INTELLECTUAL PROPERTY RIGHTS

This Article has been written by Siddharth Sanjay Dubey, Second-year student, CWC Law College, Mumbai University.

INTRODUCTION

What is Intellectual Property?

In simple language Intellectual property is an intangible asset that is a creation of a human mind, for example, if an author writes any book or an article then he has certain rights on the property. The book or the article is that tangible asset, that writer possesses some rights. A book, a distinctive logo design representing a Food chain company or its product, the unique design of a web company, or a patent process to manufacture T-shirts, these all are examples of Intellectual Property.

Intellectual Property refers to the creation of the mind like inventions, literary and artistic work, and symbols, names, images, designs used in commerce.

What are Intellectual Property Rights?

We all can understand Intellectual Property Rights as rights given to people over the creation of their minds to protect their creative idea. They usually get some exclusive rights over their use for a certain period.

Categories of Intellectual Property.

Broadly one can classify the various form of IPRs into two categories.

 IPRs that stimulate inventive and creative activities (patents, utility models, industrial designs, copyright, plant breeders’ rights, and layout designs for integrated circuits) and

 IPRs that offer information to consumers (trademarks and geographical indications). IPRs in both categories seek to address certain failures of private markets to provide for an

efficient allocation of resources

IP is divided into two categories for ease of understanding:

1. Industrial Property

2. Copyright

Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and

Copyright includes literary and artistic works such as novels, poems, and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.

Intellectual property shall include the right relating to:

i. Literary, artistic, and scientific works.

ii. Performance of performing artists.

iii. Inventions in all fields of human endeavor.

iv. Scientific discoveries.

v. Industrial designs.

vi. Trademarks, service marks, etc.

vii. Protection against unfair competition.

Duration of Intellectual Property Rights in a nutshell.

1) The term of every patent will be 20 years from the date of filing of the patent application, The date of the patent is the date on which the patent application is filed.

2) Copyright generally lasts for sixty years.

3) The registration of a geographical indication is valid for 10 years.

4) The duration of registration of Chip Layout Design is for 10 years counted from the date of filing an application for registration or from the date of first commercial exploitation anywhere in India or in any convention country or country specified by the Government of India whichever is earlier.

5) The duration of protection of registered varieties is different for different crops namely 18 years for trees and vines, 15 years for other crops, and extant varieties.

COPYRIGHTS

What is Copyright?

Copyright is the set of exclusive rights granted to the author or creator of original work, in the period the expression of an idea and not for the idea itself. For example, many authors write textbooks on physics covering various aspects like mechanics, heat, optics, etc. Even though these topics are covered in several books by different authors, each author will have a copyright on the book written by him/her, provided the book is not a copy of some other book published earlier.

Copyrights law in India.

The Copyright Act of 1957, The Copyright Rules, 1958, and the International Copyright Order, 1999 govern the copyright protection in India. It came into effect in January 1958. The Act has been amended in 1983, 1984, 1992, 1994, and 1999. Before the Act of 1957, copyright protection was governed by the Copyright Act of 1914 which was the extension of the British Copyright Act, 1911. The Copyright Act, 1957 consists of 79 sections under 15 chapters while the Copyright Rules, 1958 consists of 28 rules under 9 chapters and 2 schedules.

The Criminal Offence.

Any person who knowingly infringes or abets the infringement of the copyright in any work commits a criminal offense under Section 63 of the Copyright Act. The minimum punishment for infringement of copyright is imprisonment for six months with a minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction, the minimum punishment is imprisonment for one year and a fine of Rs. 1 lakh.

PATENTS

What is a Patent?

A patent is a grant for an invention by the Government to the inventor in exchange for full disclosure of the invention. A patent is an exclusive right granted by law to applicants/assignees to make use of and exploit their inventions for a limited period (generally 20 years from filing). The patent holder has the legal right to exclude others from commercially exploiting his invention for the duration of this period. In return for exclusive rights, the applicant is obliged to disclose the invention to the public in a manner that enables others, skilled in the art, to replicate the applicants/assignees (exclusive rights) and the interests of society (disclosure of invention).

Who can apply for Patents?

The inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee.

TRADEMARK

What is Trademark?

Trademark (popularly known as brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals, or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

 The selected mark should be capable of being represented graphically (that is in the paper form).

 It should be capable of distinguishing the goods or services of one undertaking from those of others.

 To indicate or to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without the identity of that person.

The function of the trademark.

Trademark performs four functions –

 It identifies the goods / or services and their origin;

 It guarantees its unchanged quality;

 It advertises the goods/services;

 It creates an image for the goods/ services.

Trademarks Law in India.

The Trade Marks Act, 1999 and the Trade Marks Rules, 2002 govern the law relating to Trade Marks in India.

The Trade Marks Act, 1999 (TMA) protects the trademarks and their infringement can be challenged by a passing off or/and infringement action. The Act protects a trademark for goods or services, based on either use or registration or basis of both elements.

Who can apply for a Trademark?

Any person claiming to be the proprietor of a trademark used or proposed to be used by him trademark of attorney, period of use of the mark, and signature. The application should be in English or Hindi. It should be filed at the appropriate office.

INTELLECTUAL PROPERTY RIGHTS(IPR) VALUATION.

Concept of IP Valuation

As a separate asset, IP must be attributed a value. An intellectual property valuation may be made for various purposes, each of which is reflected in the four major concepts of valuation:

i. Replacement cost: The value of the IP to the owner frequently determines the price in negotiated transactions as indicated by the owner’s view of its replacement cost.

ii. Market value: The basis of market value is the assumption that if the comparable property has fetched a certain price, then the subject property will realize a price something near to it.

iii. Fair value concept: This is, in essence, the desire to be equitable to both parties. It recognizes that the transaction is not in the open market and that vendor and purchaser have been brought together in a legally binding manner

Method of valuation

Market-based: the market-based value uses other recent similar market transactions as a reference to obtain the comparable market value of the intellectual property. The basis of the market value is the assumption that if the comparable property has fetched a certain price, then the subject property will realize a price something near to it.

Using determining the actual historical cost of generating the intellectual property or its replacement cost. In the latter case, valuation is determined by what it would cost to substitute or “design around” intellectual property protection.

Income-based: The value of IP, particularly a patent, depends on the predicted future cash flow to be derived through the exploitation of that patent. This, therefore, entails the determination of the cost or value contributed by the intellectual property and is often assessed by determining the volume of the product sold and the margin on that product to obtain the total profit made.

CONCLUSION

Intellectual Property Rights (IPR) is an intangible asset that is a creation of the human mind. Intellectual Property refers to the creation of the mind like inventions, literary and artistic work, and symbols, names, images, designs used in commerce. The duration of every patent will be 20 years from the date of filing of the patent application, irrespective of whether it is filed with provisional or complete specification. The Copyright Act of 1957, The Copyright Rules, 1958, and the International Copyright Order, 1999 govern copyright protection in India. Copyright gives protection for the expression of an idea and not for the idea itself. A patent is an exclusive right granted by law to applicants/assignees to make use of and exploit their inventions. The Trade Marks Act, 1999 and the Trade Marks Rules, 2002 govern the law relating to Trade Marks in India. Trademark performs four functions – – Identifying goods/services and their origin; guaranteeing their unchanged quality; advertising the goods/services; creating an image for the goods and services. The value of IP, particularly a patent, depends on the predicted future cash flow to be derived through the exploitation of that patent. Income-based valuation is determined by what it would cost to substitute or “design around” intellectual property protection.