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Chapter 03 intellectual property

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  • 1. INTELLECTUAL PROPERTY CHAPTER 3 ENTREPRENEURSHIP

2. Chapter Objectives

  • To understand the importance of intellectual property in modern business
  • To explain the laws protecting trademarks, patents, designs, copyrights and other intellectual property
  • To describe the procedure for registration of trademarks, patents, etc.
  • To develop a strategy for building and protecting intellectual property
  • To comprehend the significance of trade secrets and other confidential information

3. IP Laws in India

  • IP laws in India cover the following:
  • Trademarks
  • Copyright
  • Patents
  • Geographical indication of goods
  • Designs
  • Others including Semiconductor layout designs, plants and farmer rights and biological diversity.

4. Interesting Trademarks

  • numbers can be trademarks like in the case of 501 tea and 555 cigarettes
  • symbols like those of Mercedes Benz or apple computers
  • letters like in 3M, IBM, NIIT
  • Orange cellphone service has successfully managed to include the colour orange as its trademark.
  • sound like MGMs roar of the lion can also be a trademark
  • Sumitomo tyres has registered a rose like smell as its trademark

5. Assignment of Trademarks

  • Trademark search
  • Application for registration
  • Receipt and examination
  • Acceptance, advertisement and opposition
  • Cancellation

6. Particulars of Application

  • The class of goods for which the mark is sought. Classes can be textiles, food and confectionery, machine tools, etc.
  • Definition of goods which is sought to be registered
  • Details of the applicant including name, age, occupation, address and nationality
  • Whether the trademark is in use or is proposed to be used. If in use, applicant must specify by whom and for what period.

7. Infringement of Trademarks

  • The allegedly infringing mark must be either identical or deceptively similar to the registered trademark;
  • The goods / services in relation to which the allegedly infringing mark is used must be specifically covered by the registration of the registered trademark;
  • The use of the allegedly infringing mark must be in the course of trade; and
  • The use must be in such a manner as to render the use likely to be taken as being used as a trademark.

8. Copyright

  • Copyright confers protection to:
  • Literary works
  • Dramatic works
  • Musical work
  • Artistic works
  • Cinematographic films and sound recordings

9. Dimensions of Copyrights

  • Idea Expression
  • Originality
  • Fixation
  • Fair use

10.

  • Creators can prohibit others to:
  • reproduce the work in any form, such as print, sound .video, etc
  • record the work in a compact discs, cassettes, etc
  • broadcast it in any form
  • translate it to other languages
  • use the work for a public performance, like a stage drama or musical performance

11. Patents

  • The following are criteria for patentability:
  • Novelty
  • Utility
  • Inventive step

12.

  • The following are not patentable:
  • Inventions which are frivolous or contrary to established natural laws
  • Inventions, the primary use of which, are contrary to morality or can cause harm to humans or the environment
  • The mere discovery of a scientific principle without manifesting it in a product
  • Discovery of a new use of an existing substance
  • A new method of agriculture
  • A business method
  • A manufacturing process

13. Patent Filing process

  • Filing application
  • Publication of the application
  • First examination report
  • Grant
  • Post-grant opposition

14. Assigning Use of Patent

  • A patent holder may assign a patent to a 3 rdparty. Their agreement will have the following elements:
  • The term of the agreement
  • The territorial exclusivity of the rights
  • Financial terms including payments of fixed and variable amounts to the patent holder
  • Specification of production capacities to be set up and marketing budget to be committed
  • Commitments from the patent holder regarding performance of the invention
  • Any other provisions which may be deemed necessary

15. Geographical Indication of Goods

  • The GI should pertain to a defined territory
  • A given quality or reputation should be attributable to goods originating from that region
  • Registration of a GI confers the right to use the GI in relation to goods for which GI is registered
  • Also, right to obtain relief in case of infringement
  • Rights under GI Act, cannot be assigned, transferred or transmitted.

16. Designs

  • Criteria for registration:
  • The design has to be original
  • Designs are registered only when they can be applied to an article
  • An article, in turn, is defined as any article of manufacture and any substance, artificial or natural, and includes any part of an article capable of being made and sold separately.
  • The elements of design must be capable of existence separate from the article on which they have been applied.
  • The design must be of a distinctive nature and must appeal to people.

17.

  • The following designs will not qualify for protection under the Design Act:
  • Methods or principles of construction
  • Features dictated by function
  • A mechanical device
  • A trademark
  • Designs which can be construed as immoral

18. Other IP Laws

  • The Protection of Plant and Varieties and Farmer Rights Act, 2001
  • The Biological Diversity Act, 2002
  • Semiconductor Integrated Circuits Layout Act, 2000

19. Non Disclosure Agreement

  • NDA should have the following elements:
  • An NDA should define what information is confidential.
  • Agreements should have clauses on restrictions on disclosure, copy and use of information
  • Restrictions on use of information when in employment and upon termination of employment.
  • Requirements relating to return of confidential documents and paperwork upon termination of association
  • Specification of penal clauses like withholding salary, imposing fines, etc
  • Addition of non-compete clause in an NDA prevents employees and vendors from setting up competing businesses or helping competitors.
  • Care should be also taken to ensure that employees do not violate the rights of third parties.

20. Protecting Trade Secrets

  • Employees should be made to realize their responsibility to protect confidential material.
  • Employees should be educated to identify confidential material
  • Data and information which is confidential should be marked as such.
  • Access to sensitive material or sensitive areas of the workplace should be restricted on a need to know basis
  • Interactions and disclosure to third parties should be channeled through specified responsible employees
  • When leaving an organization, an employee should be reminded of his obligations with respect to confidential information through an exit interview.
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