WHAT IS INTELLECTUAL PROPERTY
An Intellectual Property Right is a monopoly granted for a certain period, over tangible objects of the person whose mental efforts created it. Intellectual Property rights are a group of rights which manifest on different group of ideas. In defining Intellectual Property, we first look at the subject matter, then the form by which it is protected, Intellectual property may include original ideas, research results, critical business information. Intellectual property emanates from human creative labour. It is different from ‘real property’. Real property is tangible, has defined boundaries but intellectual property does not. Intellectual Property rights first came up in the industrial revolution Intellectual Property Rights are commercially valuable Tied to an idea that can be shared, expressed or have an application out of it. There are different Types of Intellectual Property rights, for e.g., inventions are protected by patents, Literary works are protected by copyright.
Intellectual property is different from Intellectual Property Right. Meaning of ‘right’ in Intellectual property right:
“A legal entitlement which is recognized and can be protected and the violation of which is deemed as ‘unlawful’ and leaves the right-holder with a remedy.
there are certain elements that Together constitute the concept of Intellectual property right. The subject matter can be replicated, it can be repeated, the fact that the right grants, the right holder the option of enforcing it against others. One of the things in understanding or defining intellectual property right is to first understand the subject matter on which the intellectual property right will manifest itself on.
IPR AND ECONOMIC BENEFITS TO SOCIETY
- Intellectual Property Rights incentivise innovation
- Increased innovation hugely benefits society
- The developments of nations and fortunes of many industries depend on Intellectual Property Rights
- A free market with no Intellectual Property Rights will lead to a reduction in the production of intellectual works
- By rewarding the creators, overall innovation is thus increased
OVERVIEW OF IPR TYPES
Intellectual Property Rights (IPR) are legal protections for creations of the mind. They include patents, which protect new inventions and technical ideas, and trademarks, which secure brand names, symbols, or logos that make a business stand out. Copyrights safeguard creative works like books, music, and films, while design rights protect the unique appearance or shape of products. Trade secrets cover confidential business information such as secret recipes or formulas. Geographical indications connect products to specific regions, like “Kashmiri saffron.” Altogether, these rights motivate innovation, reward creativity, and prevent misuse of original work.
Examples:
| Patent | Tesla EV Tech |
| Trademark | Nike Swoosh |
| Copyright | Harry Potter Books |
| Design | Iphone Shape |
| Trade Secret | KFC Recipe |
| Geographical Indication | Darjeeling Tea |
PATENTS: PROTECTING INVENTIONS
WHAT IS A PATENT?
A Patent grants a monopoly right to use and license use of an invention for a certain period, usually 20 years. Patent right is a quid pro quo with the government. Quid is the knowledge disclosed to the public and quo is the monopoly granted for the term of the patent
Patents and The Society:
1. Patents, like other Intellectual Property Rights, give great impetus to research and development
2. The public interest debate is most crucial from the view point of Patent law, particularly in pharma patents
TYPES OF PATENTS
- Utility Patent – Granted for useful inventions.
Example: The technology behind the iPhone’s touch screen. - Design Patent – Granted for its unique design
Example: The distinctive shape of the Coca-Cola bottle. - Plant Patent – Granted for discovering or breeding a new type of plant.
Example: A new variety of rose or apple tree created through cross-breeding. - Provisional Patent – Granted for a temporary period of time for securing an idea
Example: An inventor files a provisional patent for a new type of electric scooter before completing the final design.
- Non-Provisional Patent – Granted after final examination
Example: The finalized patent for a new solar panel technology.
- Software Patent – Granted for new software algorithms or computer-implemented processes.
Example: Google’s PageRank algorithm used in its search engine. - Business Method Patent – Granted for doing financial transactions using unique technology.
Example: Amazon’s “one-click” online shopping system.
TRADEMARKS: PROTECTING BRANDS
DEFINITION AND IMPORTANCE
A trademark in simple terms is a mark. And when we say a mark, we refer to something that can be graphically symbolized or something which can be shown graphically, which is attributed to a trade or a business. Marks have existed since time immemorial and their usage in business has also been there for a long time now.
By trade, we refer to a business. to understand trademarks, we need to understand what businesses are. A business can be defined as an organization or an economic system where goods and services are exchanged for one another or for money. we understand it as an exchange of goods or services which are exchanged or which are dealt with for a value. And the value here is money or something that can be computed in terms of its value a trademark can be something that identifies a business name, the entity that does the business, a corporation or a organization.
It could also mean the product that is sold or the services that are offered. in a marketplace where there are multiple people offering the same good or the same service, there is a need to distinguish these services or goods. And the need to distinguish competitive services and competitive product led to the businesses who are offering these competitive products and services to distinguish their products and services by way of Marks.
For instance, a safety pin. There is not much uniqueness you can bring into a safety pin without actually changing its function or if, you make bring too much uniqueness, people may not even identify the product. So, you could have trade names which will bring this uniqueness. For instance, paperclips were also known as gem clips. Gem refers to a trade name and sometimes products are the generic name of the products may be attributed to certain trade names because of the common use.
Now, gem clips refer, referring to paperclips is one thing. Thermos again, a trade name referring to flasks is another instance.
Xerox referring to the product that comes out of the emissions that is a photostat or a photocopy, is again an instance of a trade name being commonly used in identifying the product. Velcro, again, a trade name and we understand the product by the trade name itself.
So trade names are used to distinguish and to identify competing products. A trademark refers to any word, name, symbol,or device, which are used to identify and distinguish goods and services.
TYPES OF TRADEMARKS
- Word Mark – Granted to brand name or words that identify a product or service.
Example: Nike, Google, or Coca-Cola. - Logo Mark (Device Mark) – Granted for visual symbol or design representing a brand.
Example: The Apple logo or McDonald’s golden arches. - Tagline or Slogan Mark – Granted for catchy phrases that represent the brand’s message.
Example: “Just Do It” (Nike) or “I’m Lovin’ It” (McDonald’s). - Shape Mark – Granted for distinct shape or packaging of a product.
Example: The unique Coca-Cola bottle shape. - Sound Mark – Granted for a specific tune, jingle, or sound associated with a brand.
Example: The Intel chime or Nokia ringtone.
COPYRIGHTS: PROTECTING CREATIVE WORKS
Copyrights give an exclusive right to control reproduction of works of authorship, which are literary, musical, artistic, dramatic works such as books, magazines, newspapers, music, films, plays, paintings, sculpture etc., for a certain period of time
Like other intellectual property rights, copyright protection is important to encourage exploitation of the copyright work for the benefit of others. If there is no such protection granted to original works of authors and creators, anyone would reproduce the work at a fraction of the original cost of production and sell it at a lower price, disrupting the business of the right holder
Copyright law does ensure that protection is granted to the works of writers, artists, musicians, film makers etc. so that they can benefit from the results of their hard work and creativity at the exclusion of others
SCOPE AND DURATION
COPYRIGHTS: TYPES OF COMPULSORY LICENSES:
- Works withheld from public without appropriate reason:
a. Granted under Section 31 of Copyright Act,1957
b. Work must have been published or performed in public and the author must have refused to republish or allow republication or allow the performance of the work in public
c. The author must have refused to allow communication of such work by broadcast or sound recording on reasonable terms
- Orphan Works:
a. Granted under Section 31A of the Copyright Act
b. Unpublished or published work where the author is dead or unknown or cannot be traced
c. An application has to be submitted to the Appellate Board seeking a licence
- Section 31B of the Act states that one may apply for a compulsory licence to publish any work in which copyright subsists for the benefit of persons with disability
- Section 32 of the Act states licence may be that a obtained from the Appellate Board to publish a translation of the work in any language
- Section 32A of the Act states that the licences related to the reproduction and sale of works that are not available in India
INDIAN COPYRIGHT ACT, 1957 Provides for statutory licence under Section 31C and 31D. Under the scheme of statutory licence, the royalty has already been pre-worked and pre-declared so that no petition is necessary to fix the royalty in each separate case. Consequently, neither is consent necessary nor is a petition
FAIR DEALING SECTION 52(1)(a) COPYRIGHT ACT, 1957
Fair dealing with any work includes:
- Private or personal use of the work, including research
- Criticism or review of that work or any other work
- The reporting of current events and current affairs
- Reporting a lecture delivered in public
ACTS NOT CONSIDERED INFRINGEMENT (SECTION 52):
- Any work for the purpose of judicial proceeding/reporting
- Work prepared by the Legislature or Secretariat of either House, exclusively for use by legislative members
- Work in a certified copy made or supplied in accordance with any law for the time being in force
- Reading or recitation in public of reasonable extracts from published literary or dramatic work
- Reproduction of work by teacher or pupil in the course of instruction/ as part of examination
- Activities of an educational institution (literary, dramatic or musical) by staff and students of the institution, or of a cinematograph film/ sound recording if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution
DURATION:
The term of a copyright varies depending on the work kind of work that is protected. Literary, musical, dramatic and artistic works are protected for the life of the author plus 60 years.
In case of posthumous work which is work published after the death of the author it will be 60 years from the work first published.
INDUSTRIAL DESIGNS: PROTECTING PRODUCT APPEARANCE
DEFINITION
A design refers to only the features of shape, configuration pattern or ornamentation or composition of lines or colours on a product. It is applied to a finished article, which is capable of being made and sold separately by an industrial process.
it should have a visual appeal, meaning, which it should be judged solely by the eye. A design right is granted to a non-functional aspect of the product. If it is a functional aspect of the product, then it should be protected by a patent provided it satisfies the requirements in patent law.
the difference between a patent and a design is that the patent, if it manifests in a product, the patent protects the technical parts or the technical aspects or the functional aspects, whereas the design is for the non-functional aspects of a product. Design as something which makes a product aesthetically appealing. What is visually appealing or aesthetically appealing and the aesthetic appeal doesn’t go beyond the appearance. If something is pertained to the way in which a product works, then that cannot be protected by a design. When granted, A design which is has a visual appeal, has a 10-year term, and the 10-year term can be renewed to a further five-year term. there can be a total protection of 15 years. And after which the design falls into the public domain,
The Designs Act sets the limit for compensation per design infringement. At 50,000 Rupees, a design can be challenged after its registration. There is no pre-grant challenge when it comes to designs, unlike patterns.
EXAMPLES
Designs that are contrary to public order or morality will not be granted. Articles not capable of being made or sold separately. What we referred as the design itself. For instance, grading cards and postcards cannot be a subject matter of a design, Copyrighted works cannot be a subject matter of design, because there is a separate regime to protect that, and cartoons are protected by copyrights, flags, emblems, and national symbols cannot be a subject matter of design.
GEOGRAPHICAL INDICATIONS: LINKING PRODUCTS TO LOCATION
DEFINITION AND IMPORTANCE
A geographical indication or Gl is assigned used on products that have a specific geographical origin and process qualities or a reputation that is due to that origin. when goods come from a particular place and the quality of the good is attributed to that particular piece, be it by way of its geography or by way of the people who are in that place, then that product can be regarded as a subject matter of a geographical indication. And they can be a separate right that can be registered and this right is called the geographical indication or GI, for instance. Rockford cheese, doling tea, banana ARI, are different examples of a GI. A GI is not limited to agricultural products, it extends to other products like wine, spirits, handcrafts, et cetera.
It allows people to identify the quality of a product. The market recognizes the product as originating from a particular place and people may be willing to pay a premium price for the product. Hence, it’s a source for niche marketing and it also leads to rural development because craftsmen in rural areas who are protected by a Gl Will be able to sell their products.
Once registered, the Gl enjoys a 10-year protection and which can be renewed from time to time like trademarks.
EXAMPLES
- Darjeeling Tea (Agricultural, WB)
- Aranmula Kannadi (Handicraft, Kerala)
- Mysore Agarbathi (Manufactured, Karnataka)
- Coimbatore Wet Grinder (Manufactured, TN)
- Muga silk of Assam (Handicraft, Assam)
- Orissa Pattachitra (Textile, Odisha)
- Nirmal Toys and Crafts
- Banglar Rasogolla (Foodstuff, WB)
IMPORTANCE OF UNDERSTANDING IPR
we have seen how intellectual property rights can be developed, how they can be protected sometimes by way of registration and how they can be enforced before a court of law. Intellectual property rights make sense for businesses because it gives them a strategic advantage in the market.
Today’s complexity of business requires any business, be it small or big, to factor in various considerations in the course of running their business, there are issues with regard to innovation, especially that arise out of technology and knowledge centric businesses, which have to be kept alive.
Not only is innovation important for businesses to survive, but they also need to constantly improve upon what they’ve already done to remain relevant in the market the mission is to stimulate a dynamic, vibrant and a balanced intellectual property right system in India the first level to create IPR awareness, and that is one of the biggest tasks in a country of our size. And once we create awareness, we’ll be able to let people identify their IPRS and only if IPRs are identified can they be protected and monetized. So the logic is to first concentrate on awareness, Then on capacity building.
About Author
Ankita Jain is an Advocate, Legal Researcher, and Content Writer with a keen interest in Intellectual Property Laws, Constitutional Law, and Women and Child Safety Laws. Passionate about legal writing and research, she strives to simplify complex legal concepts and promote awareness of rights and justice. Her work reflects a commitment to advancing legal literacy and contributing meaningfully to the field of law.