INTELLECTUAL PROPERTY RIGHTS
Intellectual property is the creative work of the human intellect. The main motivation of its protection is to promote the progress of science and technology, Arts, literature and other creative works and to encourage and reward creativity. Nations give statuary expression to the economic rights of creators in their creations and to the rights of public in accessing those creations .This is instrumental in promoting creativity and dissemination and application of its results. The economic and technological development of nation will come to a halt if no protection is given to intellectual property. Therefore the contribution of intellectual property is sine qua non for the industrial and economic development. The prosperity achieved by developed nation is to a large extent the result of exploitation of their intellectual property.
Intellectual property has assumed central importance throughout the world in the recent past. The intellectual property, which was mainly the subject matter of the WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) has also become a part of the world trade organization (WTO) regime in 1995. The agreement on trade related aspect of intellectual property rights including trade in counterfeit goods (TRIPS AGREEMENT) of WTO treaty evolved minimum standard for the member state to incorporate municipal laws.
TYPES OF INTELLECTUAL PROPERTY RIGHTS COPYRIGHT In India, copyright subsists in (1) Original literary, dramatic, musical and artistic works (2) Cinematograph films (3) Sound recording The copyright law generally provides to the owner of copyright the right to reproduce the work in any material form to issue copies of the work to the public to perform the work in any material form, to issue copies of work, to make translation of work, to make adaption of work etc..
INDUSTRIAL PROPERTY Industrial property is a kind of intellectual property and thus relates to creation of human mind. Such creations are mainly inventions and industrial design. Inventions are new solution to technical problem and designs are aesthetic creation determine the appearance of industrial products.
PATENTS Patent means monopoly right granted to person by the patent office to exploit his invention for a limited period of time. In India, a patent is granted for a period of 20 years. During this period, the inventor is entitled to exclude anyone else from commercially exploiting his invention. The exclusive rights of the inventor can be exercised by person other than the inventor with letters of previous authorization. The person to whom patent is granted is known as patentee.
The grant of patent not only recognizes and rewards the creativity of the inventor but also acts as an inspiration or catalyst for further inventions which ultimately contributes to technological development of a nation. An invention is only patentable when its new, involves an inventive step and capable of industrial application. TRADEMARK A trademark includes any device, brand, heading, label, ticket, name, signature, word, letter shape of goods, packaging and any combination there of. A trademark should be capable of being represented graphically and should also be capable of distinguishing the goods or services of one person from those of others. • It protects the public from confusion and deception by identifying the source or origin of particular product. • It protects trademark owner’s trade, business as well as the goodwill which is attached to his trademark.
DESIGNS Design is applied to an article in two dimensional or three dimensional form or in both the forms. Thus as a general rule a design consist of : • Three dimensional features, such as shape of product. • Two dimensional features, such as ornamentation, patterns, lines or color of product • Combination of one or more such feature The design must be such that in the finished article the features of it appeal to and are judged solely by the eye. A good subject of design must be visually appealing, though it need not be an artistic work or possess artistic merit.
PLANT VARIETIES Under protection of plant varieties and farmers rights act, 2001 a new variety is registerable only if it conforms to the criteria of novelty, distinctiveness, uniformity and stability. The criterion of novelty is not applicable for registration of extant variety.
The act provides for establishment of an effective system for protection of plant varieties, the right of farmers and plant breeders in India. It encourages the development of new plant varieties.
GEOGRAPHICAL INDICATION Geographical Indication indicates that particular goods originate from a country, region or locality and has some special characteristics, qualities or reputation which is attributable to its place of origin. These special characteristics, qualities, reputation maybe due to various factors ex. natural factors such as raw material, soil, climate, temperature. The connection between the goods and place becomes so famous that any reference to the place reminds the goods being produced there and vice a versa. For ex. district of champagne, France brings to mind the wine Champagne which is produced here.
INFRINGMENT OF COPYRIGHT Section 51 of Copyrights Act provides that When copyright infringed.—Copyright in a work shall be deemed to be infringed—(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act—
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]" (b) when any person— (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports 2[***] into India, 2[***] into India," any infringing copies of the work: 3[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation.—For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
RG ANAND VS DELUX FILMS The Court after referring to several judicial decisions made the following observations: i. There exists no copyright in relation to an idea, subject matter, themes, plots or historical or legendary facts. Infringement is restricted only to the form, manner, arrangement and expression of the idea by the author of the copyright work. ii. When the author develops and acts upon the same idea it is bound to have a common source and similarities. In such circumstances the Court should settle on whether the similarities are substantial or fundamental in nature or not with respect to the mode of expression adopted in the work. If substantial or fundamental portion has been copied, then it would amount as infringement. iii. The other reliable test to ascertain whether there is an infringement or not is to analyse the impression created on the spectator or reader subsequent to reading or watching the works. If they believe that the consequent work is an imitation of the original work, it will definitely amount to infringement. (Lay Observer Test) iv. In case where there is a common theme but the presentation and treatment is dissimilar such that the subsequent work itself becomes a new work, it will not result in violation of copyright. v. Existence of broad and substantial dissimilarities negates the fact that there was an intention to copy the original work and the similarities will be considered to be merely coincidental. vi. Cogent and clear evidence along with correct application of the tests discussed above is required to prove that violation of copyright results to an act of piracy. vii. When the issue relates to the infringement of copyright of stage play done by the producer of a film or Director, it has to be kept in mind that in contrast with a play a film deals with a broader prospective, a larger area and a greater background where the Defendant has the liberty to introduce a multiplicity of incidents in order to give colour and complexion to it making it dissimilar from the way in which the copyrighted work has articulated the idea. Despite this, if the viewer after watching the film gets a general impression that film in general is an imitation of the play, it will amount to violation of the copyright.
PENGUIN BOOKS LTD VS INDIA BOOK DISTRIBUTORS AND OTHERS Delhi high court stated that it is also an infringement of copyright knowingly to import into India for sale or hire infringing copies of a work without the consent of the owner of the copyright, through they may have been made by or with the consent of the owner of the copyright in the place where they were made. In America the subject books were lawfully published, it is true. But they cannot cross the borders of India without infringing the copyright of the exclusive licensee.
Infringement of trade mark
SECTION 29 of Trade Marks Act, 1999 provides for Infringement of registered Trademarks.—
- (1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.
- (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of—
- (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or
- (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or
- (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.
- (3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.
- (4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which— (a) is identical with or similar to the registered trade mark; and (b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and (c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark. (5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered. (6) For the purposes of this section, a person uses a registered mark, if, in particular, he— (a) affixes it to goods or the packaging there of; (b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark; (c) imports or exports goods under the mark; or (d) uses the registered trade mark on business papers or in advertising. (7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee (8) A registered trade mark is infringed by any advertising of that trade mark if such advertising— (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its distinctive character; or (c) is against the reputation of the trade mark. (9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.
A person, who is not an authorized user of a registered geographical indication infringes it when he -
- I. Uses such geographical indication by any means in the designations or presentation of goods that indicates or suggests that such goods originate in geographical area other than the true place of origin of such goods in a manner which misleads the person as to the origin of such goods; or
- II. Uses any geographical indication in such manner which constitutes an act of unfair competition including passing off in respect of registered geographical indication;
- III. Uses another geographical indication to the goods which,although literally true as to the territory ,region or locality in which the goods originate ,falsely represents to the persons that the goods originate in the territory ,region or locality in respect of which such registered geographical indication relates.