CHAPTER –I

INTRODUCTION OF INTELLECTUAL PROPERTY

RIGHTS

1.1. INTRODUCTION:-

There are many concepts in intellectual property law like Patent law which is

deals with the concepts of novelty and inventive step. Trademarks law which is

deals with the concepts of distinctiveness and similarity of marks and similarity of

goods. Copyright law which is deals with the concepts of originality and

reproduction of the work in any material form.

According to words of Salmond, any creation of the human mind in the tangible

form is valuable in his life for getting benefits from it3

Since, at present time intellect is an integral part of one’s personality and one’s

intellect plays an important role in deciding what sort of labour his body be

engaged into as well as what work his hands take up, it may be safely assumed

that one’s intellect is one’s property in the same way as is one’s person or one’s

bodily labour or work of one’s hands i.e. one’s skill. With this logic, one’s

intellect is exclusively his own, so is his intellectual labour and intellectual skill.

Moving a little further, if these things, namely intellect, intellectual labour and

intellectual skill are one’s property or characteristic, then anything which comes

out of an application of any or all of these three is equally one’s own. Therefore,

3
Salmond:Jurisprudence,p.422
naturally, a person should have a right to own these ‘products’ of his intellect.

Needless to say that it is this proprietary right once the product of one’s intellect,

which has been termed as one’s Intellectual Property Right.4

The intellectual property in India protected with the help of various statute which

is enacted by parliament of India, all these statutes is subject to international

conventions and conferences. Our laws relating o intellectual property right sis

also consistent with the provisions of TRIPS agreement and GATT. According to

TRIPS our law protect intellectual property for prescribed period.

1.2 INTELLECTUAL PROPERTY RIGHTS IN INDIA:-

India is as a developing country and because of globalisation, urbanisation, and

modernisation and because of growth in business the concept of intellectual

property rights is very important to every human being who is involved in some

creative works. At present now the competition is very high and in this situation it

is duty of legislature to give a string and strict law relation to protection of

intellectual property rights to every citizen of India. Particularly in 19 th century

Indian peoples more active in science and technology, more active in industrial

services and manufacturing services so this people must be protected by the patent

laws, trademark laws and copyright laws and any other intellectual property

rights.

Parliament of India enacted many laws relating to Intellectual property rights

which are based on international conventions and conferences. At present now

4
Mishra J.P. An Introduction to Intellectual Property Rights,Central Law Publication,(2009)p.42

17
like the movable property and immovable property there must be law and

effective remedy require to the people of India.

1.3. CLASSIFICATION OF INTELLECTUAL PROPERTY:-

According to jurisprudents Intellectual property mostly divide in two parts i .e.

industrial property and copyright law. A term of French origin, “industrial

property”(proprieties industrial) encompasses patents (technological information),

“ trademarks”(symbolic information), and “ industrial designs”. Copyright law

and neighbouring rights (expressive information) cover artistic, musical, and

literary works. The term “intellectual property” has been given official recognition

by the international community with the establishment of WIPO, a specified

agency of the United Nations.5

1.4. THE CONCEPT OF INTELLECTUAL PROPERTY:-

The actual concept of intellectual property is that the owner or originator can use

his property against the whole of world. As a right in rem. And in case any person

use the intellectual property of the originator he is liable to pay damages if found

guilty. But the use of intellectual property is subject to limitations and restrictions.

It means if the owner of any specific portion of land want to construct building on

that land he want to get various permission of Government, like that use of

intellectual property is as per wish of the individual person but subject to control

of the Government. It may be restrict by the Government for security of the nation

or for protection of moral values of the nation.

5
W.R.Cornish,Intellectual Property,3rd Ed.,2001 Universal Law Publishing Delhi,p3

18
1.5. THREE KINDS OF PROPERTY-

1.5.1. Movable Property:

Movable property is such type of property which is not fixed

permanently to the earth it can move anywhere, like car, wristwatch etc. Camera

or Car can be taken as example of movable property which only owner of Camera

o Car can be use these objects .in legal words it can be say exclusive rights to the

owner for use it. It is authorisation against the whole of the world.

1.5.2. Immovable Property:-

Land and buildings which is permanently fixed to the earth is comes in to

the immovable property. There are many restrictions on the immovable property

rights holder. For example the possessor of the land cannot construct building as

per his wish; he requires various legal requirements and many formalities for

construction of building on the piece of land.

1.5.3. Intellectual Property:-

Intellectual property is invisible and intangible this type of property

cannot be seen with eyes and not be touch by the hands its creation of brain and

mind of the human being. According to various laws the protection of this

intellectual property is only for limited period because after many years or after

death of the originator legal heirs cannot takes benefits like the movable and

immovable property.6

6
Wadehra B.L.:Law Relating to Patent,Trademarks,Copyright,Design,Universal Law
Publishing,Delhi,(2000),p.281

19
1.6. PATENT:-

In India, the national regime pertaining to patents is contained in the Patent Act,

1970(Act 39 of 1970) as amended by the Patents Amendment Act, 1999.the

purpose of this Act is to amend and consolidate the law relating to patents. The

object of the patent law has been summed up by the Supreme Court of India in

M/s Bishwnath Prasad Radhey Shyam Vs. M/s Hindustan Metal Industries (AIR

1982 SC1444) as under, which is self-explanatory.

The main purpose of Patent law is to promote and motivate research in the field of

science and technology and increase the profit in international market..

The main feature of patent law is to protect the rights of scientist or an invention

.in oterr words patent law is protect the novelty and new creation by the human

being it is research or any new technology in the world. It is essential discovery as

opposed to mere verification of what was already known before the date of the

patent.

1.6.1. DEFINITION OF PATENT:-

The word Patent originated from the Latin Word “Patene” which means ‘to open’.

The concept of patent systems is very old one. It originate in England during the

period of Queen Elizabeth I. particularly in the 12th century and by the 14th

Century. Patent is providing special rights and privileges to the person who

develops any new idea or an invention.

20
Patent is grant or some privilege, property or authority made by Government or

the sovereign of the country or more individuals, such instrument is known as

patent.

For the purpose of protection of interest of an inventor Government issue one of

the document it is also called as patent. It creates rights to that inventor and his

legal heirs. The patent Act, 1970 does not provide for a comprehensive definition.

Section 2(m) of the Act merely says that “Patent” is not clear, in any sense. In

order to understand the concept of patents, one has to refer to the other numerous

provisions of the Act and also certain foreign legislations and international

instruments.

The concept of ‘Patent’ is dividing in two parts. One is called “Patent “and other

is or “letters Patent”. The second one is mostly applicable in western countries but

the meaning is near about to same with the concept of patent.

“Patent” is a licence given to an inventor to make exclusive use of his invention.

In simple words the meaning of patent is define as it is one type of use of

exclusive rights on invention or novelty or discovery of new things, but this right

is subject to restrictions.

Therefore, patent is a limited monopoly right granted by the Government to an

inventor to use, exploit, and work and sell his invention in respect of either a

process or a product.7

7
Law Relating to Intellectual Property Fifth Edition,Dr.B L Wadehra,Universal Law Publishing
Co.Pvt.Ltd., Gurgaon (Lexis Nexis)

21
According to amendment under Section 3(d) of the Patents Act, Inventions

lacking inventiveness are not patentable8.

1.7. TRADEMARK:-

When any consumer decides to purchase any goods or things

always he thinks the goods or things must be of good quality and its worth for

money. Therefore every consumer purchases that goods or things from the repute

seller or manufacturers. This is with a view to identifying the manufacturer, brand

and quality of the goods or services produced by a particular maker or company.

The importance of trademarks was recognised only after the industrial revolution

which enabled large scale production and distribution of goods and publicity
9
through the printing media.

In ancient times the consumption of distinctive mark on goods of the

manufacturers was subject to permission of the law at that time the law relating to

incorporeal property was implemented.10

Every trade mark is identity of the manufacturer or businessman .its identity of

reputation of the businessman. The need of a trade mark generally known as

“badge of origin.” 11

8
Wockhardt Ltd. vs. Wockhardt Towers, 2006 (32) PCT 261(P.O.Mumbai)
9
P. Narayanan, Intellectual Property Law, 2nd Ed., 1999 p.120
10
(Millington vs. Fox, 40 ER 956)
11
Mattel, Inc. Vs. Jayant Agarwalla,2009(2) R.A.J. 590 (Del.)

22
 1.7.1. DEFINITION OF TRADEMARK:-

The term ‘trade mark’ can be defined in several ways. But in simple

words it is one type of logo or identity of any trade or business upon which it is

possible to show identity of the goods and services. Trade mark distinguishes the

goods or services of one person from another person and it include shape of

goods, their packaging and combination of colours.12 it includes

device,brand,heading,lable,ticket,name,signature,word,letter,numeral,shape of

goods, packaging or combination of colours or any combination thereof trade

mark is a symbol which is applied or attached to goods offered for sale in the

market, so as to distinguish them from similar goods and to identify them with a

particular trader or with his successor as the owner of a particular, selected,

certified or sold by him or them or, which has been properly registered under the

trademark law.13 It is a symbol consisting in general of a picture, label, word or

words, which is applied or applied or attached to a traders goods.14 It is duty of

every individual person to take care of the registered trade mark and not to

damage reputation of the person who registered his mark as trademark.15 The

meaning of trademark is very broad, Mark includes amongst other things name or

word also16 Trade Mark is essentially adopted to advertise one’s product and to

12
.(see section 2(m) of the Trade Marks Act,1999)
13
M.R. Verma Vs. William Hallins and Co. Ltd., AIR 1947 Lah.29.
14
Firm K. Becharilal Vs. Firm Adam Hazi Pirmohomed Esabh, AIR 1944 Sind.21
15
Vijay Grover vs. Biocure Laboratories, 2002 (2) Raj.111
16
(Laxmikant Patel Vs. Chetanbhai Shah,(2002) 3 SCC 65)

23
 make it known to the purchaser. In one of the case it was observed that ,generally

people try to violate the unregistered trademark at that time also original mark is

protect with the help of legal provisions.17

1.8 COPYRIGHT:-

In ancient India there was no need of copyright protection, because

low population and honesty between the people, but now a days due to

development in technology, peoples try to use others work for wrongful benefits.

In India the Copyright law is firstly enacted by British Government which is

known as Indian Copyright Act of 1847 (Act XX of 1847) enacted. This

legislation was not sufficient for give eth effective protection to the Ownres,but in

the period of 1847 to 1911 many developments in the country in copyright related

subject matters. Thereafter again many chances enacted in the old Act and new

law codified in England and it is known as Copyright Act, 1911 of England. After

getting ideas from Imperial Copyright Act,1911 the principle “Law in force”

applied in the territory of India immediately before the commencement of the

constitution and its effect continued by one of the provision of Art.372(1) of the

Constitution.18

This Act was made applicable to all the countries under the British Dominion

legislatures to modify or alter its provisional laws; in India also the Governor-

General of India enacted the Indian Copyright Act, 1914. likewise copyright law

17
Cadila Health Care Ltd. Vs. Cadila Pharmaceutical Ltd.,(2001) 5 SCC 73 AIR SCW 1411
18
AIR 1959 Mad.410 (416,417)

24
in the U.K. it was not fit with the changed constitutional status of India, which is

from the year of 1947, at that time it was necessary to make a separate self-

contained law on the subject of copyright on the basis of the growing public

consciousness and the rights and obligations of authors and in all the field of

subject matters related to Copyright, it’s clear terms and conditions for

infringements and remedies against misuse.19 It was need to insert New and

advanced means of communication like broadcasting, litho photography, etc., by

way of amendments in the prevailing law.

The first work protected by copyright has been the work of authors.

As the author of a work is the natural owner of copyright in its creation, he alone

has the right to authorise the making of copies of his work, or to withhold his

consent to such reproduction. The moral justification for providing legal

protection appears to be based on the principle that a man is entitled to the fruits

of his intellectual creation which is the result of his talent and hard work.

1.8.1 MEANING OF WORK FOR APPLICABILITY OF

COPYRIGHT:

In India, According to Copyright Act, 1957 applicability of copyrights to

works means any of the following works, namely:

i) A literary, dramatic, musical or artistic work;

ii) A cinematograph film; and

iii) A sound recording.

19
See Statement of objects and Reasons of the Copyright Act, 1957

25
 The Copyright Act protects the works and other subject matter. Works

are like an original painting by Ravi Verma or M.F. Husain, called an Artistic

work or a book by Munshi Premchand or Rabindranath Tagore called a literary

work or a piece of music by Ravi Shankar or Amzad Ali Khan, called a musical

work or a Ram Lila play staged at an auditorium called a dramatic work. Other

subject matters that can be copyrighted are called ‘works’ which include a film, a

sound recording or a C.D. or a gramophone record, a broadcast on T.V. or Radio.

1.8.2. MEANING OF WORD ‘ORIGINAL’:-

Originally for the purposes of copyright law relates to the

expression of thought, but such expression need not be original or novel. The

copyright one of the important factor is that the work must not be copied from

another work but must originate from the author20. In V.Govindan Vs.

Gopalakrishna Kone’s case21 involving the issue of a school dictionary and tried

under the Copyright Act, 1914, the courts ruled that the contention that no

originality can be claimed in dictionaries, compilations, guide books, maps etc.

1.9 : DESIGNS:-

An article or goods used in commerce is distinguished not only by its

utility but also by its appeal which plays an important role in influencing the

buyers’ preference for the article. According to the commercial view point, the

design of an article and even the design of its packaging are important. A shape,

20
Camlin Pvt. Ltd. Vs. National Pencil Industries,2002 (24) PTC 349
21
AIR 1955 Mad. 391 at p.394

26
configuration, pattern or ornamentation can be design, if applied by any industrial

process or means.

The first purpose of the law relating to designs is to protect the

shape, and not functional shape. In one of the case22 the defendants were

restrained from manufacturing, selling, or offering for sale of the “pick –n-carry

mobile” cranes that are substantial imitation or reproduction of the industrial

drawings of the plaintiff or from using in any other manner whatsoever the

technical know-how, specifications or drawings of the plaintiffs till disposal of the

suit.

1.9.1. POSITION OF DESIGN IN INDIA:-

Design or industrial design is very important factor to the manufacturer,

according to Indian laws for the registration of the design or industrial design the

design must be new and original, if any design is similar to the already registered

design then the protection will not be given on the ground of existed design.

During ancient days design patterns were not contrasted with utility patterns but

they are nowadays considered as different from each other. This is so, even

though they equally involve the exercise of the inventive or originate faculty.23

Design is that characteristic of a physical substance more particularly in respect of

goods or articles, which by means of lines, images, etc.

22
Escorts Construction Equipment Ltd. Vs. Action Construction Equipment Pvt.
Ltd., 1999 PTC 36 (Delhi)
23
Ibid

27
As per drastic development in the field of Science and Technology the importance

of designs has increased significantly. The purpose of any design law is to protect

new and novel designs made with the object of applying to particular articles to be

manufactured and marketed commercially.

1.9.2. MEANING OF DESIGN:-

Design, generally means purpose of intention, combined with the plan in

the mind, aim, purpose, object, and end in view, intention to be carried out into

effect. The design includes the thing that is to be brought about; the plan includes

the means by which it is to be brought about24. The need of a design is to show

individual identity and use in the market a different impression in to the minds of

the peoples who want to purchase article or goods according to their choice. 25. If it

has been pre-published, it cannot claim protection as publication before

registration defeats the proprietor’s rights to protect under the Act.26 It is

published if a design has been disclosed to the public or public has been put in

possession of the design.

Compared to other forms of Intellectual Property Rights the Designs

do not attract much of the attention of courts probably because of the consistently

changing tastes of consumers. What is a new design today may not be so

tomorrow. The developments in Science and Technology made it possible to

design new articles not only manually but also by the use of computers. Now the

concept of computer aided design (CAD) is common place and every article has a

24
P.Ramnath Aiyar, The Law Lexicon,(1997), at p.535).
25
(Vikas Vashisht, Law & Practice of Intellectual Property, 2nd Ed., (2002),
Bharat Law House, New Delhi, P.920)
26
(Rotela Auto Components (P) Ltd. Vs. Jaspal Singh, 2002 (2) RAJ.34)

28
design which can be generated by the computer. Further, use of graphics, colour

combination, 3D technology and the like advances made the field of designs wide

open. The Designs Act of 1911 could not address all these problems as there was

not much scientific development compared to the present. Therefore the new Act

of 2000 has taken into consideration the requirement of protecting the rights of

designers not only in India but also in other countries in the light of technological

advancement.

1.9.3. DEFINITION OF “DESIGN”:-

Section 2(5) of the Designs Act, 2011 defined a design as under:-

According to design laws “Design” means the features of shape,

configuration,pattern,ornament applied to any article by any industrial process or

means, whether manual, mechanical or chemical separate or combined, which is

completed article and observed by the human senses o by the human the eye; but

not require any particular mode or principle of construction or anything which is

in material form or a mere mechanical device and does not include any trade

mark as defined in Trade Marks Act,1958 or property mark as defined under the

Indian Penal Code.

On a clear analysis of the definition, it becomes clear that the “designs” have the

following essential characteristics.

i) It means only ‘features’ or outward appearances

ii) The features include only the shape, the configuration, pattern or

ornament

29
 iii) The features apply to any article by any industrial process or means,

which may be manual, mechanical, or chemical, separate or combined;

iv) It must be complete material form which is perceived by the eye and

must be capable of being judged solely by the eye;

v) It does not include any mode/principle of construction or anything,

which in substance is mere mechanical device; and

vi) It does not include a trade mark or a property mark.

In other words a design denotes only the features in the form of shape,

configuration, pattern or. If it has beeper-published, it cannot claim protection as

publication before registration defeats the proprietor’s rights to protect under the

Act.27 They must appeal to the eye i. e. Must have visual representation and be

capable of being judged by a mere look. Designs have no relation to the utility

value of the ‘article’, and they are distinct from a trade mark or property marks.

An ‘article’ for the purpose of design means any article of manufacture and any

substance which may be artificial or partly artificial and partly natural. It includes

any part of an article which is capable of being made and sold separately.( Section

2(2) of the act of 1911 and Sections 2(a) of the Act of 2000)

1.10 :-GEOGRAPHICAL INDICATIONS:-

Geographical indications are deals with the identity of the certain

products in the commercial market. This identity is as to name of the geographical

area or goods from the particular area. According to concept of geographical

indication the consumer is protect from any type of loss. In view of the loss it may

27
Rotila Auto Components (P) Ltd. Vs. Jaspal Singh, 2002(2) RAJ 34

30
cause to the consumers and also to that particular geographic region, the

International community has taken note of the necessity to protect the “indications

of source” and “appellations of origin”, both of which denote geographical names

or names of goods associated with a particular region. In order to understand the

concept of ‘geographical indications protection’, it would be necessary to

understand and define both the aforementioned expressions.

1.10.1. INDICATION OF SOURCE:-

An Indication of source is merely a geographic designation indicating

where the goods came from. For example, Paris Perfume.

The agreement of Madrid for the prevention of False or Misleading

Indications of source on Goods and the Additional Act of Stockholm is intended

to protect consumers against persons using false indications of source on goods.

This Agreement was drafted to prohibit all false indications of source regardless

of the user’s intent.

The Madrid Agreement requires seizure or import prohibition of all

goods bearing a false or misleading indication by whichever one of the member

countries or a place located therein that is directly or indirectly indicated as the

country or place of origin. However this agreement does not require protection for

all indications of origin. It allows the tribunals of each member country to decide

whether an indication of origin has become generic. This provision applies to all

manner of goods except for regional appellations for wine, which cannot be

declared generic.

31
1.11. BIODIVERSITY AND TRADITIONAL KNOWLEDGE:-

The Traditional Knowledge is very closely related to biodiversity

and generic resources. According to the Convention on Biological Diversity

(CBD), 1992 the term biodiversity defined as the “variability among living

organisms from all sources. The CBD imposed many obligations on member

countries as how to respect, how to preserve and maintain how to knowledge,

innovations and practices of indigenous and local communities embodying

traditional lifestyles which relevant for the conservation. It also provides that the

members must make sustainable use of biological diversity and promote their

wider application with the approval and improvement of the holders of such

knowledge, apart from encouraging the equitable sharing of the benefits arising

from the utilization of such knowledge, innovation and practices.

1.11.1. MEANING OF TRADITIONAL KNOWLEDGE:-

In whole of the world in the field of Intellectual Property Rights There

is no definition of Traditional Knowledge which universally accepted. Different

persons define this term differently depending on their intellectual knowledge

and theirs professional interest. Many jurisprudents use the concept of Traditional

Knowledge interchangeably with that of indigenous knowledge (IK).

According to World Intellectual Property Organization (WIPO) at

present now use the term “traditional knowledge” in reference to tradition-based

literary, artistic or scientific works; performances;inventions;scientific

discoveries; designs; marks; names and symbols; undisclosed information etc.

32
1.11.2. SIGNIFICANCE AND CHARACTERISTICS OF

TRADITIONAL KNOWLEDGE:-

Traditional knowledge is a broad concept which is connected with the several

subject matters. What characterizes traditional knowledge is the fact that, generally, it

is not produced systematically, but in accordance with the individual or collective

creator’s responses to and interaction with their cultural environment. According to

the facts of traditional knowledge it can be say that sometimes traditional knowledge

perceived as an isolated piece of literature (a poem, for example).

33