ABSTRACT
Every tangible and intangible right is considered to be the assets of the humanity. The specialized part is that Intellectual Property Rights (IPR) category deals with the intangible rights depicting the logos, literary works, research or scientific inventions. There rights are mentioned in the Article 27 of the Universal Declaration of Human Rights dealing with the benefits that a creator holds by their inventions for moral and social causes of the society in protecting the interests of the owner. Lack of awareness on the field of IPR results in misrepresentation without knowledge of the facts and exact happening of law should be minimized.
The valuing and admissibility of the innovations of the creators and protecting their rights against exploitation with various amendments according to the recent trends and various other signing of treaties with other nations in order to work on the fields of IPR effectively, considering it as one the important factor of the innovations of the nation and lift up the economy. This paper deals with the major elements of IPR – Copyrights, Patent rights and trademark and their validity in India based on the provisions under the Indian legislations including the term period of validity and their scope.
- KEYWORDS
Intellectual Property Rights, Innovation, Novelty, License, Infringement.
- INTRODUCTION
The Intellectual Property Rights deals about the credit that an invention or any creativity of the human intellect holds exclusively. These rights are applicable to receive recognition over their creation or any financial credit over the use of their creativity. For instance, if a person develops a software application, over their own creativity and talent, they hold the right to acquire the credit of their work and ownership of the application developed through any proof or license which could be claimed under Intellectual Property Rights. Trade Related Intellectual Property Rights (TRIPS), 1955 was an agreement to establish international IP rights and deals with the dispute arising between Intellectual Property Rights.
All members of World Trade Organization (WTO) are entitled to validate the provisions of TRIPS along with their IP legislations of their territory. TRIPS agreement is also mentioned as Berne and Paris-plus. Intellectual skills are widespread in various fields such as – Patent, Copyright, Trademark, Geographical indication, Layout designs for integrated circuits, Industrial design, and Trade secret. IPR by this way crediting all the inventors enhances the economic, scientific and industrial development of the economy creating the world as a competitive sphere to excel and outreach the inventory opinions of various people across the globe. IPR deals with creations on both the spheres – national and international and it is intangible, and cannot be expressed in specific parameters.
The ultimate authority of a creation is allotted to the creator who holds the complete responsibility and is authoritative for any benefits arising out of it. US Chamber of Commerce on their recent report has stated the position of India in 29 out of 30 nations[i], which shows the non-involvement of our nation towards the fields of IPR, which must be revolted and change must brought by focusing on the much needed awareness and the necessity of the Intellectual Property Rights.
- RESEARCH METHODOLOGY
To get a clear view and idea on the factors regarding the Intellectual Property Rights, various secondary sources were referred to which acted as a model to make this work efficiently. With the assistance of books, research papers, articles and various other blogs by many other writers. The detailed analysis of various books of many authors helped at bringing out the opinions and the reality of the exact happening in the mere world regarding the subject matter of the elements and the wider scope of the Intellectual Property Rights along with my mere knowledge and extensive views of law regarding this doctrinal research project. This research paper aims at bringing out the reality and the exact reality of the legislation and the provisions that prevails around the globe. The various points of views were taken into consideration in the due process of bringing out the rights which the creator or the inventor holds. With reference to various websites and books I have turned out this research paper with my own ideas and words along with the citations of where it was referred to.
- REVIEW OF LITERATURE
Intellectual property rights (IPRs) have integral part in the dynamic environment due to the novelty and the creative minds across the globe which also includes the risk of the protection of rights of the holder. The Copyright Act, 1957 provides the legality of the copyright and the rights of the holder and various other provisions for enabling the validity of the copyrights. The Patents Act, 1970 was referred to for the procedure of application for patent till the term period and the necessity to get it registered for the applicability and to be aware of the financial benefits. The Trade Marks Act, 1999 considered for the measure of safeguarding the individual’s innovations and to make sure to get recognized before getting used by some others resulting in the infringement.
Various blogs, case laws, and articles were referred to, to know about the difference of opinions regarding the topic and the point of views which could be used for consideration for the efficiency of the research paper. The case laws mentioned in the research paper served as an illustration for the provisions for the act for the clear understanding of the applicability of the laws enforced.
- COPYRIGHTS
Copyright is legal right granted to the intellectual property of an owner which includes the areas of field such as literary, photographic, musical, and scientific and various other works.[ii] The copyright protection enhances other people to utilize the works of the owner with the prior permission of the copyright holder or the author. The ideas introduced are to be protected and are accessible and open to use by the others with the consent. The copyrights comes into force right after the creation of the work, therefore it becomes necessary for the author to register as soon as the creations is completed in order to neglect the misuse to any other copyright infringement by the others in an unauthorized way.
The work to be copyrighted must be tangible in nature, which may include any literary or artistic or any other work under the act, even a content of a paper or musical note on a sheet.
Term of Copyright
The duration of validity of the copyright is covered under the provisions Section 22 of Copyright Act, 1957[iii], the literary, musical or any other artistic works can be protected for over 60 years after the death of the creator. Meanwhile for any other film or photograph the copyright can be claimed for 60 years from the beginning of the following year of its release. Amidst all of these, the author or the creator gets their credit and other moral rights to own their creation.
Copyright Infringement
The copyright infringement refers to the unauthorized usage or any other financial benefits out of the copyrighted work without the permission or consent of the copyright holder. This is constitutionally a criminal offence and is subjected to a minimum punishment of imprisonment up to 6 months with a minimum fine of rupees 50,000/- under Section 51 of the Copyright Act, 1957.[iv] In the case of Hawkins Cooker Ltd. vs Magicook Appliances[v], the Magicook appliances used the label of Hawkins Cooker in the pressure cooker line which was registered under the Copyrights Act, 1957. The court ordered Magicook appliances to compensate Hawkins Cooker Ltd. for using their work in an unauthorized manner.
The copyright act was recently amended by the year of 2012 known as Copyright (Amendment) Act, 2012, which was stated that the author automatically gets copyrights after the creation of the work without any regular procedures, to get registered at Register of Copyrights Maintained at the Copyright Office of Department of Education as the first proof. This amendment aimed at removing difficulty clauses and to make provisions for the emerging issues for the digital world recently and to promote the creativity and potential of the creators to face the challenges of the modernized society.
- PATENT RIGHTS
A patent granted as per the provisions of Indian Patent Act, 1970, which is exclusively owned by a patent holder to preserve their rights and privileges over their invention. The patent lasts over 20 years from the date of filing application; it signifies the rights hold by the patent owner whose consent is required before taking any type of action. The patent owner can also sell their invention after which the ownership of the patent changes. After the expiration of the patent, it is open for the public domain, and owner doesn’t possess any rights. The patent must be non-obvious and shouldn’t be disclosed anywhere until the grant of the patent.
Essential features of a patent:
- Shall be used as industrial application for any practical purpose.
- Shall be novel, and should not be published anywhere.
- Shall be any scientific invention.
- Shall be unique and unused.
Patent owners possess the right for protection and prevents from exploitation from any other third parties, who doesn’t hold the right to takeover or sell the invention without the consent of the patent owner. Any invention of a person can be patented only when the provisions of The Patent Act, 1970 is fulfilled. The Patent (Amendment) Act, 2005 included even the patents could be granted for manufacturing of food, medicine, etc.
Firstly, in the due process of patent registration the inventor is granted with rights of recognition along with the financial benefits by holding the patent. Secondly, the inventor is obliged to disclose all information regarding the invention to the patent office during the process of filing the application, and the information could be accessed by anybody and could act as a hint for the other researchers to invent in their respective field.
The procedure of granting patent is that:
- Filing Application for Patent – The head patent office is located at Kolkata, and the other three branches are located in New Delhi, Mumbai and Chennai. The applicant is obliged to file application in any of the branches with every detail regarding the invention. The inventor has a provision to specify the priority and regarding the disclosure of the invention, and limitation is for 12 months, to fulfill the specification in the suggested format.
- Publishing application – At the end of 18 months, the patent application is filed in the office journal, and early publication can be requested by paying extra charges.
- Patent opposition – If opposition is filed within three months, the controller of patent office requests for the examination of the patent.
- Examination request – The applicant demanding examination is bound to apply within 48 months of filing application along with mentioned fees.
- Examination – The patent examiner is obliged to check up the conditions to be a patent, which includes – Inventiveness, Non-obviousness and Novelty; which is issued as First Examiner Report (FER) to the one who demanded examination and initiated application. With any doubts or clarifications in the First Examiner Report the applicant must get it clarified within one year.
- Issue of patent – The controller grants the patent to the applicant after rectifying and clearing out the clarifications during the examination process. The applicant is entitled to pay renewal fee for a certain period of time under the Patent Amendment Act, 2002 to keep it in force. The patent also has the provision of e-filing from the year of 2007.
The patent rights received by the applicant is valid for over 20 years, and when the patent expires, the invention is disclosed to the public domain and anyone possess the rights to utilize the invention’s technique even without the consent of the patent holder.[vi]
Section 92 of The Patents Act, 1970 says about the authorization of a third party to be issued with compulsory license. The section states that if the authorized patent holder who is obliged to fulfill the demands of the society by producing the patentable goods which may include medicine, food, economic goods etc. fails to do so, then the government holds the authority to transfer the rights of the patentable owner to a third party who is will be issued with a compulsory license. The government also should take care of the economic benefits of the original patent owner.[vii]
Patent Co-operation treaty (PCT)
In 1978, a multilateral treaty named Patent Co-operation treaty with more than 155 countries came into force which is co-ordinated by the World Intellectual Property Organization (WIPO) located in Geneva. Patent rights are extended up to a specific territory and the applicant is bound to apply patent under their territory. After the enforcement of this treaty, only one international application was enough to be implemented instead of filing separate applications in national and regional level, though the authority for granting patents remains the same in the regional and national level which is called the national phase; Therefore saving the expenses to be used in the due process.[viii]
- TRADEMARKS
Trademark is said to be the sign or phrase or any word which denotes or differentiates a specific or any organization which is unique in nature depicting the innovativeness of the product denoting the brand in a competitive field to choose specifically. The form of intellectual property which can be registered or unregistered is trademark.[ix]
Therefore, it is evident that trademark focuses on grasping the consumers or the customers in choosing a unique and quality product or to prefer the brand. It enhances to maintain a better understanding of the feature of the brand by the hint of the trademark. For instance, even if the name of the brand is not present in the logo, people prefer to identify the company or the organization just by analyzing the logo or any phrase or slogan which becomes a unique feature of the brand for familiarity. The application of the trademark is to be submitted before the National or Registered Trademark Office.
Trademarks are classified as,
- Collective marks – Type of trademark where the associations depicts a group of people with specialization for collectively rendering services to the public denoting professionals such as lawyers, engineers, management, etc.
- Service marks – The type of trademark where symbols, labels or any sign signifies the nature of service of the company or any institution is service mark which includes LIC, Indian Bank, Vodafone, etc.
- Certification marks – The trademark which depicts the certification for the portrayal of the standard or guidelines issued by the certifying authority ensuring the minimum quality and nature.[x]
Term of Trademark
Trademark doesn’t grant any exclusive right for the holder so it doesn’t hold a specific term period, which also acts as limitation paving way to many number of trademark registrations. The applications for trademark can be registered in any of the Trade Mark Registry Office, Mumbai, Delhi, Kolkata, Ahmadabad and Chennai; where Mumbai acts as the head office. The trademark is valid for the period of ten years at the beginning, and can be renewed every 10 years based on the necessity of the trademark holder. Though the trademark is being a primary part in promoting a brand or organization, it is not mandatory for all the companies to have registered for a trademark.
Trademark Infringement
The trademark infringement takes place when anyone uses the identical or similar trademark which is already registered under the provisions of Section 29 of The Trade Marks Act, 1999[xi] for any brand or organization without the authorization of the license holder. The law of passing off prevails to control the other person from misrepresenting the original goods for the good will of the trademark license holder and in order to make people prefer the genuine products. Trademark Infringement may result in imprisonment of minimum 6 months to the extent of 3 years and penalty of rupees 50,000 to 2, 00,000.
In the famous case law of Coca Cola Vs Bisleri International Pvt. Ltd. & Ors[xii], the case was regarding the trademark of Maaza. Bisleri have already assigned its trademark of Maaza to Coca Cola to buy and sell products from India. Later, they filed a trademark application in Turkey; so the court held that as trademark was assigned to Coca Cola, Bisleri is not bound to use it in India or anywhere.
- VARIOUS OTHER ELEMENTS OF IPR
- Trade secret: Trade secret involves a technique or the formula of a company which is circulated only within the company and not known outside which acts as a major part in the competition of the market.
- Industrial designs: These are the particular designs patented by a company, which cannot be used, sold; this applies for the registered design of a company.
- Geographical Indications: Under Geographical Indications of Goods (Registration and
Protection) Act, 1999 the parliament makes sure regarding the registration of goods to provide the geographical indications to prevent the usage of third party which makes to lose the originality of the goods.
- SUGGESTIONS
The issue of IPR law is always a debatable topic across the world, but for India it has always been an underrated one. The amendments being regular for the due course of time has always been a merit for the laws governing India as it becomes mandatory for a change in this dynamic modernized world. The importance of chemical industry to avail patent is often a neglected topic of debate for the laws in India rather than the provisions available in abroad. Over the past five years, India has taken appreciable positive measures to uplift the standards of IPR in the society.
The encouragement of IPR literacy becomes mandatory nowadays for the better future in the classes of schools to make them know about the bases of literary works and their importance. India must focus on the provisions for the applicability of Pharmaceuticals and agrochemicals and suppress the unauthorized disclosure of the information regarding the innovations which are patented or copyrighted. Stringent laws could be enforced so that no one’s rights could be violated and every author or the right holder gets their credit.
- CONCLUSION
The Intellectual Property rights are the most necessary rights across the globe in valuing the credits for the work which are out of the creativeness and innovation of each and every individual person. It is one of the demanded concepts in the recent market of trend exploring and encouraging the national and international interests of an individual to get admitted based on the innovative nature. This also helps in safeguarding the trade secrets which acts as a working formula of an institution or a company.
Concluding the topic, it is evident that IPR not only gives credit to the invention also aims in the financial benefits of the individual which also promotes the economic growth of the nation in various ways if at all stringent laws to be imposed to control the violation of patent or copyright rights causing infringement.
AUTHOR
Sujitha S,
4th Year BA LLB (Hons)
School of Law,
Sathyabama Institute of Science and Technology.
[i] ET Bureau: India ranked second last in Intellectual Property Index, http://articles.economictimes.indiatimes.com/2015-02-04/news/58795926_1_ip-environment-gipc-intellectualproperty-index (accessed on 6 June 2023)
[ii] The Copyright Act, 1957, § 13, No. 14, Acts of Parliament, 1957 (India)
[iii] The Copyright Act, 1957, § 22, No. 14, Acts of Parliament, 1957 (India)
[iv] The Copyright Act, 1957, § 51, No. 14, Acts of Parliament, 1957 (India)
[v] Hawkins Cooker Ltd. vs Magicook Appliances 100 (2002) DLT 698
[vi] Lalit Jajpura,a Bhupinder Singha and Rajkishore Nayak, An Introduction to Intellectual Property Rights and their Importance in IndianContext, Vol 22, January 2017, pp 32-41, JOURNAL OF INTELLECTUAL PROPERTY RIGHTS, 32, 33-34 (2016)
[vii] The Patents Act, 1970, § 92, No. 39, Acts of Parliament, 1970 (India)
[viii] WIPO, https://www.wipo.int/pct/en/faqs/faqs.html (last visited June 12 2023)
[ix] Dr. Kausar Unnisa, Intellectual Property Rights and its Significance for Business, Volume 10, INTERNATIONAL JOURNAL OF CREATIVE RESEARCH THOUGHTS (IJCRT), d562, d564 (2022)
[x] Sreeragi R.G, Intellectual Property Rights (IPR): An overvie, Vol:1 Issue:2, EMPEROR INTERNATIONAL JOURNAL OF LIBRARY AND INFORMATION TECHNOLOGY RESEARCH, ISSN : 2582-6972(O), 27, 28 (2021)
[xi] The Trade Marks Act, 1999, § 29, No. 47, Acts of Parliament, 1999 (India)
[xii] Coca Cola Vs Bisleri International Pvt. Ltd. & Ors, 2009 (41) PTC 460 (Del)