The Intellectual Property Law

Sanjeev Kumar chaswal

Advocate IP & Attorney

High Court of Delhi

If you don’t see a problem with this question, you need this class!

The Property can be classifiedbroadly in to two categories:-

� Tangible Property

� Intangible Property� Intangible Property

Tangible Property

� This includes any equipment, furniture,fixtures, tools, signs, machinery orsupplies used in a business or for acommercial purpose, othercommercial purpose, other

than inventory, real estate, vehicles.Furnishings and appliances

Intangible Property

�Intangible property consists of humanknowledge and ideas and a personor corporation can have ownership of andcan transfer ownership of to anothercan transfer ownership of to anotherperson or corporation, but has no physicalsubstance. It generally refers to statutorycreations such as Copyright, Trademarks,Designs, or Patents

Types of Intellectual Property�Copyrights

�Trademarks

�Patents

�Industrial Design Rights

�Trade Secrets

�Geographical Indications

�Semiconductor Integrated Circuits Layout

�Plant variety rights

INTELLECTUAL PROPERTYINTELLECTUAL PROPERTY

�COPYRIGHT - relate to literaryor creative works

�TRADEMARKS - relate to product�TRADEMARKS - relate to productnames or symbols

�PATENTS - relate to inventions.

FOR MOST PRODUCTS EVERY FORM OF IP RIGHTS CAN BE OBTAINED

�CAMERA�

PATENT -For every individual improved mechanism

DESIGN For outer shape & Contour / Configuration

“TRADE MARK- Brand name or Logo for goods denoted as ®

Copy right- For Instruction / manual booklet denoted as ©

CD PLAYER

Industrial design protection for

Music played on the CD player is protected by copyright

protection for 3D shape

Brand name-registered under trademark

Varioustechnical parts& mechanismsare subjectmater ofprotectionunder Patents

FOR ALL PRODUCTS EVERY FORM OF ITS IP RIGHTS CAN BE OBTAINED

� Pressure Cooker

PATENT-For every individual improved mechanism

DESIGNFor outer shape & Contour & configuration

TRADE MARK Brand name or Logo for goods denoted as ®Copy right For Instruction / manual booklet denoted as ©

COPYRIGHT ©

� The Copyright Act provides comprehensiveprotection for copyrightable works. The Actoutlines the nature of works eligible forcopyright (which includes computersoftware), the scope of protection, and themanner in which the protection is accorded.manner in which the protection is accorded.There is no registration of copyrightworks. Copyright protection in literary,musical or artistic works is for the duration ofthe life of the author and 60 years afterauthor death.

works eligible for copyright

�are

�:(a) literary works;

�(b) musical works;

(c) artistic works;�(c) artistic works;

�(d) films;

�(e) sound recordings; and

�(f) broadcasts.

Copy right certificate

TRADE MARKS ™ ®�A trademark is a symbol, which isgenerally used to identify a particularproduct, which indicates its source. Atrademark can be a combination ofwords, phrases, symbols, logos, designs,words, phrases, symbols, logos, designs,images or devices, used by an individual,legal entity or business organization todistinguish their products from that ofothers.

Service Trademark

�Where a trademark is used inconnection with services, it may becalled “service mark”.

�Service marks are used by hotels,restaurants, airlines, tourist agencies,laundries and cleaners etc.

Trademarks & Service Marks

Trademarks & Service Marks

Trademarks & Service Marks

Registration contents in Trade Marks

NameLogotypeLogotypeSymbolSloganShapeColor

Not allowed / Not valid

• Violation of public order and morale

• Copy of earlier registration (bad faith)

• Withdrawal from register

• Not in use ( 7 years)

• Evolution into generic name Generic

terms: CHAIR to sell chairs

• Formica, cellophane, compact disc

Not allowed / Not valid�Descriptive terms: SWEET to sell chocolates

� Deceptive terms: “ORWOOLA” or “Purewhool” for 100% Synthetic materials.

� Do not use flags, armorial bearings, officialhallmarks, emblems without a legalauthorizationauthorization

�Disparages or falsely suggests a connectionwith persons (living or dead), institutions,beliefs, or national symbols.

�Depicts the flag or coat of arms or otherinsignia of India, or of any state ormunicipality, or of any foreign nation, or anysimulation thereof

Generics�Dixie Cups Cellophane�Corn Flakes Dry Ice

�Lanolin Mimeograph

�Monopoly Pogo Stick

�Raisin Bran Shredded Wheat

�Thermos Toll House�Thermos Toll House

�Trampoline Frisbee

�Hi-Liter Kitty Litter

�Kleenex Magic Marker

�Ping-Pong Popsicle

�Scotch Tape Sheetrock

�TV Dinners Wiffle Ball

Not allowed

Trade Mark ! Who is protected ?

�A trade mark is granted protection on the basis of

�First Adoption

�First User �First User

�First Inventor

�First Invention / Adoption/ User is superior then the Registration

TM Registration Process

TM Registration certificate

Patents:Patents are rights related to newinventions. This right is conferred onpersons who invent any new machine,process, article of manufacture orcomposition of matter, biologicaldiscoveries, etc. In order to grant adiscoveries, etc. In order to grant apatent, the invention should fit into thefollowing criteria, which may differfrom country to country. In general,the invention must be new, inventiveand should be useful or can be appliedin industries.

Patents Contd…..

The person who receives a Patent forhis invention has an exclusive rightto control others from making,using, selling, or distributing theusing, selling, or distributing thepatented invention withoutpermission. Generally, the time limitor life span of a patent is twentyyears starting from the date of thefiling of the patent application.

TYPES OF PATENTS GRANTED TO INVENTORS

Patent Granted in three categories:

�Utility Patents - new, useful, or improvedprocesses, machines, apparatuses, articles ofmanufacture, or compositions of matter

�Design Patents - new, original, andornamental designs for an article ofornamental designs for an article ofmanufacture

�Plant Patents - inventions, discoveries, orasexually reproduced distinct and newvarieties of plants; including cultivatedsports, mutants, hybrids, newly foundseedlings, and living organisms

Computer Patent Process

Patent registration certificate

Industrial Design Rights

�The design can be either two-dimensional(based on pattern, colors and lines) orthree-dimensional (as per shape andsurface).

� An industrial design right is conferredafter considering factors like, novelty,after considering factors like, novelty,originality and visual appeal.

�The person who has an industrial designright has the exclusive right to make orsell any objects in which the design isapplicable.

Industrial Design Rights

�Aesthetic aspects or outwardappearance that is applied to a product

�2 D like patterns, lines, composition,�2 D like patterns, lines, composition,colour; or

�3 D like shape; or combination of both2D & 3D

Designs

Industrial Design Rights

�The right is conferred for a period of5 year initially and further 5 yearson renewal.

�The creation of a new design that�The creation of a new design thatcan be used to give shape to athree-dimensional mass-producedarticle may possibly be registeredunder the Designs Act.

Registration process of Design

DESIGN DESIGN Vs.Vs. COPYRIGHTCOPYRIGHT

DESIGNDESIGN COPYRIGHTCOPYRIGHT

Complete monopoly Only protects against copying

Need to register to Subsists inherentlyNeed to register to claim protection

Subsists inherently

Has to be NOVEL No requirement for novelty

Maximum 15 years Life of author + 60 years

Only in respect of goods registered for

Is not goods specific

DESIGN AS A TRADEMARK

��SKBSKB vv.. HLLHLL

��TheThe “S”“S” shapeshape

��BothBoth designdesign rightsrights && trademarktrademark rightsrightswerewere claimedclaimed onon itit

��Design registration was cancelled during Design registration was cancelled during proceedingsproceedings

Safeguards for Design

�Apply for registration when design isfinal & BEFORE IT IS PUT INTO THEMARKET

�Very important to keep the designCONFIDENTIAL before filing of thedesign application and if need toshare it, enter into agreements

Certificate of design

Geographical Indication

�Certain geographical names haveacquired a lot of importance in thecommercial market, particularly withregard to the goods uniquelyassociated with such names. Anyagricultural goods, natural goods oragricultural goods, natural goods ormanufactured goods, or any goods ofhandicraft or goods of industryincluding food stuff, generally, bearsthe geographical indications to attractthe attention of the consumers.

Geographical Indication

�Traders attach considerable value tothe public recognizing the source,particularly the place of origin of thegoods, especially when the name ofthat place is taken as a synonymnecessarily after long and continuousnecessarily after long and continuoususe, for some special qualityassociated with the product originatingfrom that place. Example are:Darjeeling tea, Kanjeevaram silk, etc,

Registration of GI mark

U.S. Registration No. 2,685,923For “Tea”“The certification mark, as used by “The certification mark, as used by authorized persons, certifies that the tea contains at least one hundred percent (100%) tea originating in the Darjeeling region of India and that the blend meets other specifications established by the certifier.”

Registration of GI mark

Application Serial No. 76-229673For (a variety of products madewholly or substantially ofEgyptian cotton)“The certification mark, intended“The certification mark, intendedto be used by authorizedpersons, is intended to certifythat the products identified abovecontain 100% EgyptianBarbadense cotton.”

Who Can Register?

�Any association of persons or producers or any organization or authority established by or under law representing the under law representing the interest of producers of the concerned goods

GI Certificate

Plant Varieties

�The demand for extending intellectualproperty protection to agriculture indeveloping countries has met withcounterclaims for granting farmersrights. Developing countries arerights. Developing countries arecurrently attempting to fulfill thesedemands by evolving new IPR regimesthat simultaneously protect the rightsof breeders and farmers.

Plant Varieties

�The answers to these questions haveimportant implications for the future ofagricultural growth in developingcountries. India is one of the firstcountries. India is one of the firstcountries in the world to have passed alegislation granting rights to breedersand farmers under the Protection ofPlant Varieties and Farmers í RightsAct, 2001

Coverage of varieties

�New Varieties (genera and species which canbe registered will be notified subsequently)

� - Extant varieties

� - Farmers varieties

� - Breeders can exercise their rights over any� - Breeders can exercise their rights over anyvariety that is essentially derived from theprotected variety. Provided that theauthorisation by the breeder of the initial varietyto the breeder is on mutually agreed uponterms and conditions.

The Central Government has notified the following crops with their genera eligible for registration of

varieties.

S.No.

Botanical Name Hindi Name Common Name

1. Oryza sativa L. Chawal Rice

2. Triticum aestivum L. Gehun Bread wheat

3. Zea mays L. Makka Maize

4. Sorghum bicolor (L.) Moench Jowar Sorghum4. Sorghum bicolor (L.) Moench Jowar Sorghum

5. Pennisetum glaucum (L.) R. Br. Bajra Pearl millet

6. Cicer arietinum L. Chana Chickpea

7. Cajanus cajan (L.) Millsp. Arhar Pigeon pea

8. Vigna radiata (L). Wilczek Mung Green gram

9. Vigna mungo (L.) Hepper Urd Black gram

10. Lens culinaris Medik Masur Lentil

11. Pisum sativum L. Matar Field pea

Basmati Patent Battle Controversy

�In September 1997, a Texas companycalled Rice-Tec won a patent (U.S.Patent No. 5,663,484) on "basmati ricelines and grains." The patent secureslines and grains." The patent secureslines of basmati and basmati-like riceand ways of analyzing that rice. Rice-Tec, owned by Prince Hans-Adam ofLiechtenstein, faced internationaloutrage over allegations of bio-piracy.

It had also caused a brief diplomatic crisisbetween India and United States with Indiathreatening to take the matter to WTO as aviolation of TRIPS which could haveresulted in a major embarrassment for theUnited States.[6] Both voluntarily and dueto review decisions by the United Statesto review decisions by the United StatesPatent Office, Rice-Tec has lost most of theclaims of the patent, including, mostimportantly, the right to call their rice lines"basmati." This was a huge victory forIndian farmers, who could have facedenormous economic losses from the grantof patent.

SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUT

�The Semiconductor Integrated CircuitsLayout-Design Act, 2000 was passedto fulfill India’s obligations as a TRIPSsignatory. It provides protection forsemiconductor IC layout designs.semiconductor IC layout designs.Layout design includes a layout oftransistors and other circuitry elementsand includes lead wires connectingsuch elements and expressed in anymanner in a semiconductor IC.

�The Act defines a semiconductorintegrated circuit as, “a producthaving transistors and othercircuitry elements which are

SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUT

circuitry elements which areinseparably formed on asemiconductor material or aninsulating material or inside thesemiconductor material anddesigned to perform an electroniccircuitry function”.

�The obligation to protect layout-designs appliesto such layout-designs that are original in thesense that they are the result of their creators'own intellectual effort and are not commonplaceamong creators of layout-designs andmanufacturers of integrated circuits at the timeof their creation

SEMICONDUCTOR INTEGRATED CIRCUITS LAYOUT

of their creation

�The exclusive rights include the right ofreproduction and the right of importation, saleand other distribution for commercial purposes

The "Decimator" Chip Layout

THANK YOU FOR YOUR THANK YOU FOR YOUR ATTENTION !ATTENTION !

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