Intellectual Property Rights explained

The privileges granted to people over their mental or creative works are intellectual property rights. They often grant the inventor the sole right to utilise their invention for a specific amount of time.

Intellectual property rights, or IPR for short, refer to the legal rights that protect the creators of original works from unauthorised use or reproduction of their creations. These rights include patents, trademarks, copyrights, industrial design and geographical indication.

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Objectives of IPR

The objectives of intellectual property rights include:

1. Encouraging Innovation

Intellectual property rights provide creators, inventors and businesses with an incentive to invest time and money into developing new technologies, products, and works of art by granting them legal rights to their creations. This helps to encourage innovation and creativity in various fields.

2. Protecting Creators

Intellectual property rights protect creators, inventors and businesses from unauthorised use or reproduction of their creations.

3. Promoting Fair Competition

Intellectual property rights help to promote fair competition by protecting confidential business information, such as trade secrets and preventing others from using similar logos, slogans and other identifying marks.

4. Protecting Consumers

Intellectual property rights help protect consumers by ensuring they can access high-quality, authentic products and trust the source of goods or services. Trademarks and copyrights help to prevent confusion or deception, while patents and trade secrets allow companies to protect their confidential information from unfair competition.

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5. Facilitating International Trade

International conventions, such as the Berne Convention, Paris Convention and TRIPS agreement, have been established to protect intellectual property rights and facilitate international trade by ensuring that creators are properly compensated for their creations and that consumers are protected from confusion and deception.

Types of Intellectual Property Rights

Here are the five types of IPR, with each briefly explained:

1. Patent

A patent is a right granted exclusively to an invention of a product that provides a new way of doing something unique or a completely new box concept that offers an innovative & unique solution to a problem.

A patent is granted for a limited period of time, which is generally 20 years.

A patent is necessary for the current era of the competitive market and to maintain sustainability in industrial reforms. In general, an innovation must meet specific requirements to be protected by a patent.

The eight points below represent the specific requirements an innovation must meet to qualify for patent protection.

  1. Novelty: The invention must be new and not obvious to someone skilled.
  2. Non-obviousness: The invention must not be obvious to someone skilled.
  3. Utility: The invention must be useful and have some practical application.
  4. Enablement: The invention must be fully described in the patent application so that someone skilled can understand how to make and use it.
  5. Best mode: The patent application must describe the best way known to the inventor to make and use the invention.
  6. Disclosure: The invention must be fully and completely disclosed in the patent application, with all information necessary for someone skilled in the field to replicate it.
  7. Not an abstract idea: It should not be an abstract idea but a working model or prototype.
  8. Not a law of nature or natural phenomenon

According to the Indian Patent Act of 1970, an invention is defined as a new and valuable product or process involving an inventive step or a new and useful improvement of an existing product or process.

Section 2(1)(j) of the Indian Patent Act defines “invention” as “a new product or process involving an inventive step and capable of industrial application.”

An “inventive step” is defined in section (1)(ja) as something that is not obvious to a person having ordinary skills in the relevant field.

According to the Indian Patent Act, a “new invention” is defined in section 2(1)(l) as a product or process that involves an inventive step and is capable of industrial application.

Hypothetical example: Introducing a microwave for the first time is a new invention, whereas modification in the technology, like now certain plastic bowls can also be used to microwave items, will come under inventive steps.

2. Trademark

A trademark is a symbol, design, or other distinctive sign used to identify and distinguish a particular company’s goods or services from those of others. Trademarks are legally protected to prevent others from using similar marks that may confuse consumers.

Trademarks can be words, logos, sounds, colours, or a combination of these elements. They can be used to protect products, such as clothing, electronics, and food, as well as services, such as consulting, advertising, and legal services.

With this trademarked system, customers may recognise and buy products based on the distinctive trademarks that define their unique qualities. The period of protection varies in the trademark, but a trademark can be renewed upon payment of corresponding fees.

Examples of trademarks include:

  • Apple (for computer technology)
  • Nike (for athletic apparel and footwear)
  • Coca-Cola (for soft drinks)
  • McDonald’s (for fast food)
  • Amazon (for e-commerce)

These trademarks are recognised worldwide and are instantly associated with the products or services they represent. A strong trademark can help a company build brand recognition, establish customer loyalty, and create a competitive advantage in the marketplace.

Related: Smell Marks – Scope and Development in the Indian Trademark Law

3. Industrial Design

Creating and designing tangible things is the emphasis of the design discipline known as industrial design. It entails applying technical concepts, ergonomics, and aesthetics to design visually attractive and useful mass-produced items.

Work on a variety of items, including consumer goods, electronics, furniture, medical devices, and automobiles, is done by industrial designers.

Industrial designers strive to produce visually pleasing, simple-to-use, dependable, and effective goods.

Industrial design involves many steps, including research and analysis, sketching and prototyping, and testing and refining the final design. The designer must consider materials, manufacturing processes, and costs to create a functional and economically feasible product.

The duration of Industrial Design protection is usually 20 years.

Industrial design can significantly impact a company’s success, influencing consumer purchasing decisions, brand recognition, and the overall perception of the company and its products. As a result, many companies invest in industrial design to create products that stand out in the marketplace and meet the needs and expectations of their customers.

4. Geographical Indication

A geographical indication (GI) is a type of intellectual property right that identifies a product as originating from a specific geographical location and possessing qualities or a reputation due to that origin.

A geographical indication protects traditional and unique products produced in a particular region and has a reputation for their quality, taste, and other unique characteristics.

For example, Darjeeling tea is a famous geographical indication from the Darjeeling district in West Bengal, India, known for its unique flavour and aroma.

Geographical indications protect products from imitation and exploitation and prevent others from using the same or similar names that may mislead consumers.

In India, the Geographical Indication of Goods (Registration & Protection) Act of 1999 protects and governs geographical indications. This Act provides that the registration of Geographical Indication shall be for ten years and renewed for another ten years by an application made in the prescribed manner.

For More: What Is Geographical Indication and Its Examples in India?

The Copyright Act of 1957 governs copyright in India. It protects original literary, dramatic, musical, and artistic works, sound recordings, cinematographic films, and computer software.

In India, copyright protection is automatic and exists when the work is created and fixed in a tangible form without registration. However, registering a copyright with the Indian Copyright Office can provide additional legal benefits and make it easier to enforce your rights in case of infringement.

The copyright holder has the exclusive right to reproduce, distribute, and perform the work and make adaptations or derivatives of the work. These rights can be licensed or transferred to others only with the copyright holder’s permission.

The duration of copyright protection in India is generally the creator’s life plus 60 years after their death for literary, musical, and artistic works and 60 years after the first publication of cinematographic films and sound recordings.

In India, copyright law provides a balance between the rights of creators and the interests of users, allowing for limited exceptions such as fair use and fair dealing for criticism, commentary, news reporting, teaching, scholarship, or research.

Overall, copyright in India is an important form of legal protection for creators. It allows them to control the use of their works and monetise their creations through licensing sales and other forms of revenue generation.

Related: What Is Copyright Infringement and Its Remedies in India?

International Conventions

International conventions for Intellectual Property Rights are agreements and treaties that establish a framework for the protection of intellectual property rights across the world. Several important international conventions are relevant to IPR, some of them are:

1. Paris Convention

Patents, trademarks, industrial designs, and geographical indications are all protected by the Paris Convention, an international agreement. The World Intellectual Property Organisation (WIPO) is in charge of carrying out the terms of the 1883 Paris Convention.

The Paris Convention provides several important provisions for the protection of industrial property rights, including:

  1. National treatment: Convention members must provide the same level of protection to foreign nationals as they provide to their nationals concerning industrial property rights.
  2. Right of priority: The convention provides for a right of priority, which allows a person who has applied for a patent, trademark, or industrial design in a one-member country to claim the same priority in other member countries within a specified period of time.
  3. Central attack: The Paris Convention provides a mechanism for challenging the validity of industrial property rights in multiple countries through a central attack, which allows a person to file a single request for the revocation of a patent, trademark, or industrial design in multiple countries.
  4. Common rules: The convention provides common rules for the protection of industrial property rights, including provisions for the filing, examination, and grant of patents, trademarks, and industrial designs.

Overall, the Paris Convention provides a basic framework for protecting industrial property rights in multiple countries, helping to promote innovation and investment in developing new technologies and ideas. The convention has been ratified by 176 countries, making it one of the most widely recognised and important international treaties for protecting intellectual property rights.

2. Berne Convention

The copyright of literary and artistic works, including books, music, films, and other forms of creative expression, is protected by the Berne Convention, an international agreement. The World Intellectual Property Organisation (WIPO) is in charge of carrying out the 1886 Berne Convention.

The Berne Convention provides several important provisions for the protection of copyright, including:

  1. National treatment: Members of the convention must provide the same level of protection to foreign nationals as they provide to their nationals concerning the copyright in literary and artistic works.
  2. Automatic protection: The Berne Convention provides automatic protection for copyright in literary and artistic works, meaning that no formal registration or other action is required for copyright to be in effect.
  3. Moral rights: The Berne Convention provides for the protection of moral rights, which include the right of an author to be recognised as the creator of a work and the right to object to any modifications or distortions of the work that would harm the author’s reputation.

Overall, the Berne Convention provides a basic framework for protecting copyright in literary and artistic works worldwide, helping promote creativity and investment in developing new works and technologies. With 176 countries having ratified the convention, it stands as a highly esteemed and influential international treaty for upholding intellectual property rights.

3. Patent Corporation Treaty

The Patent Cooperation Treaty (PCT) is an international treaty that provides a simplified and standardised process for filing patent applications in multiple countries. The PCT was signed in 1970 and is administered by the World Intellectual Property Organization (WIPO).

The PCT provides several benefits for inventors and companies seeking to protect their inventions, including:

  1. Centralised filing: The PCT provides for the centralised filing of patent applications, allowing an inventor or company to file a single application that can be processed and reviewed by multiple countries.
  2. International search: The PCT provides for an international search, which is a comprehensive examination of the invention to determine its novelty, inventive step, and industrial applicability.
  3. International publication: The PCT provides for international patent application publication, making the invention publicly available to interested parties worldwide.
  4. Delay in national filings: The PCT provides a delay in national filings, allowing the inventor or company to assess the commercial viability of the invention before incurring the costs and efforts of filing for patents in multiple countries.
  5. Harmonised procedures: The PCT provides for harmonised procedures, which standardise the patent application process and reduce the time and cost of filing patents in multiple countries.

Overall, the PCT provides a streamlined and cost-effective process for filing patent applications in multiple countries, helping inventors and companies protect their inventions and bring new products and technologies to market. The PCT has been adopted by over 150 countries, making it a highly significant international treaty for intellectual property rights.

4. World Intellectual Property Organization (WIPO)

The World Intellectual Property Organization (WIPO) is a specialised agency of the United Nations (UN) responsible for promoting the protection of intellectual property rights worldwide.

WIPO was established in 1967 and has its headquarters in Geneva, Switzerland.

It administers and manages international treaties for IP protection, provides technical assistance to countries, promotes cooperation and collaboration, and conducts research and studies on IP issues. WIPO is crucial in promoting IP rights and fostering innovation and economic growth.

What Have We Learned

IPR is an important aspect of modern society, as it promotes innovation and creativity while ensuring that the creators and owners of these works are properly recognised and rewarded for their efforts. However, IPR also raises complex issues, such as balancing the rights of creators and owners with the need for access to and use of these works for the public good.

The effective protection and management of IPR require careful consideration and cooperation among governments, businesses, and individuals.

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Suhani Dhariwal
WritingLaw » Law Notes » Understanding Intellectual Property Rights – Law Note Law Study Material
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