Intellectual Property Rights
Intellectual Property Rights
Intellectual property is a legal term for the creations of mind and intellectual property rights are the rights provided by law for the exclusive use of creations of the mind. Examples of intellectual property include music, literature, and other artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Examples of intellectual property rights include trademark, copyright and patent. In this article, we look at intellectual property rights available in India.
Intellectual Property Rights Registration
In India, the intellectual property rights pertaining to trademarks and patents are controlled by the Controller General of Patents Designs and Trademarks, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry. Copyrights are handled by the Copyright Office, Copyright Societies, Government of India. Based on the type of intellectual property right to be registered, application must be made to the concerned authorities in the prescribed form.
Trademark is the most common type of intellectual property right with more than 2 lakh trademark registration applications filed in India during the year 2013-14. Trademark registration and trademark protection in India are governed by the Trademark Act, 1999. A trademark is used by an entity on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different entity. Names, logo, slogans, word signature, label, device (product shape), numerals or even a combination of colors can be trademarked in India. However, the most popular form of trademark registration is that of a trademark registration for a business name or logo. Once the trademark registration application is filed with the Registrar of Trademarks, the TM symbol can be used next to the logo. Once, the trademark is registered, the R symbol is placed next to the logo for indicating that the mark is a registered.
For a mark to be trademarked, it must be:
- Capable of being represented graphically (that is in the paper form).
- Capable of distinguishing the goods or services of one entity from those of others.
- Capable of being used or proposed to be used as a mark in relation to goods or services to indicate a connection between the goods or services and an entity that has the right to use the mark.
Copyright registrations are handled by the Copyright Office acting under the Indian Copyright Act, 1957. Copyright is a legal right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. Unlike trademark and patent, copyright protects the expression and not the idea or creation of mind. Further, copyright registration cannot be obtained for titles or names, short word combinations, slogans, short phrases – as the same can only be trademarked. One of the most popular type of copyright registration in India is copyright registration of website or software. Websites and software’s can be copyrighted as they are both considered to be “literary works” under the Indian Copyright Act, 1957. To copyright a website, many separate applications for copyright registration may have to be filed, as a website could contain many different literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films, broadcastings and computer software. For copyright registration of a software, the “Source Code” of the software must be submitted to the Copyright Office along with the application for registration of copyright for software products.
Patent registration in India can be obtained for any invention relating to a product or process that is new, involving inventive step and capable of industrial application. The following items cannot be patented, as they are not considered as inventions under the Patent Act, 1970:
An invention which is frivolous or which claims anything obviously contrary to well established natural laws.
- An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment.
- The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature.
- The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
- Any substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.
- The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
- Any method of agriculture or horticulture.
- Any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
- Plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.
- A mathematical or business method or a computer programme per se or algorithms.
- A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.
- A mere scheme or rule or method of performing mental act or method of playing game.
- A presentation of information.
- Topography of integrated circuits.
An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
Application for patent registration must be made to the Indian Patent Office in the prescribed format. A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. It is important to remember that the application for patent should be filed before the publication of the invention and till then it should not be disclosed or published. Disclosure of invention by publication before filing of the patent application may be detrimental to novelty of the invention as it may no longer be considered novel due to such publication. However, under certain conditions, there is grace period of 12 months for filing application even after publication.