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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 PATENTS INDUSTRIAL DESIGNS GEOGRAPHICAL INDICATIONS 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 used in relation to goods for the purpose of indicating a connection in the course of trade between the goods and some person having the right to 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 Coca Cola Intel Crocin Bournvita MGM - roar of Lion Taj Hotels Nike 501 Bar for for for vehicles beverages computer pharma food stuff entertainment hotels shoes 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 CUSTO 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 Amrutanjan Godrej Double Rustom Rysta Vanildene Amrutmanthan Goldage Bubble Ruston Aristo
Service Marks Which Are Capable Of Distinguishing Services New Provision - 1999 TMA Insurance Banking Hotels Laundry Education Transport Research Laboratories
COPYRIGHT MEANING OF COPYRIGHT : Right To reproduce the work ( incl. Storing ) issue copies of the work perform work in public communicate the work to the public make translation make adaptation sell or give on hire
COPYRIGHT Copyright subsists in original literary, dramatic, musical & artistic works cinematographic films sound recordings which are either first published in India, . .
COPYRIGHTS Range Of Copyright Protection Product Packaging Paintings Drawings ( maps, . . ) Photographs Computer Software Computer databases Scenic Arrangement Sculpture Engravings Architectural Works Research Papers Choreographic work
COPYRIGHTS 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
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 process which 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 goods as originating from/manufactured in a particular territory where a given quality, reputation or other characteristics of the goods is essentially attributable to that region
Objective : Customers must not be misled Marking must not mislead No Dilution Economic prosperity Darjeeling Tea Basmati Rice Paithani Saris Kolhapuri Chappals Scotch Whisky Rockford Cheese Champagne
Features Of A G I Statute : No individual ownership Ownership by association of persons Registration Validity : 10 years No assignment , licensing or mortgage Unauthorised 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 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