Intellectual Property

Intellectual property, of whatever species, vests in the valuable production of human mind, labour, skill & efforts. It is in the nature of intangible incorporate property & vests in the owner an exclusive right that is vital to success in obtaining & maintaining a competitive advantage in any commercial & industrial activity. It primarily comprises of: Patents, Trademarks, Copyrights, Designs & Geographical Indications. As a reflection of the maxim ubi jus ibi remedium, in India there are four statutes (along with rules) which protect the infringement or violation of the intellectual property of a person :

• The Patents Act, 1970

• The Trademarks Act, 1999

• The Copyright Act, 1957

• The Designs Act, 2000

• Patent is an exclusive & territorial right granted to the owner of an invention (product / process) to make, use, manufacture & market the invention. To be patentable, a product / process must embrace the characteristics of novelty, industrial applicability & non-obviousness. The protection granted to the invention is for a limited period (normally 20 yrs.)

• An application for obtaining may be made by the first & true inventor or his assignee / legal representative .The patent application would be accompanied with complete / provisional specification (description, usage methods & scope of the invention) which is then allotted a priority date. The applicant should then file for the examination of his patent application within 12 months of his filing for the patent. Accordingly, examination report is received upon which objections are to be invited within 3-4 months. If the examiner raises no objections, the same would be published in the gazette. If no objections are received from the public the applicant is awarded the patent within a further period of three months. On the other hand, if objections are received the same goes for hearing & disposal to the Examiner (patents). There are provisions for appeal to the Appellate Board & further to the High courts & Supreme Court. The final disposal may take around 6-8 years.

• The month of January 2005 was marked by the lapse of the 'transition period' given to the developing nations to adjust themselves to the global patent regime; thus rendering the provision of EMRs & mailbox applications redundant.

• India joining the Patent Cooperation Treaty, Dec'98 (hereinafter PCT) simplified the procedure of filing of patents. The PCT application allows the applicant to know about the potential Patentability of his invention (through international search report & optional international preliminary examination). Unlike the traditional patent system, the PCT system consolidates & streamlines patenting procedures, reduces costs & helps in decision making.

• Trademark may be defined as a mark (in the form of label, word, device etc.) capable of distinguishing goods or services of one person from another & which can be graphically represented. Distinctiveness (acquired / inherent) is the most important feature of a trademark.

• The registration of a trademark is not mandatory, but its non- registration keeps it devoid of protection against infringement; though, of course, the common law remedy of passing - off is always available.

• The Act provides for absolute (devoid of distinctive character etc.) as well as relative (identity or similarity with other goods or services etc.) Grounds of refusal of registration. The act further gives an exclusive right to the proprietor of a registered trademark to use the same in relation to his goods or services & even to file a suit for infringement & obtain injunction, damages etc.

• The registration of the trademark involves application to the registrar, advertisement of the application, inviting of opposition, correction & amendment followed by registration. The registration subsists for a period of ten years after which it has to be renewed.

The trademark is also capable of being assigned & transmitted by the proprietor

• Copyright subsists in the original literary, dramatic, musical, artistic works, cinematograph films & sound recordings. It is an intangible, incorporeal right granted to the author or originator of the above works whereby he is invested, for a specific period, with the sole & exclusive privilege of multiplying, publishing & selling copies of his works. The specified period is sixty years, following the year in which the work was first published.

• The copyright exists in the tangible expression or the form of an idea & not in the idea itself. That is why even translations & arrangements form a part of copyrightable subject matter.

• The author is generally the owner of copyright & enjoys a bundle of rights in relation to his creation - reproduction in any form, communication, translation, adaptation etc. this further augments the scope of assignment & transmission of copyright.

• Barring cases of fair dealing or reproduction for educational or judicial purposes, any act done by a person, in relation to the matter that enjoys copyright & without a license from its exclusive owner, constitutes infringement. Civil, criminal & administrative remedies are available to the owner & his assignees.

• Geographical indications may be defined as an indication, which identifies such goods as agricultural, natural, or manufactured goods as manufactured in particular territory, region locality etc. the indication specifies the quality & reputation, which is essentially attributable to the geographical origin of goods.

• The Geographical Indication of Goods Act, 1999 provides detailed & streamlined procedure for the registration of such indications. The registration, though not compulsory, of course, provides prima-facie evidence of validity. The procedure is similar to that of trademarks - application, advertisement, inviting opposition, amendment/correction & the grant. Registration subsists for 10 years after which it should be renewed

• Nevertheless, unlike trademarks, there is an express prohibition on assignment/ transmission of geographical indication.

• Design means the feature of shape, configuration, and pattern applied to any article by any industrial process; which in the finished article appear to & are judged solely by the eye. The primary object of the statute in India is to protect the shape & not the function. it does not include a method or principle of construction.

• The designs which are not new / original or has been disclosed or is not sufficiently distinguishable cannot qualify for registration. After the registration of the designs, the registered proprietor enjoys a copyright in the design for 10 years; this right can be further extended for a period of 5 years.

• After obtaining registration of the design the owner of the design is entitled to restrain others from infringing his designs or importing articles bearing the designs.

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