Intellectual Property Rights: Protection, Management and The Law

Intellectual Property Rights
Protection, Management
and the Law
Contribution of Intellectual Property
IPR contributes in the economic, cultural and technological

development of a country.
Granting of patents monopoly enable the competitor to
manufacture new product or improved product or effect
improvements in the process of manufacture.
Industrial design protection encourages people with creative
faculty to devote talent for developing new designs for products consumer products (Toys, garments etc.)
Trademarks - enables consumers to

obtain their product of right quality by
identifying the products by mark.
If Trademarks not protected, shoddy and
spurious goods will be available in the
market
by
copying
well
known
Trademark.
3
Copyrights affects printing, publishing

and entertainment industries.
Manufacture of machine is base on
industrial drawings which enjoy copyright
protection.
IPR- A CONTRACT
A contract between the right holder and the society

- Through statutory rights - protection is granted to
the creator, inventor or innovator for his creation
to get credit and economic benefits , but statute
puts an
Obligation on the holder to exploit the creation for

public good and making the creation available to
the public for -
further promoting human creativity, fair

competition and to ensure market accessibility
Intellectual Property Law
Objective: to regulate the creation, use and

exploitation of mental or creative labour
Being used for about 150 years to refer to

general law that encompasses Copyright
,trademarks, patents , design and other related
rights
It creates rights in different things ranging from

novels, paintings, films, computer, television to
dress designs, pharmaceuticals, genetically
modified animals and plants.
6
IP Law : Basic Concepts
The IP Law is based on certain basic principles:
Patent - Concept of novelty (Lack of anticipation)

- Inventive step ( or lack of obviousness)
Design - Novelty or originality of design not

published.
previously
Trademarks - Concept of distinctiveness

- Similarity of marks
- Similarity of goods
Copyright- Concept of originality and

reproduction of work in any material form
Majority of case law on IPR deal with

application of these concepts.
Patents - relates to novel product or process of manufacturing

a product
Design- relates to non-functional appearance of a product appeals to eye
Trademark - world, name, device, get up used in

relation to particular goods to indicate source of manufacture
or trade origin of goods.
Copyright - relate to original literary dramatic, musical and
artistic work cinematographic films sound recordings.
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Nature of Intellectual Property
It is in the nature of intangible

incorporate property
- It consists of bundle or rights in relation

to material object created by owner
- Patent - Property is consist of the
exclusive right to use the invention
patented, to grant licenses to others to
exercise that right or to sell that right
to third party.
10
- Patents rights are created by statute and Governed by

Patents Act (1970)
-
Invention may relate to a new product or an

improvement of an existing product or a new process of
manufacturing an existing or a new product.
The acquisition of this monopoly, the conditions,

duration, Licensing of monopoly rights and their
assignments are governed by Patents Act, 1970.
-After expiry of patent term of 20years) - it becomes

public property.
11
Industrial Design
-
Property consist in the exclusive right to apply

the design registered under Design Act, 2000.
Maximum Registration period 15 years the right
can be licensed for use by third party a
on assigned to any person.
-On expiry of term - Anybody can use the design.
12
Trademarks
Two Types of Trademark Rights
(i) Conferred by registration under the Trademarks
Act 1999.
(ii) Acquired in relation to trademark, trade name
or get up by actual use in relation to some
product or service.
the exclusive rights granted by registration

enables the proprietor to prevent others not to
use the registered mark.
Prevent others not to register similar or
resembling marks which is likely to deceive or
cause confusion.
In case of unregistered mark or get up of good
will of business in relation to which such
13
trade mark or get up is used.
Unlike patents, design or copyright, the right

conferred by registration of a trademark can be
availed for indefinite period by periodic renewal
of registration first registration is for 10 years.
If trademark is not being used continuously for

5 years - it may be removed from register.
Unregistered Trademark - right to protection of

goodwill - indefinite - mark is used lawfully and
prevent its infringement by legal action.
14
Copyright - like patent and industrial

design - creation of statute: the
Copyright Act 1957
No formality used for acquisition of right
Subsist in original work

moment of its publication
period - life time of author + 60 years
from
the
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The copyright works are literary, romantic and musical or

artistic work.
Cinematograph film
Sound recording
Literary work - include - Computer Programmes, tables

and complications including computers databases
Licensing and assignment of copyright in any work is

governed by the Act.
16
Know how and confidential information
Protected so long as the owner is able

to keep them secret
Takes action against unlawful use by an

action for breach of contract.
17
IP Law and Jurisdiction
Law of patents, design and trademarks

are territorial in its operation.
Copyrights acquired in one country

extents to other countries which are the
members of conventions
(a) Berne Convention for protection of

literary and artistic work
(b) Universal Copyright Convention
India is member of both the
Conventions.
18
Enforcement of IPR and Remedies

against infringement
An action for infringement

District/High Court
of
IPRs
before
Criminal Prosecution in case of Trade mark and

Copyrights
Patentee may obtain a injunction restraining the
infringer from using patent and
Either damages or a account of profits
No criminal remedy for infringement of Patent of
registered design.
19
Trademarks
(a)Civil Remedies- an injunction & either damages or an

account profits and delivery of infringing articles for
erasure or destruction.
(b)Criminal Remedies imprisonment and fine.
may
be
punished
by
20
Copyright
Civil Remedies- an injunction - either damages or

account of profits
damages for conversion
Criminal Remedies - Imprisonment and heavy

time.
Seizure of infringing copies of the work to be

delivered to the copyright owner.
21
International Character of IP
Enormous Technological development of transport
and communication has resulted into globalization of
trade and commerce.
Due to Globalization of Trade & Commerce IP is

becoming international in character.
IP can trade effortlessly from one country another Piracy has become international in Character.
22
Piracy of Copyright work is easy and cheep due tape recorders &
Photocopying machines.
No foolproof method of preventing this piracy.
International character of IP has been recognized by Berne

Convention, Universal Copyright Convention and Paris
Convention ( International Convention for the protection of
Industrial Property deals with patents, designs, trade marks ad
trade names etc.). India to party to these Convention.
Field of IP is expanding corresponding to developments in

23
technology.
Protection of plant varies, prevention of various forms of

unfair completion, unfair business practices, dilution of
reputed trade marks and their commercial value by
using then by competitors is becoming more and more
difficult.
Piracy of IP has become international owning to

globalization of trade and commerce.
IP Law is fastest growing branch of law all over the

world.
24
IP management in
Organization
Understanding of IP law helps in

managing and protecting IP assets
Managing IP helps in avoiding financial

risks and gain competitive advantage
by proper application of IP tools
Organisation should have adequate

means to track trespassing on its IP
25
Organisation should conduct a IP

audit to determine compliance and
IP law risks to which it is exposed.
Organisation should assign

responsibility for developing
guidelines and prepare report on
managing IP law compliance within
the organization
26

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Intellectual Property Rights

Contribution of Intellectual Property

IPR contributes in the economic, cultural and technological

Trademarks - enables consumers to

Copyrights affects printing, publishing

A contract between the right holder and the society

Obligation on the holder to exploit the creation for

further promoting human creativity, fair

Intellectual Property Law

Objective: to regulate the creation, use and

Being used for about 150 years to refer to

It creates rights in different things ranging from

IP Law : Basic Concepts

The IP Law is based on certain basic principles:

Patent - Concept of novelty (Lack of anticipation)

Design - Novelty or originality of design not

Trademarks - Concept of distinctiveness

Copyright- Concept of originality and

Majority of case law on IPR deal with

Patents - relates to novel product or process of manufacturing

Design- relates to non-functional appearance of a product appeals to eye

Trademark - world, name, device, get up used in

Nature of Intellectual Property

It is in the nature of intangible

- It consists of bundle or rights in relation

- Patents rights are created by statute and Governed by

Invention may relate to a new product or an

The acquisition of this monopoly, the conditions,

-After expiry of patent term of 20years) - it becomes

Property consist in the exclusive right to apply

-On expiry of term - Anybody can use the design.

the exclusive rights granted by registration

Unlike patents, design or copyright, the right

If trademark is not being used continuously for

Unregistered Trademark - right to protection of

Copyright - like patent and industrial

No formality used for acquisition of right

Subsist in original work

period - life time of author + 60 years

The copyright works are literary, romantic and musical or

Literary work - include - Computer Programmes, tables

Licensing and assignment of copyright in any work is

Know how and confidential information

Protected so long as the owner is able

Takes action against unlawful use by an

IP Law and Jurisdiction

Law of patents, design and trademarks

Copyrights acquired in one country

(a) Berne Convention for protection of

Enforcement of IPR and Remedies

An action for infringement

Criminal Prosecution in case of Trade mark and

(a)Civil Remedies- an injunction & either damages or an

Civil Remedies- an injunction - either damages or

damages for conversion

Criminal Remedies - Imprisonment and heavy

Seizure of infringing copies of the work to be

Due to Globalization of Trade & Commerce IP is