Business Law Assignment

INTELLECTUAL PROPERTY RIGHTS

Submitted to:

Submitted by:

Prof. Anushka Mankad

Payal Yoganandi
11490
Sem III

Introduction
Intellectual property Right (IPR) is a term used for various legal entitlements
which attach to certain types of information, ideas, or other intangibles in their
expressed form. The holder of this legal entitlement is generally entitled to exercise
various exclusive rights in relation to the subject matter of the Intellectual
Property.
India is a signatory of TRIPs in the Uruguay Round agreement of 1995.It is now
bound to amend her existing laws in order to make it to make it TRIPs-compliant.
The government has initiated action to bring in the requisite changes. In the last
few years, India has enacted fully TRIPs-compliant Trademarks Act, Copyright
Act, Designs Registration Act, Geographical Indications Act and Protection of
Layouts for Integrated Act. A novel Plant Varieties Protection and Farmers Rights
Act 2001 and the Bio-diversity Act 2002 are also in Place.
Intellectual property rights (IPR) can be defined as the rights given to people over
the creation of their minds. They usually give the creator an exclusive right over
the use of his/her creations for a certain period of time.
Intellectual property (IP) refers to creations of the mind: inventions, literary and
artistic works, and symbols, names, images, and designs used in commerce.
Intellectual property shall include the right relating to:
i.
ii.
iii.
iv.
v.
vi.
vii.

Literary, artistic and scientific works;

Performance of performing artists;
Inventions in all fields of human endeavor;
Scientific discoveries;
Industrial designs;
Trademarks, service marks and etc;
Protection against unfair competition.

1. PATENTS
Patent is a grant for an invention by the Government to the inventor in exchange
for full disclosure of the invention. A patent is an exclusive right granted by law to
applicants / assignees to make use of and exploit their inventions for a limited
period of time (generally 20 years from filing). The patent holder has the legal right
to exclude others from commercially exploiting his invention for the duration of
this period.
Sec.2 (1) (J) - Invention means a new
product or process involving an
inventive step and capable of industrial
application.
Any
invention
concerning
with
composition,
construction
or
manufacture of a substance, of an article
or of an apparatus or an industrial type
of process.
The Patent System in India is governed
by the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 and
the Patents Rules, 2003, as amended by the Patents (Amendment) Rules 2006
effective from 05-05-2006.
Types of Patent Applications
1) Ordinary Application
2) Application for Patent of Addition (granted for Improvement or Modification of
the already patented invention, for an unexpired term of the main patent).
3) Divisional Application (in case of plurality of inventions disclosed in the main
application).
4) Convention application, claiming priority date on the basis of filing in
Convention Countries.
5) National Phase Application under PCT.

Process of registration of patent

1. Obtaining A Patent
File an application for patent With one of the patent offices based
on territorial jurisdiction of the place of office or residence of the
applicant /agent
Pay the required fee
Information concerning application form and details of fee available
at www.ipindia.nic.in
Guidelines for applicants also available on this website
2. Formality Check
An Examiner checks the formal requirements before accepting the
application and the fee this is done immediately
Issue of application number and the cash receipt this is done the
same day
In case of receipt of application by post, cash receipt, application
number is sent by post within 2- 3 days
3. Publication
Application is kept secret for a period of 18 months from the date of
filing
In 19th month, the application is published in the official journal
this journal is made available on the website weekly
Applicant has an option to get his application published before 18
months also
In that case, application is published within one month of the request
4. Request for Examination

 Application is examined on request

Request for examination can be made either by the applicant or by a
third party
A period of 48 months, from the date of filing, is available for making
request for examination
5. Examination
Application is sent to an Examiner within 1 month from the date of
request for examination
Examiner undertakes examination wart. whether the claimed
invention is not prohibited for grant of patent whether the invention
meets the criteria of patentability
Remedies in case of infringement of patent
Suit for Infringement
When any person infringes the rights of the patentee, a suit for infringement of
patent should be instituted in the District Court having jurisdiction to try the suit. A
suit for infringement can be instituted only if the patent has been sealed. The
patentee cannot institute a suit for infringement during the period between date of
advertisement of acceptance of the complete specification and the date of sealing
of patent.
Acts not Constituting Infringement
Where the patented invention is merely used for the purpose of experiment or
research or for imparting instruction to pupils, it does not amount to infringement
of patents. Similarly, any act of making, using or selling a patented invention
solely for development of information required under any relevant law does not
amount to infringement.
Limitation Period for Institution of Infringement Suit

The period of limitation for instituting a suit for infringement is 3 years from the
date of infringement. However, it is not necessary to send a notice of infringement
to the defendant before filing the suit for infringement.
Relief in Suit for Infringement
The patentee, on being successful in a suit for infringement is entitled to an
injunction (or restraining), damages or accounts, and otherwise.Injunctionis a
normal remedy, though discretionary on the part of the Court. It stops the
infringement during the pendency of the proceedings. Damagesaccount for the
loss in money terms suffered by the owner of the patent due to infringement.

2. TRADEMARK
A trade mark (popularly known as brand name) in laymans language is a
visual symbol which may be a word signature, name, device, label, numerals
or combination of colors used by one undertaking on goods or services or
other articles of commerce to distinguish it from other similar goods or
services originating from a different undertaking.
The selected mark should be capable of being represented graphically (that
is in the paper form).It should be capable of distinguishing the goods or
services of one undertaking from those of others
It should be used or proposed to
be used mark in relation to goods
or services for the purpose of
indicating or so as to indicate a
connection in the course of trade
between the goods or services and
some person have the right to use
the mark with or without identity
of that person.
The Trade Marks Act, 1999 and
the Trade Marks Rules, 2002
govern the law relating to Trade
Marks in India. The Trade Marks Act, 1999 (TMA) protects the trademarks
and their infringement can be challenged by a passing off or/and
infringement action. The Act protects a trade mark for goods or services, on
the basis of either use or registration or on basis of both elements.
Who can apply for Trademark?
Any person claiming to be the proprietor of a trade mark used or proposed
to be used by him may apply in writing in Form TM-1 for registration.

Process of registration of Trademark

Trademark filing is a very easy process and can be completed in 24 hours from any
remote corner of India and can use TM next to your brand name
1) Visit www.bmcgroup.in/get-proposal
2) Fill the form for a quote & Get a detailed quote in half a minute
3) Speak with our IPR Consultant
4) We will conduct a detailed search in Trademark database for availability
of name
5) Filing of Trademark with Indian Trademark Registry & TM
6) Your BRAND is protected
Remedies in case of infringement of Trademark
CRIMINAL ENFORCEMENT
Cognizable Offence: Criminal complaint directly with the police for arrest &
seizure;
Criminal complaint before the district court for seizure.
Non-cognizable offence: Criminal complaint before the District Court for search
and seizure warrant against infringing parties; Criminal complaint before the
District Court for search and seizure warrant against unknown persons
PASSING-OFF
In respect of unregistered trademark, action for passing off can be initiated.
A registered Trademark has the backing of infringement and passing off remedies
under the Trade Marks Act.
The Act does not provide for infringement action in respect of unregistered
Trademarks.

 Only passing off remedy is available in case of unregistered Trademarks. (Section

27 of TMA Act, 1999).

3. COPYRIGHT
Copyright is the set of exclusive rights granted to the author or creator of an
original work, including the right to copy, distribute and adapt the work. Copyright
lasts for a certain time period after which the work is said to enter the public
domain.
The Copyright Act of 1957, The Copyright Rules, 1958 and the International
Copyright Order, 1999 governs the copyright protection in India. It came into
effect from January 1958. The Act has been amended in 1983, 1984, 1992, 1994
and 1999. Before the Act of 1957, copyright protection was governed by the
Copyright Act of 1914 which was the
extension of British Copyright Act, 1911.
According to Section 14 of the Act,
copyright means the exclusive right
subject to the
Provisions of this Act, to do or authorize
the doing of any of the following acts in
respect of a
Work or any substantial part thereof,
namely:In the case of literary, dramatic or musical
work:
to reproduce the work in any material form, this includes storing it by
electronic Means;
to perform the work in public or communicate it to the public;
to make any cinematograph film or sound recording in respect of that work;
to make any translation or adaptation of the work or to do any of the above
acts in respect to any translation or adaptation of the work.
In the case of computer programmes:
any of the acts specified above;

 to sell or commercially rent any copy of the computer programme.

In the case of artistic work:
to reproduce the work in any material form, including depiction in 3-D of a
2-D
work or in 2-D of a 3-D work;
to communicate the work to the public;
to include the work in any cinematograph film;
to make an adaptation of the work and/or to do any of the work mentioned
above in respect of the adaptation.
In the case of cinematograph film:
to make a copy of the film, including a photograph of any images forming
part of the film;
to sell or hire any copy of the film;
to communicate the film to the public.
In the case of sound recording:
to make any sound recording embodying it;
to sell or give on hire or offer for sale any copy of the sound recording;
to communicate the sound recording to the public.
Process of registration of Copyright
Acquisition of copyright is automatic and it does not require any formality.
However, certificate of registration of copyright and the entries made therein serve
as prima facie evidence in a court of law with reference to dispute relating to
ownership of copyright.
Copyright comes into existence as soon as a work is created and no formality is
required to be completed for acquiring copyright. However, facilities exist for
having the work registered in the Register of Copyrights maintained in the
Copyright Office of the Department of Education.

The entries made in the Register of Copyrights serve as prima-facie evidence in the
court of law. The Copyright Office has been set up to provide registration facilities
to all types of works and is headed by a Registrar of Copyrights
Remedies in case of infringement of Copyright
Injunction is a normal remedy, though discretionary on the part of the court. It
stops the infringement during the pendency of the proceedings and ensures that no
further loss/damage is caused to the owner of the copyright during the period when
the injunction is in force.
Damages account for the loss in money terms suffered by the owner of the
copyright due to infringement.
Accounts relates to the accounts of net profits earned by the defendant (infringer).
If there are no profits, accounts is not ordered as a remedy. Damages and accounts
are alternative remedies; the owner can choose only one of them, not both.
Otherwise, as a remedy, is a general provision authorizing the court to grant such
other reliefs as the court may deem necessary for complete redressal of the
complaint, e.g., destruction of the infringing material.