns about effective IPR infringement and enforcement in India, the government has
taken several steps to strengthen IP protection in the country, including the establishment of
specialized intellectual property tribunals, increased enforcement, and the development of a
national IPR policy. To protect their rights, creators, and inventors must grasp the many sorts
of IPRs and obtain legal advice when dealing with them.
Q.no.2 Describe the types of inventions which are not patentable in India with the
suitable examples.

Ans. Section 3 And 4 Of The Indian Patent Act

Section 3 and Section 4 of the Patent Act is highly debatable and deals with the list of
exclusions that are non-patentable that do not satisfy the above conditions. Following are not
the “inventions” under the meaning of this act:

(a) Inventions that are frivolous and contrary to natural laws.

Inventions which are frivolous or contrary to well established natural laws.

Example– Inventions that are against the natural laws that are any machine giving 100%
efficiency, or any machine giving output without an input cannot be considered as obvious
and cannot be patented.

b) Inventions which go against public morality

Inventions in which the primary or intended use or commercial exploitation of which could
be contrary to public order or morality (that is against the accepted norms of the society and
is punishable as a crime) or which causes serious prejudice to human, animal or plant life or
health or to the environment.

Example– As in Biotechnology, termination of the germination of a seed by inserting a gene

sequence that could lead to the disappearance of butterflies, any invention leading to theft or
burglary, counterfeiting of currency notes, or bioterrorism.

(c) Inventions that are a mere discovery of something that already exists in nature.

The mere discovery of a scientific principle or the formulation of an abstract theory or

discovery of any living or non-living substances occurring in nature.

Explanation– Mere discovery of something that is already existing freely in nature is a

discovery and not an invention and hence cannot be patented unless it is used in the process
of manufacturing an article or substance. For instance, the mere discovery of a micro-
organism is not patentable.

(d) The mere discovery of a form already existing in nature does not lead to enhancement
of efficacy.

The mere discovery of a new form of a known substance which does not result in the
enhancement of the known efficacy of that substance or the mere discovery of any new
property or new use for a known substance or of the mere use of a known process, machine
or apparatus unless such known process results in a new product or employs at least one new
reactant.

Explanation: For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites,
pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other
derivatives of known substance shall be considered to be the same substance, unless they are
significantly different in terms of efficacy.

(e) Mere admixing of mixtures leading in the aggregation of properties are non-
patentable.

A substance obtained by a mere admixing of two or more mixtures resulting only in the
aggregation of the properties of the components thereof or a process for producing such
substance is not considered the invention.

Explanation- mere addition of mixtures is non-patentable unless this satisfies the requirement
of synergistic effect i.e., interaction of two or more substances or agents to produce a
combined effect greater than the separate effect.

(f) Mere aggregation or duplication of devices working in a known way is not an invention.

The mere aggregation or re-arrangement or duplication of known devices each functioning

independently of one another in a known way.

Explanation- mere improvement on something or combinations of different matters known

before cannot be patentable unless this produces a new result or article.

(h) Horticulture or agricultural method is non-patentable.

A method related to agriculture or horticulture.

Explanation- a method of producing plants like cultivation of algae and mushrooms or

improving the soil is not an invention and cannot be patentable.

(i) Medicinal, curative, prophylactic, diagnostic, therapeutic for treating diseases in human
and animals are non-patentable.

Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or
other treatment of human beings or any process for a similar treatment of animals to render
them free of disease or to increase their economic value or that of their products.

Explanation– those medicinal methods administering medicines orally or injecting it,

surgical methods like stitch free surgeries, curative methods as curing plaques etc does not
fall under the ambit of the invention and are non- patentable.
Case law

In Mayo Collaborative Services V. Prometheus Laboratories, Inc20.

In this case, the US Supreme Court said that “diagnostic and therapeutic methods (which
includes the treatment or cure of diseases) is not patentable as it claims a law of nature”.

(j) Essential biological processes for the production or propagation of animals and plants
is not an invention.

Plants and animals in whole or any part thereof other than micro-organisms but including
seeds, varieties and species and essentially biological processes for production or propagation
of plants and animals.

(k) Simple mathematical or business or computer programs are not an invention.

A mathematical or business method or a computer program per se or algorithms;

Explanation– any mathematical calculation, any scientific truth or act of mental skills any
activities related to business methods or algorithms (which are like the law of nature) cannot
be patented.

(l) Aesthetic creation is not an invention.

A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
including cinematographic works and television productions.

Explanation– such activities like writings, painting, sculpting, choreographing,

cinematographing all these which are related to creativity cannot be patented and fall under
the gamut of Copyright Act, 1957.

(m) Mental act, rule or method is not an invention.

A mere scheme or rule or method of performing mental act or method of playing a game.

Explanation- playing a game such as chess, sudoku etc are not considered as inventions
rather these are mere brain exercises and hence are not patented.

(n) Presentation of information is non-patentable.

Explanation- a mere presentation of information by tables, chars is not an invention and

hence are not patentable, for example, railway timetables, calendars etc.
(o) The topography of integrated circuits is non-patentable

Such as semiconductors used in microchips are not patented.

(p) Traditional Knowledge is not an invention.

An invention which in effect, is traditional knowledge or which is an aggregation or

duplication of known properties of the traditionally known component or components.

Explanation- the traditional knowledge is know-how, skills, that is passed from generations
to generations of a community and is already known cannot be patented for example the
antiseptic properties of turmeric.

(q) Atomic-Energy inventions are non -patentable.

Section 4 deals with inventions relating to atomic energy, that are also not patentable and that
fall within sub-section (1) of section 20 of the Atomic Energy Act, 1962.

Q.no.3 What is Trademark? Explain the different types of trademarks with examples.
Differentiate between Trademark and Design. What is the process of registrating a
trademark?

Ans. A “Trademark” [TM] is defined under Section 2(zb) of the Indian Trademarks Act,
1999, as 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 a
shape of goods, their packaging, and combination of colors.”

Simply put, a trademark may include a device, brand, heading, label, ticket, name, signature,
word, letter, numeral, shape of goods, packaging, or combination of colors or combinations.
(Section 2(m)). The only qualification for a trademark is its capacity to distinguish one
person’s goods or services from another.

There is usually a lot of confusion surrounding the kind of trademarks that can be registered
under the Trademarks Act 1999. While choosing an apt brand that can be registered might
seem a long-drawn process, it is straightforward, and the trick is conversing with what cannot
be registered.

The Trademarks Act (1999) makes this easy by dividing what cannot be registered into two
grounds: absolute grounds of refusal (Section 9) and relative grounds of refusal (Section 11).
1. Word marks:

Word marks may be words, letters, or numerals. A word mark only gives the proprietor a
right to the word, letter, or numerical, and no right is sought concerning the representation of
the mark.

2. Device marks:

A device mark uniquely represents a logo, label, or design in the image format and may also
contain a word or a combination of words.

3. Service marks:

A service mark is nothing but a mark that distinguishes one person’s services from another.
Service marks do not represent goods but the services offered by a person/ company.

They are used in a service business where actual goods under the mark are not traded. It is a
mechanism available to protect marks used in the service industry.

Thus companies providing services like computer hardware and software assembly and
maintenance, restaurant and hotel services, courier and transport, beauty and health care,
advertising, publishing, education, and the like are now in a position to protect their names
and marks from being misused by others. As service marks, the substantive and procedural
rules governing the service marks are fundamentally the same.

4. Collective Marks:

Marks being used by a group of companies can now be protected by the group collectively.
Collective marks inform the public about a particular product feature used for the collective
mark. The owner of such marks may be an association, public institution, or
cooperative. Collective trademarks are also used to promote particular products with certain
characteristics specific to the producer in a given region.

5. Certification Marks:

Certification marks are used to define standards. They assure the consumers that the product
meets specific prescribed standards. A certification mark on a product indicates that the
product has successfully passed a standard test specified. It assures the consumer that the
manufacturers have gone through an audit process to ensure the quality of the product.

For example, Toys, Electrical goods, etc., have a marking that indicates the product’s safety
and quality.

The difference between the certification mark and the collective mark is that a particular
enterprise or association member uses the collective mark. In contrast, a certification mark
may be used by anybody who meets the defined standards.
6. Well-known marks:

When a mark is easily recognized among a large percentage of the population, it achieves the
trademark status of a well-known mark. Well-known marks enjoy more excellent protection,
and persons will not be able to register or use marks imitations of well-known trademarks. A
trademark needs to be known/recognized by a relevant section of people to be well-known.
These people include actual or potential customers, people involved in the distribution, and
business service dealing with the goods/services. Now you can declare your mark as well-
known and learn more details here.

7. Unconventional Trademarks:

The trademarks that get recognition for their inherently distinctive feature are
unconventional.

Unconventional trademarks include the following categories:

Colour Trademark: If a particular color has become a distinctive feature indicating the
goods of a specific trader, it can be registered as a trademark. For example, Red Wine.

Sound Marks: Signs that are perceived by hearing and distinguishable by their distinctive
and exclusive sound can be registered as sound marks. For example, Musical notes.

Shape Marks: When the shape of goods or packaging has some distinctive feature, it can be
registered. For example, Ornamental Lamps.

Smell Marks: When the smell is distinctive and cannot be mistaken for an associated
product, it can be registered as a smell mark. For example, Perfumes.

A design registration protects any new and innovative ornamental design of an article of
manufacture. A trademark registration protects a word or words, name, symbol or drawing
that is utilised in commerce to distinguish one source of goods or services from that of
another.
Trademark Registration Process Flowchart
Q.no. 4 Hypothetically, you are setting a new cold drink manufacturing company with
new and innovative machineries and recipes. You plan to use your knowledge of IPR to
safeguard your new company from old bigshot companies as well as new building
companies. Describe in details, what all rights you will register and how you will benefit
out of it?

Ans. IP Rights protect several aspects of a business and each type of IP Right carries its own
advantages. The scope of IP Rights is very wide, but the prime areas of intellectual property
which are of utmost importance for any startup venture are as follows:

 Trademarks
 Patents
 Copyrights and Related Rights
 Industrial Designs
 Trade Secrets

TRADEMARKS

The Trade Marks Act 1999 ("TM Act") provides, inter alia, for registration of marks, filing
of multiclass applications, the renewable term of registration of a trademark as ten years as
well as recognition of the concept of well-known marks, etc. It is pertinent to note that the
letter "R" in a circle i.e. ® with a trademark can only be used after the registration of the
trademark under the TM Act.

Trademarks means any words, symbols, logos, slogans, product packaging or design that
identify the goods or services from a particular source. As per the definition provided under
Section 2 (zb) of the TM Act, "trade mark" means 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 colors.

The definition of the trademark provided under the TM Act is wide enough to include non-
conventional marks like color marks, sound marks, etc. As per the definition provided under
Section 2 (m) of the TM Act, "mark" includes a device, brand, heading, label, ticket, name,
signature, word, letter, numeral, shape of goods, packaging or combination of colors or any
combination thereof.

Accordingly, any mark used by the startup in the trade or business in any form, for
distinguishing itself from other, can qualify as trademark. It is quite significant to note that
the Indian judiciary has been proactive in the protection of trademarks, and it has extended
the protection under the trademarks law to Domain Names as demonstrated in landmark cases
of Tata Sons Ltd v Manu Kosuri & Ors [90 (2001) DLT 659] and Yahoo Inc. v Akash
Arora [1999 PTC 201].

Points to Consider While Adopting a Trademark

Any startup needs to be cautious in selecting its trade name, brands, logos, packaging for
products, domain names and any other mark which it proposes to use. You must do a proper
due diligence before adopting a trademark. The trademarks, can be broadly classified into
following five categories:
 a. Generic
b. Descriptive
c. Suggestive
d. Arbitrary
e. Invented/Coined

Generic marks means using the name of the product for the product, like "Salt" for salt.

Descriptive marks means the mark describing the characteristic of the products, like using the
mark "Fair" for the fairness creams.

Suggestive marks means the mark suggesting the characteristic of the products, like "Habitat"
for home furnishings products.

Arbitrary marks means mark which exist in popular vocabulary, but have no logical
relationship to the goods or services for which they are used, like "Blackberry" for phones.

The invented/ coined marks means coining a new word which has no dictionary meaning,
like "Adidas". The strongest marks, and thus the easiest to protect, are invented or arbitrary
marks. The weaker marks are descriptive or suggestive marks which are very hard to protect.
The weakest marks are generic marks which can never function as trademarks.

India follows the NICE Classification of Goods and Services for the purpose of registration
of trademarks. The NICE Classification groups products into 45 classes (classes 1-34 include
goods and classes 35-45 include services). The NICE Classification is recognized in majority
of the countries and makes applying for trademarks internationally a streamlined process.
Every startup, seeking to trademark a good or service, has to choose from the appropriate
classes, out of the 45 classes.

While adopting any mark, the startup should also keep in mind and ensure that the mark is
not being used by any other person in India or abroad, especially if the mark is well-known. It
is important to note that India recognizes the concept of the "Well-known Trademark" and
the principle of "Trans-border Reputation".

Example of well-known trademarks are Google, Tata, Yahoo, Pepsi, Reliance, etc. Further,
under the principle of "Trans-border Reputation", India has afforded protection to trademarks
like Apple, Gillette, Whirlpool, Volvo, which despite having no physical presence in India,
are protected on the basis of their trans-border reputation in India.

Enforcement of Trademark Rights

Trademarks can be protected under the statutory law, i.e., under the TM Act and the common
law, i.e., under the remedy of passing off. If a person is using a similar mark for similar or
related goods or services or is using a well-known mark, the other person can file a suit
against that person for violation of the IP rights irrespective of the fact that the trademark is
registered or not.

Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action

against violation of trademarks in India. The prior adoption and use of the trademark is of
utmost importance under trademark laws.
The relief which a court may usually grant in a suit for infringement or passing off includes
permanent and interim injunction, damages or account of profits, delivery of the infringing
goods for destruction and cost of the legal proceedings. It is pertinent to note that
infringement of a trademark is also a cognizable offence and criminal proceedings can also be
initiated against the infringers.

PATENTS

Patent, in general parlance means, a monopoly given to the inventor on his invention to
commercial use and exploit that invention in the market, to the exclusion of other, for a
certain period. As per Section 2(1) (j) of the Patents Act, 1970, "invention" includes any new
and useful;

i. art, process, method or manner of manufacture;

ii. machine, apparatus or other article;
iii. substance produced by manufacture, and includes any new and useful
improvement of any of them, and an alleged invention;

The definition of the word "Invention" in the Patents Act, 1970 includes the new product as
well as new process. Therefore, a patent can be applied for the "Product" as well as "Process"
which is new, involving inventive step and capable of industrial application can be patented
in India.

The invention will not be considered new if it has been disclosed to the public in India or
anywhere else in the world by a written or oral description or by use or in any other way
before the filing date of the patent application. The information appearing in magazines,
technical journals, books etc, will also constitute the prior knowledge. If the invention is
already a part of the state of the art, a patent cannot be granted. Examples of such disclosure
are displaying of products in exhibitions, trade fairs, etc. explaining its working, and similar
disclosures in an article or a publication.

It is important to note that any invention which falls into the following categories, is not
patentable: (a) frivolous, (b) obvious, (c) contrary to well established natural laws, (d)
contrary to law, (e) morality, (f) injurious to public health, (g) a mere discovery of a scientific
principle, (h) the formulation of an abstract theory, (i) a mere discovery of any new property
or new use for a known substance or process, machine or apparatus, (j) a substance obtained
by a mere admixture resulting only in the aggregation of the properties of the components
thereof or a process for producing such substance, (k) a mere arrangement or rearrangement
or duplication of known devices, (l) a method of agriculture or horticulture, and (m)
inventions relating to atomic energy or the inventions which are known or used by any other
person, or used or sold to any person in India or outside India. The application for the grant of
patent can be made by either the inventor or by the assignee or legal representative of the
inventor. In India, the term of the patent is for 20 years. The patent is renewed every year
from the date of patent.

Use of Technology or Invention

While using any technology or invention, the startup should check and confirm that it does
not violate any patent right of the patentee. If the startup desires to use any patented invention
or technology, the startup is required to obtain a license from the patentee.
Enforcement of Patent Rights

It is pertinent to note that the patent infringement proceedings can only be initiated after grant
of patent in India but may include a claim retrospectively from the date of publication of the
application for grant of the patent. Infringement of a patent consists of the unauthorized
making, importing, using, offering for sale or selling any patented invention within the India.
Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law.
Like trademarks, the relief which a court may usually grant in a suit for infringement of
patent includes permanent and interim injunction, damages or account of profits, delivery of
the infringing goods for destruction and cost of the legal proceedings.

COPYRIGHT

Copyright means a legal right of an author/artist/originator to commercially exploit his

original work which has been expressed in a tangible form and prevents such work from
being copied or reproduced without his/their consent.

Under the Copyright Act, 1957, the term "work", in which copyright subsists, includes an
artistic work comprising a painting, a sculpture, a drawing (including a diagram, a map, a
chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship,
dramatic work (recitation, choreographic work), literary work (including computer
programmes, tables, compilations and computer databases), musical work (including music
as well as graphical notations), sound recording and cinematographic film.

In the case of original literary, dramatic, musical and artistic works, the duration of copyright
is the lifetime of the author or artist, and 60 years counted from the year following the death
of the author and in the case of cinematograph films, sound recordings, posthumous
publications, anonymous and pseudonymous publications, works of government and works of
international organizations are protected for a period of 60 years which is counted from the
year following the date of first publication.

In order to keep pace with the global requirement of harmonization, the Copyright Act, 1957
has brought the copyright law in India in line with the developments in the information
technology industry, whether it is in the field of satellite broadcasting or computer software
or digital technology.

Registration of Copyright

In India, the registration of copyright is not mandatory as the registration is treated as mere
recordal of a fact. The registration does not create or confer any new right and is not a
prerequisite for initiating action against infringement. The view has been upheld by the
Indian courts in a catena of judgments. Despite the fact that the registration of copyright is
not mandatory in India and is protectable through the International Copyright Order, 1999, it
is advisable to register the copyright as the copyright registration certificate is accepted as a
"proof of ownership" in courts and by police authorities, and acted upon smoothly by them.

Enforcement of Copyright in India

Any person who uses the original work of the other person without obtaining license from the
owner, infringes the copyright of the owner. The law of copyright in India not only provides
for civil remedies in the form of permanent injunction, damages or accounts of profits,
delivery of the infringing material for destruction and cost of the legal proceedings, etc, but
also makes instances of infringement of copyright, a cognizable offence punishable with
imprisonment for a term which shall not be less than six months but which may extend to
three years, with a fine which shall not be less than INR 50,000 but may extend to INR
200,000

For the second and subsequent offences, there are provisions for enhanced fine and
punishment under the Copyright Act. The (Indian) Copyright Act, 1957 gives power to the
police authorities to register the Complaint (First Information Report, i.e., FIR) and act on its
own to arrest the accused, search the premises of the accused and seize the infringing material
without any intervention of the court.

INDUSTRIAL DESIGNS

As per the definition given under Section 2(d) of the Designs Act, 2000, "design" means only
the features of shape configuration patterns or ornament applied to any article by any
industrial process or means whether manual mechanical or chemical separate or combined
which in the finished article appeal to and are judged solely by the eye. However, "design"
does not include any mode or principle of construction or anything which is in substance a
mere mechanical device and does not include any trademark as defined under the TM Act or
any artistic work as defined under the Copyright Act, 1957. The total period of validity of
registration of an Industrial Design under the (Indian) Designs Act, 2000 is 15 years.

Features of shape, configuration, pattern, ornament or composition of lines or colours applied

to any article, whether in two dimensional or three dimensional or in both forms, can be
registered under the (Indian) Designs Act, 2000. However, functionality aspects of a design
are not protected under the (Indian) Designs Act, 2000, as the same are subject matter of
patents.

Design of an article is not registrable in India, if it:

 is not new or original;

 has been disclosed to the public anywhere in India or in any other country by
publication in tangible form or by use in any other way prior to the filing date or
priority date of the application;
 is not significantly distinguishable from known designs or combination of known
designs; or
 comprises or contains scandalous or obscene matter.

Enforcement of Design Rights in India

The (Indian) Designs Act, 2000, only provides for civil remedies. Besides injunction,
monetary compensation is recoverable by the proprietor of the design either as contract debt
or damages. An action for infringement of design can only be initiated after the registration of
the design, however, an action for passing-off is maintainable in case of unregistered design.
TRADE SECRETS

Trade secrets includes any confidential business information which provides an enterprise a
competitive edge over others. Trade secrets encompass manufacturing or industrial secrets
and commercial secrets, formula, practice, process, design, instrument, pattern, commercial
method, or compilation of information which is not generally known or reasonably
ascertainable by other.

The unauthorized use of such information by persons other than the holder is regarded as an
unfair practice and a violation of the trade secret. There are no specific statutes under the
Indian law for the protection of trade secrets and the same are protectable under the common
law rights.

STRATEGIES FOR PROTECTION AND EXPLOITATION OF IPR FOR STARTUPS

1. Make Intellectual Property protection a priority:

Start-ups cannot afford the complete protection available under the intellectual
property regime. The first step for any startup is to evaluate and prioritize the IP
Rights involved in its business. Depending upon the type of industry involved, IP
Rights play an important role. Failure to identify or prioritize IP Rights, is likely to
create problems for startup's business, especially during negotiations with future
investors or exiting its business. Sometimes IP Rights are the only asset available with
a startup.
2. Register Intellectual Property Rights:

It is important to note that certain IP Rights like patents and designs are required to be
registered before claiming any protection under the respective statutes. On the other
hand, certain IP Rights like trademark and copyright need not be mandatorily
registered for protection under. Nevertheless, a registered IP Right carries a greater
value and acts as evidence of use of the IP Rights before courts as well as
enforcement agencies;
3. Due Diligence of IP Rights:

For any startup, it is indispensable that it does not violate IP Rights of any other
person. This will ensure safety from unwarranted litigation or legal action which can
thwart its business activities. This makes it even more important for startups to make
careful IP decisions in the initial phase and conduct proper due diligence of IP Rights,
which it is using or intends to use.
4. Implement clear and effective policies and strategies for protection of IP Rights:

It is in the long term interest of startups to have an Intellectual Property Policy for
management of various IP rights which may be presently owned, created or acquired
in future by startups. The aim of such a policy is to ensure that there are no inter-se
dispute between the promoters of the startups, which remains till date to be one of the
main concerns for failure of startups.
5. Agreements related to Intellectual Property:

It is pertinent to note that having proper documentation in the form of agreements like
non-disclosure agreements, agreements with employees or independent contractors,
can make all the difference between the success and failure of startups. Usually,
intellectual property is created either by the founders or some key employee or a third
party. The intellectual property so created, must be protected through a proper
agreement between the founder or key employee or a third party, as the case may be
and the startup. If the agreement, with founders or employees or a third party, , under
which a novel idea was/is created, is overlooked, it could create bottlenecks later after
such idea becomes successful. Accordingly, the startups need to ensure that anything
created on behalf of the startup, belongs to the startup and not the Employee or a third
party. Further, it is advisable to enter into elaborate assignments, licensing or user
agreements, and care should be taken to make provisions for all post termination IP
Right issues.
Answer the following questions in one word/ one sentence / few sentence.

Q.no. 1 What is the full form of TRIPS?

Ans. TRIPS stands for Trade-Related Aspects of Intellectual Property Rights.

Q.no. 2 What is the full form of WIPO?

Ans. WIPO stands for World Intellectual Property Organisation.

Q.no.3 For what term copyright is protected in India?

Ans. 60 years is the term.

Q.no.4 What is Intellectual Property?

Ans. Intellectual property (IP) refers to creations of the mind, such as inventions; literary
and artistic works; designs; and symbols, names and images used in commerce.

Q.no. 5 Mention any two theories for the justification of intellectual property law?

Ans. Utilitarianism; Labor Theory; Personality Theory; and Social Planning Theory.

Q.no.6 What is the difference between intellectual property and physical property?

Ans. Unlike physical property, such as real estate, jewelry or cars, IP is intangible personal
property. IP rights protect your right to use your original creation, but does not protect the
idea itself.

Q.no. 7 What do you mean by infringement of patent?

Ans. Patent infringement is the commission of a prohibited act with respect to a patented
invention without permission from the patent holder. Permission may typically be granted in
the form of a license.
Q.no.8 List out any four well known trademarks?

Ans. TATA, Bisleri, Mahindra, Toyota.

Q,no. 9 What do you mean by performer’s right?

Ans. Performers' rights under intellectual property law refer to the legal protections afforded
to performers in relation to their creative works. These rights cover a range of areas,
including the use and distribution of performances, royalties and compensation, moral rights,
and the right to attribution.

Q.no. 10 Do we get trademark full lifetime?

Ans. The validity of trademark is 10 years which can be renew before expiry of ten years by
applicant.