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The Emerging Importance Of IPR
GROWING AWARENESS
ECLIPSE OF NATIONAL BOUNDARIES
HARMONISATION OF LAWS
THE NEXT ECONOMY OF IDEAS
What Is WTO ?• Int. body dealing with rules of trade bet. Nations• governed by the agreements signed between nations• agreement on harmonizing commercial laws • Basic Principles :
- Non-discrimination between countries- Non-discrimination within a country- Gradual movement towards Free Trade- Predictability- Promoting Competition
FORMS OF INTELLECTUAL PROPERTY
COPYRIGHT
TRADEMARKS
GEOGRAPHICAL INDICATIONS
INDUSTRIAL DESIGNS
PATENTS
INTEGRATED CIRCUITS
UNDISCLOSED INFORMATION
What is Intellectual Property ?
Property created as a result of intellectual creative effort or commercial reputation and goodwill.
Basic Form : Intangible Territorial
Statutory/Common law Prov.’s
NATURE OF INTELLECTUAL PROPERTY
• IP IS AN INTANGIBLE PROPERTY
• SET OF RIGHTS
( Different set of rts. for diff. IPs)
- RT. TO EXCLUSIVE USER
- RT. TO PREVENT OTHERS
- RTS. ENCAPSULATED IN A TIME FRAME
- RT. TO ASSIGN, TO LICENSE
- INHERITABLE
BROAD SCOPE OF IP LAWS
NATURE OF THE PROPERTY
MODE/S OF ACQUISITION
NATURE OF RIGHTS CONFERRED
COMMERCIAL EXPLOITATION
ENFORCEMENT OF RIGHTS / REMEDIES AVAILABLE AGAINST
INFRINGEMENT
TRADE & SERVICE MARKS
WHAT IS A TRADE MARK
a mark used or proposed to be usedin relation to goods for the purposeof indicating a connection in the course of trade between the goods and some person having the rightto use the mark
TRADE & SERVICE MARKS
What is a MARK :includes a device brand
heading label ticket name signature word letter numeral OR any combination thereof
shape of goods, packaging, colour - TMA’99
Sound, Smell - also marks - NOT in India
FUNCTIONS OF A TRADEMARK
Traditional Role • distinguish the products of one manufacturer from those of another• indicate the source or origin of the goods• represent the goodwill of the manufacturer
TM as a part of the marketing mix• Guarantee of QUALITY• Guarantee of AUTHENTICITY• Create a feeling of TRUST• Aid to Branding
Some Famous Brands ( Trade Marks )
Mercedes Benz for vehiclesCoca Cola for beveragesIntel for computerCrocin for pharmaBournvita for food stuffMGM - roar of Lion for entertainmentTaj Hotels for hotelsNike for shoes501 Bar for soaps
STATUTORY REQUIREMENTS TO REGISTRATION
BROADLY
MARK MUST BE DISTINCTIVE ADAPTED TO DISTINGUISH MUST NOT CONFLICT MUST NOT DECEIVE NOT CONTRARY TO LAW MUST NOT BE SCANDALOUS / OBSCENE MUST NOT HURT RELIGIOUS SENTIMENTS
Rights of a trade mark owner :
• to use • to prevent others from using similar or deceptively similar marks• protection also extended to related classes• statutory protection
™
PASSING OFF
• UNREGISTERED TRADEMARK• IS A TORT • FRAUDULENT INTENTION IS NOT NECESSARY• MISREPRESENTATION NEED NOT BE DIRECT• BUT MUST BE MADE TO PROSPECTIVE CUSTOMER• INJURY - A FORESEEABLE CONSEQUENCE• ACTUAL DAMAGE / QUIA TIMET ACTION
CASES : KODAK V/S KODAK LEGO V/S LEGO IRRIGATION
A few instances of trademark disputes
Vaseline Vanildene Amrutanjan Amrutmanthan Godrej Goldage Double Bubble Rustom Ruston Rysta Aristo
Service Marks
Marks Which Are Capable Of Distinguishing Services
New Provision - 1999 TMA
InsuranceBankingHotelsLaundryEducationTransportResearch Laboratories
COPYRIGHT
MEANING OF COPYRIGHT : Right To
reproduce the work ( incl. Storing )issue copies of the workperform work in publiccommunicate the work to the publicmake translation
make adaptationsell or give on hire
COPYRIGHT
Copyright subsists in original
literary, dramatic, musical & artistic workscinematographic films sound recordingswhich are either first published in India, ..
COPYRIGHTS
Range Of Copyright Protection
Product Packaging Scenic Arrangement Paintings Sculpture Drawings ( maps,..) Engravings Photographs Architectural Works Computer Software Research Papers Computer databases Choreographic work
Some Important Concepts :
- No Copyright in ideas, themes,principles- Artistic Quality ?- Copyright subsists in an identical work - Rule : Creation must be independent- Term Of the Copyright : Life + 60 years- Author’s Moral Rights - Registration Of Copyright not a pre-requisite- Fair Dealing, Back-ups, Educational purposes
COPYRIGHTS
Designs Act A registered design includes
features of shape, configuration, pattern, ornament or composition of lines or colours,
Applied to any article
either in two or three dimensions or in both forms by any industrial processwhich in the finished article appeal to and are judged by the eye.
Important Provision of the Copyright Act, 1957
Sec 15 :
(1) Copyright shall not subsist in this Act in any design which is registered under the Designs Act, 1911.
(2) Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.
Geographical Indications
Protection Given To :
indications which identify goodsas originating from/manufactured ina particular territorywhere a given quality, reputation or
other characteristics of the goodsis essentially attributable to that region
Objective : Customers must not be misledMarking must not misleadNo DilutionEconomic prosperity
Darjeeling TeaBasmati RicePaithani SarisKolhapuri ChappalsScotch WhiskyRockford CheeseChampagne
Features Of A G I Statute :
No individual ownershipOwnership by association of persons
Registration Validity : 10 yearsNo assignment , licensing or mortgageUnauthorised use has Civil / Criminal liab.
Importance of a G I statute :Under Trips, protection only if reciprocal protection
Currently no specific Law in Force
PROTECTION OF UNDISCLOSED INFORMATION
BETTER KNOWN AS
TRADE SECRETS
Definition Of A Trade Secret
is an information which
is a SECRET
has been INTENTIONALLY treated as such
is capable of COMMERCIAL application
involves an ECONOMIC interest
Characteristics of a Trade Secret
• Concept of ‘sufficiently developed’
• No necessity of Novelty
• Inventiveness not a pre-requisite
• Important requirement => SECRET
• Exercise of Skill and Effort
• Desire of Confidentiality
Subject Matter of Trade Secrets
• Any formula, pattern or device or compilation of information which is used in one’s business and which gives the owner over competitors who do not know or use it.e.g. chemical compound, a process of manufacture, treating or preserving material, a pattern for a machine other other device or a list of customers, detailed manufacturing drawings, tolerance data, training materials, source code, etc.
Is Every Confidential Information A Trade Secret ?
An idea is usually not regarded as property
because the concept of property implies
something that can be owned and possessed to
the exclusion of others.
Some element of originality/novelty is necessary
for a claim of ownership in an idea or concept
Some qualifications on trade secrets• Nothing unlawful about seeking to learn about a
competitor’s products or processes provided no unlawful methods are employed
• Disclosure made in confidence
• Imposes liability not only on those who wrongfully misappropriate trade secrets by breach of confidence, but also in certain conditions, on others who might benefit from the breach
• Does not bar lawful reverse engineering
TS and PATENT any apparent conflict ?
Trade Secret
Exclusivity : if secret Ownership : by
possession
No protection against honest discovery
Unltd. duration of right
Patent
Exclusivity: Disclosure
Ownership : by State Duration : limited
Applies to Inventions Only
Enforced also against innocent
infringers