ABSTRACT
Intellectual property (IP) plays an important role in encouraging innovation throughout the world. It includes various rights, such as Patents, Copyrights, Geographical Indication, Trademarks, Industrial design, and Trade secrets. These intellectual property rights (IPR) protect various inventions and creative works. In today’s fast-paced world of technological, scientific, and medical advancements, intellectual property has become increasingly significant. This research paper encapsulates various conventions and agreements providing for the protection of intellectual properties throughout the world. In addition, it provides an in-depth analysis of various dimensions of IPR, examining their historical development and legal frameworks. Finally, the paper further discusses the suggestion and conclusion surrounding IPRs.
KEYWORDS
Intellectual property, Copyright, Patent, Trademark, Registration, Invention, Creation.
INTRODUCTION
The concept of property encompasses both tangible and intangible assets, which can be owned by individuals, governments, or associations. Various rights are exercised by individuals over their property, including ownership, sale, transfer, lease, and many more. While, IP is intangible in nature and refers to creations of the mind such as inventions, literary and artistic works, designs, and symbols used in commerce.
Several laws govern the protection of IP, like patents, copyright, and trademarks. The promotion and protection of intellectual property serve multiple purposes, including encouraging innovation and creativity in technology and culture, allowing individuals to benefit financially or gain recognition from their creations, and promoting economic development, job creation, and an improved quality of life.[1]
RESEARCH METHODOLODY
The research methodology used in this research paper is analytical in nature. It analyzes different types of rights and safeguards available to an individual or a company in regard to their invention or creation.
REVIEW OF LITERATURE
The idea of intellectual property emerged during the seventeenth and eighteenth centuries in England. Although the term IP started gaining prominence in the nineteenth century, but it became widely established within legal frameworks across the globe in the late twentieth century. IP refers to a range of intangible creations originating from the intellect of a being. Various countries acknowledge different types of intellectual property, with patents, copyrights, trademarks, and trade secrets being among the most recognized forms.
METHOD
While writing this research paper, I used different types of sources which includes both primary and secondary sources. The primary sources include statutes and various precedents governing intellectual property rights. While, the secondary sources include books and academic journals.
WIPO CONVENTION, 1967
WIPO (World Intellectual Property Organization) came into existence in 1967, and is headquartered in Geneva, Switzerland. It is considered as one of the oldest organizations in the field of IP protection. The main functions of WIPO include assisting in the development of campaigns with regard to the promotion and safeguarding of IP, harmonizing national legislations to improve IP protection worldwide, signing international agreements related to IP protection, and implementing other necessary actions.
WIPO and India
India has joined various WIPO treaties aimed at simplifying the trademark and industrial design search process, helping brand owners and designers protect their work. India became a member of WIPO in 1975 and is a party to several WIPO treaties, including the Paris Convention, Berne Convention, Patent Cooperation Treaty, Phonograms Convention, Nairobi Treaty, Nice Agreement, and Vienna Agreement.
India was the first country to ratify the Marrakesh VIP Treaty, a copyright treaty adopted in Morocco in 2013. India has also implemented provisions of the TRIPS Agreement since 2005, which had a significant effect on the economy of India, especially in the pharmaceutical sector.
TRIPS AGREEMENT OF WORLD TRADE
The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) is a multilateral agreement under the World Trade Organization (WTO) framework. It establishes basic requirements for safeguarding and enforcing IPRs among member countries. The agreement came into existence in 1995.
India has signed the TRIPS Agreement and has been implementing its provisions since 2005. The agreement had a significant effect on the Indian economy, especially in the field of pharmaceuticals.
The TRIPS Agreement addresses three main issues: standards, enforcement, and dispute settlement. It establishes standards for the subject matter, rights, exceptions, and minimum duration of protection..
TYPES OF INTELLECTUAL PROPERTY RIGHTS
There are three major types of IPR:
1. Copyright
2. Trademark
3. Patent
These rights play a primary role in protecting different forms of intellectual creations and encouraging innovation and creativity.
COPYRIGHT
Copyright is derived from the culmination of two words: ‘copy’ and ‘right.’ This right can only be exercised by the creator or their authorized representative. Section 13[2] of the Copyright Act grants protection to various forms of creative works, including literary, dramatic, musical, artistic, cinematograph films, and sound recordings. It encompasses a set of exclusive rights outlined under Section 14[3] of the Act.
Nature:
- Automatic: Copyright is an inherent right that arises automatically upon the creation and recording of an eligible work.
- Originality: The protected work doesn’t need to be entirely new, but it must be original, meaning it is not copied from another source and demonstrates the creator’s effort.
- Exclusions: Copyright safeguards the expression of ideas, not the ideas or concepts themselves.
Registration of copyright:
Chapter X (Section 44 to 50A) of the Copyright Act outlines the registration procedure in India:
Application:
The author or applicant can submit the copyright registration application personally or through an authorized legal representative. The application (Form-XIV) can be filed physically at the copyright office, sent via speed/registered post, or submitted electronically using the official website. Each application should pertain to a single work and be accompanied by the prescribed fee, ranging from 500 INR to 40,000 INR based on the nature of the work.
Examination:
Upon filing, the application receives a diary number, and there is a mandatory waiting period of 30 days to allow for any objections. If objections are raised, the process may be delayed by a month as the Copyright Registrar provides an opportunity for both parties to be heard. After resolving ownership disputes or rejecting objections, the application undergoes scrutiny. The applicant is given 30 days to rectify any discrepancies found.
Registration:
Once the necessary documents are submitted and the Copyright Registrar is satisfied with the application’s completeness and accuracy, the copyright details are entered into the register, and a Certificate of Registration is issued.[4]
CASE LAWS:
- : In this case Hawkins claimed that Magicook Appliances had infringed on their registered trademark under Copyright Act 1957 by using it on their pressure cooker without asking them. The court held that Magicook should be prohibited from using the trademark of Hawkins Cooker Ltd. Label. The court also said that Magicook should give compensation to Hawkin’s cooker Ltd. For all purported merchandise, written works, and other materials used in the manufacturing of the unauthorized products.
- : According to the Super Cassettes Industries Ltd., the YouTube profit is based on the unauthorized use of copyrighted content that is uploaded without the permission of the owners and also no compensation is provided in the form of royalties. The SCIL also alleges that YouTube get much benefits by this way and it generates good amount of profit by doing so. The court ruled that YouTube and google must not disturb, make, display or transmit any audio-visual works which is especially owned by SCIL on their platform.
TRADEMARK
Trademark laws in India are governed by the Trademark Act. According to Section 2(zb)[5] of the Act, a “Trademark” [TM] is a mark that can be graphically represented and has the ability to distinguish the goods or services of one person from those of others.” This includes shapes of goods, packaging, combinations of colors, devices, brands, signatures, words, letters, numerals, and more.[6]
Kinds of trademarks:
1. Word marks: It includes words, letters, or numerals. They grant exclusive rights only to the specific word, letter, or number, without claiming rights to the visual representation of the mark.
2. Device marks: It distinctively represent logos, labels, or designs in image format, and they may also incorporate words or combinations of words.
3. Service marks: Service marks distinguish the services of one person or company from others.
4. Certification Marks: Certification marks on products indicate that they have successfully passed specified quality standards. They assure consumers that the product has met certain criteria to ensure product quality.
Trademark registration process:
1. Filing an application: The first step is to file an application for registration. The application can be submitted online through the official IP India website or physically at the Trademark Registry Office within the appropriate jurisdiction. The application must include the required documents and complete details of the trademark.
2. Examination process: The Registrar thoroughly examines the application and provides a written examination report within 30 days. The report states whether the application is accepted, rejected, or subject to conditions. The applicant has 30 days to respond, addressing any objections raised by the trademark office. Failure to reply within the specified timeframe will result in application abandonment.
3. Post-examination procedures: If the applicant fails to overcome objections, a hearing may be conducted. After the hearing, if the examiner is satisfied, the mark can be accepted and forwarded for publication in the Trademark Journal. If objections persist, the application may be refused.
4. Publishing of the Trademark Application: Once accepted, the application is published in the Trademark Journal for a period of 4 months. This allows third parties to review the application and file opposition if necessary.
5. Notice of Opposition: Within 4 months of publication, any aggrieved party can file a notice of opposition using Form TM-O. The notice of opposition halts the registration process, and the applicant must go through legal procedures to proceed with registration. This may involve filing a counter-statement, submitting evidence, and potentially attending a hearing.
6. Registration: The final step is obtaining the certificate of registration. After completing all necessary legal procedures, including clearing any opposition, the applicant receives the certificate, finalizing the trademark registration.
CASE LAWS:
- Starbucks v. Sardarbuksh: This interesting case deals with the trademark infringement. Herein, the plaintiff Starbucks filed a trademark infringement case against Sardarbuksh coffee & co. in Delhi High Court on the ground that its logo sound name is deceptively similar to theirs. Futrther, they alleged that this is causing a lot of confusion among public. The Delhi High Court advised the defendants to change the name to ‘Sardarji-Bakhsh coffee & co’. Also, the defendants can get the name ‘Bakshsh’ registered under trademark which would exclusively be theirs.
- Yahoo! Inc v. Akash Arora: Here,the plaintiff had a domain name Yahoo! and the defendant also made a deceptively similar domain name to that, which is ‘Yahoo India’. The plaintiff filed a suit of trademark infringement in the Court. The Court held that this will create a lot of confusion among the internet users. It further observed that although this name is a dictionary word, but it is widely associated with the plaintiff.
PATENT
Patent Law covers the various patent right which are granted for new inventions including the process of manufacture, manufactured product. One thing that is important to note here is that the invention must be patentable. The headquarter of patent office is in Calcutta.
Patentable and Non-Patentable Inventions
1. Patentable Inventions:
Three conditions must be fulfilled in order to make an invention get patent; those are:
• Novel Invention
The primary requirement for the invention to be patented is that it should be new. It must be new in the sense that it must not be published anywhere in the globe.
• Useful
Apart from being new and non-obvious, an innovation must be useful to mankind in some way or the other.
• Non-obvious to the person skilled in the art to which the invention relates to
An innovation has to be new and also it should not be known to the people who are having knowledge in that particular field.[7]
2. Non-Patentable Inventions:Section 3[8] and Section 4[9] of the Patent Act deals with the inventions that are not eligible to get patented. The inventions which are not eligible to be patented are:
• That are frivolous and opposite to natural laws.
• That go against public morality
• That are a mere discovery of something that already exists in nature.
CASE LAWS:
- New railhead manufacturing l.l.c. v. Vemeer manufacturing co.: In this case a new drill bit is “angled with respect to the sonde housing” was invented by plaintiff. Since the angle was not mentioned in the original application so unfortunately, the plaintiff offered the drill bit for sale one year before the non- provisional filing date, so the patent would be invalid under law. Since the claim limitation of the angle drill bit body was not properly disclosed in the provisional application, the inventor could not claim the benefit and therefore the patent was declared invalid.
- Ksr intern. Co. V. Teleflex inc.: The hon’ble Supreme Court refined the analysis for obviousness, highlighting that a commonsense approach can be used while combining references to show obviousness. Before this case court used the “”teaching, suggestion, or motivation” test, in which the patent is only proved to be obvious. But this test is no longer used to show obviousness.
SUGGESTIONS
Since, intellectual property law basically deals with the protection which is provided to an individual in regard to the invention so done by the individual in a particular field of art which is not known to the people who have the knowledge in that particular field but still there are certain lacunas. In order to curb these some of the suggestions are: –
- Government should continually update and enhance their legal frameworks to provide robust protection for IP rights. This should include proper process of registration and effective enforcement mechanisms.
- Developing advanced technology and tools to detect and prevent inline piracy, counterfeiting and other forms of intellectual property infringement.
- Promoting licensing agreements, joint ventures and technology transfer mechanisms that benefit the parties involved.
- Proper incentives should be provided for innovation such as grants, tax incentives and funds should be provided for research and development.
- There should be efficient and accessible dispute resolution mechanism, having specialized intellectual property courts to address issues related to intellectual property.
CONCLUSION
This research paper basically deals with the comprehensive overview of IPR. The significance of IP in a rapidly evolving world of technological, scientific, and medical advancements cannot be underestimated. IP serves as a valuable asset, granting its owner a competitive edge over others. An intellectual property right represents a proprietary claim over the outcomes of one’s creative thinking. These rights foster innovation and provide invaluable support to innovators throughout various stages of business development, competition, and expansion strategies. Furthermore, it is worth highlighting that the registration and enforcement of IP rights empower consumers to decide diligently in regard to quality, safety, and reliability of their purchases.
REFERENCES
- Arun Gaikwad, A study of intellectual property rights and its significance for business, 10, Journal of Computational Acoustics, 552, 552 (2022).
- The Copyright Act, 1957, S. 13
- The Copyright Act, 1957, S. 14
- ipleaders, https://blog.ipleaders.in/all-about-intellectual-property-rights-ipr/ (last visited July 16, 2023)
- The Trademark Act, 1999, S. 2(zb)
- Arun Gaikwad, A study of intellectual property rights and its significance for business, 10, Journal of Computational Acoustics, 552, 557 (2022).
- The Patent Act, 1970, S. 2(j)
- Surabhi Singh, The Advent of Intellectual Property Rights in India, 5 (4), International Journal of Law Management and Humanities, 714, 717 (2022).
- The Patent Act, 1970, S. 3
- The Patent Act, 1970, S. 4
Ishita Thapiyal
Krukshetra University
[1] Arun Gaikwad, A study of intellectual property rights and its significance for business, 10, Journal of Computational Acoustics, 552, 552 (2022).
[2] The Copyright Act, 1957, S. 13
[3] The Copyright Act, 1957, S. 14
[4] ipleaders, https://blog.ipleaders.in/all-about-intellectual-property-rights-ipr/ (last visited July 16, 2023)
[5] The Trademark Act, 1999, S. 2(zb)
[6] Arun Gaikwad, A study of intellectual property rights and its significance for business, 10, Journal of Computational Acoustics, 552, 557 (2022).
[7] Surabhi Singh, The Advent of Intellectual Property Rights in India, 5 (4), International Journal of Law Management and Humanities, 714, 717 (2022).
[8] The Patent Act, 1970, S. 3
[9] The Patent Act, 1970, S. 4