IP Laws PDF

IP LAWS There have been several conventions to help creators protect their intellectual property in other countries. Some are as follows: 1. Paris Convention of 1883 for Patents and Trademarks 2. Berne Convention of 1886 for Copyrights...

IP LAWS There have been several conventions to help creators protect their intellectual property in other countries. Some are as follows: 1. Paris Convention of 1883 for Patents and Trademarks 2. Berne Convention of 1886 for Copyrights 3. Rome Convention of 1961 for Performers Rights. India has signed a TRIPS agreement from 1995-2005. TRIPS stands for Trade-Related Aspects of Intellectual Property Rights. India discontinued Process patents and implemented Product patents. Intellectual Property is the creation of the human mind and intellect Idea or a concept or a thought at the beginning. Research and Development lead the idea or thought to practice. The outcome of these ideas may be the development of products, processes, works, marks and designs, etc. The organisational structure of IPs is as follows: 1. Govt. of India 2. Ministry of Commerce and Industry 3. Department for Promotion of Industry and Internal Trade (DPIIT) 4. Controller General of Patents, Designs and Trademark and Registrar of Copyright Several Acts to remember, these are: 1. Copyright Act of 1957 2. Patents Act of 1970 3. Trademarks Act of 1999 4. Geographical Indication Act of 1999 5. Design Act of 2000 Software is always Copyrighted whereas software with hardware can only be Patented. The 4-point test of a Patent is that it should not be a natural object or process, it should be new, useful to mankind and not obvious. The term of a patent is 20 years from the date of filing.  Types of patents are as follows: 1. Utility patent (Ballpoint pen with cover) 2. Design patent (Jewellery, Coca-Cola bottle and Statue of Liberty) 3. Plant patent ( Seedless Tomato, different varieties of Almonds) The purpose of a patent is to encourage Innovation and scientific research and help the creator cover its cost. Non-patentable inventions are as follows: 1. Anything frivolous 2. Mere discovery of scientific principle( Newton's law) 3. Any agriculture or Horticulture method 4. Anything of traditional knowledge 5. Any medicinal or surgical treatment of plants, animals or humans 6. Any mathematical business method or model( this can be copyrighted but not patented) 7. Anything injurious to public health or against public morality 8. Any method of solving A crossword puzzle or playing games 9. Any mere admixture Of known substance( combi-flam, sugar+ water) 10. Not for Atomic Energy 11. Literary, Dramatic and Musical work( as these get copyrighted) 12. Any software 13. A new use or property or known substance The rights and uses of patents are as follows: 1. Right to exploit the patent 2. Grant the licence 3. Surrender 4. Sue for infringement 5. Use and enjoy the patent The duties and obligations of patents are as follows: 1. Duty to disclose all sketches and documents 2. Duty to request for Examination 3. Duty to respond to the Obligation 4. Duty to clear all Objection 5. Duty to pay Statutory Fees 6 steps of Patent Research are as follows: 1. Patent Research 2. Patent Application Filing 3. Patent Publication for Objection and Opposition 4. Provisional and Complete Specification 5. Requesting for Patent Examination 6. Grant of Patent Copyrights provide exclusive rights to the creator of the work to print, publish and sell his work. These include creator, author, composer etc. The term of copyright is 60 years+ lifetime under the Copyright Act of 1957. The work should be original, tangible, a creation of the mind and within the categories of copyright to get the work copyrighted. Literary, Dramatic, Musical, artistic, Sound Recording and Cinematography Films are usually copyrighted (LDMACS). Copyright exists in the expression of ideas( physical form) and not mere ideas. when it is known to the public then only it is copyrighted. Ideas, Facts, recipes, Discovery, Systems and Principles, Methods, Names and Titles are things that cannot be copyrighted. Subjects that can be copyrighted: (LDMACS) 1. Literary works( novels, poems, plays, newspapers,Radio,TV, computer programs and databases) 2. Dramatic( plays, screenplays, dumb shows ) 3. Musical( songs, melodies with lyrics) 4. Artistic( paintings, drawings, maps and charts) 5. Cinematographic films ( Motion Pictures, documentaries and AV works) 6. Sound Recordings( audio recordings, background score, speeches, lectures) The composer is considered an author of musical works. Lyricist has a copyright under literary work. Singer also has a separate copyright( since 2012) for a lifetime and 50 years after the person dies (next year from when the author dies). This also includes Performers. A Contract of Service includes hiring and giving a salary whereas, hiring an agency for some work is considered a Contract for Service. Copyright owners have two types of rights, Economic rights and Moral rights. Economic rights protect authors' economic right to earn a profit by exploitation of work, whereas Moral rights protect the non-economic interest of creators of copyrighted works. These rights are inalienable which means they cannot be separated from the original creator/ author. Economic rights are of 6 types: 1. Reproduction rights: these include the right to reproduce/ copy the work in any form or medium, including printing, recording or digital copying. 2. Right to prepare derivative works-Prepare new works based on protected works(for  example Remix Songs) 3. Distribution Right - Govern how their works are distributed/sold public 4. Public Performance Right - Publicly perform their works including plays, music or dance. 5. Public Display Right - Display of work (Art, Exhibition, Billboard) by Copy-Right holder 6. Right to Perform Sound Recordings Publicly Moral rights include Paternity/ Attribution rights and Integrity rights.Paternity/Attribution Right is the right to be recognized as the author whenever the work is published, displayed or performed. In Integrity Rights work must not distorted or modified in a manner that violates the Integrity of the Author's Original work. Literary Dramatic, Musical and Artistic works have night till the lifetime of the author +60 years in, it starts from the next year in which the author dies. Cinematography films, sound recordings, government work, public undertakings and photographs have its copyrights until 60 years. It starts from the next following your in which the work is published. In government work government has ownership and authorship lies with the creator. Fair use is the ability to use Sources without Seeking permission from the copyright holder- Their categories are as follows: 1. For research or private study 2. For criticism of review. 3. For reporting current events, 4. In connection with judicial proceedings 5. Performance by an amateur club or society if the performance is given to a non-paying audience. Geographical Indication - Agricultural Goods, Handicrafts Manufactured goods, and Foodstuffs are covered in G.I. The benefits of G.I. are that it prevents unauthorized use, provides legal protection, promotes economic prosperity by helping to boost exports, helps to develop customer loyalty and lastly, consumers can pay a very high price. The term of G.I. is 10 years and can be renewed & till perpetuity. Any association of persons producers or organisations by law can apply for Geographical Indication. In Trademark, 1. TM- Stands for Unregistered Trademark 2. SM- Stands for Service Mark 3. R - Stands for Registered Trademark A good trademark should be easy to pronounce, and remember and is unique. Its Duration is 10yrs for it to be alive. which means it can be renewed every 10yrs and the protection is unlimited.  If you are a registered trademark holder your legal remedy is infringement. act and if not and if not for legal remedy is under passing off. The advantages and importance of a Trademark are as follows: 1. It's an effective communication tool 2. It makes it easy for customers to identify 3. Provides uniqueness 4. Protects brand 5. It averts legal issues in the future 6. Prevents unfair Competition The types of trademarks are as follows: 1. Word Mark-Coco Cola, Google 2. Service Mark- Amazon, Uber, Ola 3. Collective Mark/Family Mark- Reliance, Tata Sons 4. Certification Mark - ISI, ISO, FSSAI 5. Well Known Marks- Bata, Bisleri 6. Unconventional Mark - These can be further divided into: a. Color Mark - Cadbury, Vanish b. Sound Mark- Britannia, Yahoo c. Shape Mark - kit-kat, Toblerone In the following conditions, trademarks aren't received : 1. Generic Term 2. Scandalous / Obscene Immortal mooles 3. Deceptive terms. 4. Flags, Emblems, Famous Persons, Official Hallmarks. 5. The shape of goods is due to the good's nature 6. Descriptive terms. 7. Should not hurt any religious sentiments 8. Geographical Indications 9. Well-known Marks. Absolute and Relative are the grounds for Refusal of a trademark. Trademarks are classified into (NICE Classification) 45 categories. Goods Class is 1-34 and Service Class is 35-45. Bonafide means Good Intention and Malafide means Bad Intention The process of filling a trademark is as follows (chronological order)  Filling of Application ↓ Examination By Indian T.M. office ↓ Trade Mark Journal ↓ Waiting for objections for 4 months Rights of Registered T.M. Holder : 1. Right to Exclusive Use 2. Right to seek Statutory (Legal)Remedy 3. Right to Co-Own a Trackmark. 4. Right to Assign 5. Right to Seek Correction Of Trademark. 6. Right to Alter Registered Trademark. Reliefs / legal remedies in general for all intellectual properties: 1. Damages 2. Injunction( stay order) 3. Cost of Proceedings 4. Destruction of Goods 5. Account of Profits CASE STUDY TO KEEP IN MIND 1. Bayer Vs Union of India (Principal Established was Compulsory Licensing) 2. Novartis Vs Union of India (Principal Established was Evergreening of Patents) 3. Covishield Vs Remdesivir (Principal Established was Voluntary Licensing of Patents) 4. Malyala Manorama Vs VT Thomas 5. RG Anand vs M/s Delux films 6. Amarnath Segal vs Union Of India (Moral Rights) 7. Neha Basin Vs Anand Raj Anad (Moral Rights) 8. Tea Board India Vs I.T.C Limited (G.I.) 9. Delhi Lakme Vs Subash Trading (LAKME VS LIKEME)(Trademark) 10. DYCHEM LTD. VS Cadbury India Ltd (Piknik Vs Picnic) (Trademark) 11. Mahendra Paper Mills Vs Mahindra Vehicle (Trademark) 12. Gulvita vs Gulavita (Trademark)