Intellectual Property or IP refers to the protection of creations of the mind, which have both a moral and a commercial value.
IP law typically grants the author of an intellectual creation exclusive rights for exploiting and benefiting from their creation. However, these rights, also called monopoly right of exploitation, are limited in scope, duration and geographical extent.
The four major types of protections available to IP include:
The Patents Act, 1970
Patent is a form of protection that provides a person or legal entity with exclusive rights for making, using or selling a concept or invention and excludes others from doing the same, also for claiming damages from those who infringe the invention.
Patents generally cover innovations, products or processes that include new functional or technical aspects. It is granted by the Indian Patent Office and has a term of 20 years. After expiration of this 20 year monopoly the product/ invention will fall in the public domain for any third party to use it.
The legislations which deal with the protection and registration of patents in India are The Patent Act, 1970 and The Patent Rules 2003. The patent Act 1970 has undergone three (3) amendments in 1999, 2002 and 2005. In the 2005 amendment introduced product patent protection for food, pharma and chemical inventions.
In India an invention/product has to satisfy various criteria to qualify for a patent are:
- New/ Novel- The invention has a feature that sets it apart from previous inventions and is unknown to the public.
- Non-obviousness- The invention’s novelty must not be obvious to someone who has ordinary skill in the area of invention.
- Utility- The invention is considered useful.
Like other IP laws patent protection is territorial in nature. Registration of a patent ensures protection in all over India. If somebody wants to protect their invention in another country they have to file application in each and every country where the Applicant wants patent protection for their product/invention.
The Trademark Act, 1999
A trademark is the most valuable asset owned by a business. When a business is successful, others will imitate not only the ideas and market strategy, but very often they will also imitate the trademarks, product packaging, distinctive markings, etc. used by a successful company. Businesses with particularly successful products or services spend considerable amounts of time, effort and money creating, establishing and promoting their unique identities.
Owners who fail to pay sufficient attention towards the protection of their companies’ trademarks face a number risks, including the inability to register or use their own marks on a future date, the dilution of the market’s recognition of their products or services, and, in some cases end up spending huge resources in legal action to prevent unauthorized use or justify the use of their own property.
It is therefore pertinent that the trademarks be registered over all the goods and/or services over which the mark is used. The legislations which deal with the protection and registration of trademarks in India are The Trademark Act, 1999 and The Trademark Rules 2002. In India, trademark registration is valid for a period of ten years. The same may be renewed from time to time for additional periods of ten years each.
For registration of a mark as a trademark in India, the mark has to fulfill certain criteria. These include the following requirements:
- The mark should be non- generic;
- The mark should be non- descriptive;
- The mark is not identical or similar to existing marks;
- The mark should be non- deceptive.
The Copyright Act, 1957
Copyright is a right given by the law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including rights of reproduction, communication to the public, adaptation and translation of the work.
The creator of a copyrighted work has right to control/ prevent unauthorized copying or reproduction of their work by others for a certain time period, after the said work will enter in the public domain. The protection of copyright varies according to national legislations and the type of work. The Indian law extends copyright protection for the work made by an individual for life time of the author plus sixty (60) years. The Copyright Act, 1957 and the Copyright Rules, 1958 provide for protection of copyrights in India.
There are various criteria for securing copyright protection for a work. Firstly, the work must be original and secondly, the work must be fixed or presented in tangible form such as writing, recording, film or photography, etc. It is to be noted that, Copyright does not protect the underlying idea but only the expression of that particular idea is protected under copyright.
Copyright is provided automatically to the author of any original work covered by the law as soon as the work is created. Registration is not mandatory, but provides for protection of ownership in case of dispute. Copyright registration is invaluable to a copyright holder who wishes to take a civil or criminal action against infringement.
One of the supreme advantages of copyright protection is that unlike other IP rights, protection is available in several countries across the world, by reason of India being a member of Berne Convention. Protection is given to works first published in India, in respect of all countries that are member states to treaties and conventions to which India is a member. Thus, without formally applying for protection, copyright protection is available to works first published in India, across several countries. The government of India vide International Copyright Order, 1999 has extended copyright protection in India to works first published outside India.
The Design Act, 2000
An industrial design refers to the creation of a shape, configuration or composition or combination of pattern or color in three dimensional forms containing aesthetic value. Designs Act protects only designs that are aesthetic in nature. An industrial design can be a two- or three-dimensional pattern. Novelty and originality are important criteria for a design registration. In addition, only those designs that are applied to an article by an industrial process will be protected.
The Indian law of designs is enshrined in the Designs Act, 2000 and the Design Rules, 2001.The industrial design registration grants the proprietor the exclusive rights of selling, importing and applying the design to any product. India has adopted the ‘first to file’ system, which means that the right holder should file the application on the earliest point of time to rule out the possibility of any other person claiming for the rights of the intended designs. Any person can apply for the industrial design rights as far as the design is new, not previously published in any nation, reproducible through industrial means, not against to the public order, distinct from the known designs, not consisting of any obscene material and eye catching. In India, a design registration is valid for a period of 10 years, renewable for a further period of 5 years.
Design rights are granted on a country-by-country basis. An Indian registration provides protection only in India and its territories. If the proprietor of a design wishes to protect a design in other countries, the owner must seek protection in each country separately under the relevant laws.
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