What is meant by ‘Intellectual Property’?
Intellectual Property refers to creation of mind such as inventions, designs for industrial articles, literary, artistic work, symbols which are ultimately used in commerce. Intellectual Property rights allow the creators or owners to have the benefits from their works when these are exploited commercially. These rights are statutory rights governed in accordance with the provisions of corresponding legislations. Intellectual Property rights reward creativity & human endeavor which fuel the progress of humankind.
- What is a Trade mark?
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 colours 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.
- How to select a Trade mark?
- The sign should be easy to read, spell, pronounce and remember in all relevant languages.
- It should have no adverse meaning in slang or undesirable connotations.
- It should be suitable for export markets with no adverse meaning in foreign languages, especially if you intend to commercialize the product abroad.
- It should not create confusion as to the nature of the product.
- It should be adaptable to all advertising media.
- What is the function of the Trade mark?
It identifies the goods / or services and its origin.
It guarantees its unchanged quality
It advertises the goods/services
It creates an image for the goods/ services.
- Can unregistered proprietor institute Trademark infringement proceeding?
No. The proprietor of an unregistered trademark shall not be entitled to institute any proceeding to prevent, or to recover damages for, the infringement. It is possible to file a suit against ‘passing off’ under common law if the previous usage can be established by the plaintiff.
- Who can apply for a trade mark and how ?
Any person claiming to be the proprietor of a trade mark used or proposed to be used by him may apply in writing in prescribed manner for registration. The application should contain the trade mark, the goods/services, name and address of applicant and agent (if any) with power of attorney , period of use of the mark and signature. The application should be in English or Hindi. It should be filed at the appropriate office.
- What is the duration of Trade mark in India?
The duration of trademark registration is ten years that may be renewed for a further period of ten years on payment of prescribed renewal fees. The non-user of a registered trademark for a continuous period of the five years is a ground for cancellation of registration of such trademark at the behest of any aggrieved party.
- Can I register a Trade mark before starting a business?
Yes, you can register a trademark before your business start up as propose to use mark.
- What is the first step for applying a trademark in India?
First, you need to conduct trademark search in trademark registry, India, particularly in class(es) related your product/services. According to Nice Classification [an international classification of goods and services applied for the registration of trademarks and service marks], there are 45 classes for goods and services which can be registered under Trademark Act. Class 1 – 35 relates to products/goods and Class 35 – 45 relates to services.
- What is Copyright?
The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright protection for ideas, procedures, and methods of operation or mathematical concepts as such.
- Does Copyright apply to titles and names?
Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or concepts. To get the protection of copyright a work must be original.
- Is it necessary to register a work to claim copyright?
No. Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. 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.
- Is there Copyright in Ideas?
No. There is no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated. For instance, a person may have a brilliant idea for a story or for a picture but if he communicates that idea to an artistic or play writer then the production which is the result of the communication of the form and the owner of the idea has no rights in that product.
- Whether Computer Software or Software programs can be registered under Copyright?
Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
- Can Copyright be transferred by assignment?
Yes. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. Copyright is a kind of personal movable property. It can be transferred by assignment, testamentary disposition or by operation of law.
- What is Patent?
A patent in an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusivity of right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available only for a limited period of time. However, the use or exploitation of a patent may be affected by other laws of the country which has awarded the patent.
- What is expected from patentee as an obligation to the state?
A patentee must disclose the invention in a patent document for anyone to practice it after the expiry of the patent or practice it with the consent of the patent holder during the life of the patent.
- What are the requirements for Patentability of Invention?
- Novelty :- An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals, books, newspapers etc. constitute the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty. Novelty is assessed in a global context. An invention will cease to be novel if it has been disclosed in the public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Prior use of the invention in the country of interest before the filing date can also destroy the novelty. Novelty is determined through extensive literature and patent searches. It should be realized that patent search is essential and critical for ascertaining novelty as most of the information reported in patent documents does not get published any where else.
- Inventive Step :- Inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
- Industrial Applicability :- An invention must possess utility for the grant of patent No valid patent can be granted for an invention devoid of utility.
- What is the term of patent in India? When does the renewal fee become payable?
A patent is valid for 20 years from the date of filing of the application. In case of International applications filed under Patent Cooperation Treaty designating India, the term of the patent is 20 years from the international filing date.
- Can a published or disclosed invention be patented?
No, publication of an invention in any form by the inventor before filing of a patent application would disqualify the invention to be patentable. Hence, inventors should not disclose their inventions before filing the patent application. The invention should be considered for publication after a patent application has been filed. Thus, it can be seen that t11ere is no contradiction between publishing an inventive work and filing of patent application in respect of the invention.
- What is considered as the date of patent?
The date of patent is the date of filing the application for patent (whether provisional or complete). The term of the patent is counted from this date.
- In case of two or more persons work together to make an invention, to whom will the patent is granted?
If each had a share in the ideas forming the invention as defined in the claims – even if only as to one claim, they are joint inventors and a patent will be issued to them jointly on the basis of a proper patent application.
- What are the essential patent documents to be generated and submitted by a potential patentee?
There are two types of patent documents usually known as patent specification, namely
(ii) Complete Specification
- Title of the invention.
- Field to which the invention belongs .
- Background of the invention including prior art giving drawbacks of the known inventions & practices.
- Complete description of the invention along with experimental results.
- Drawings etc. essential for understanding the invention.
- Claims, which are statements, related to the invention on which legal proprietorship is being sought. Therefore the claims have to be drafted very carefully.
- Is a patent granted in one country enforceable in other countries?
No. There is nothing like a global patent or a world patent. Patent rights are essentially territorial in nature and are protected only in a country (or countries) which,has (have) granted these rights. In other words,-for obtaining patent rights in different countries one has to submit patent applications in all the countries of interest for grant of patents. This would entail payment of official fees and associated expenses, like the attorney fees, essential for obtaining patent rights in each country. However, there are some regional systems where by filing one application one could simultaneously obtain patents in the member countries of a regional system; European Patent Office is an example of a similar system.
- What is Industrial Design?
An industrial design is the ornamental or aesthetic aspect of a useful article. This aspect may depend on the shape, pattern or color of the article. The design must have visual appeal and perform its intended function efficiently. Moreover, it must be able to be reproduced by industrial means; this is the essential purpose of the design, and is why the design is called industrial.
- Do all designs qualify for registration under the Designs Act, 2000?
The Registration of following design is prohibited under law
A design, which is not novel or original
The design, which is anticipated by prior publication or prior public use
A design which is not significantly distinguishable from known designs or combination of known designs
Comprises scandalous or obscene matter.
- Can stamps. Labels, tokens, cards, be considered an article for the purpose of registration of Design?
No. Because once the alleged Design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred ceases to exist. Article must have its existence independent of the Designs applied to it. So, the Design as applied to an article should be integral with the article itself.
- What is the duration of the registration of a design? Can it be extended?
The duration of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date.
- What is Geographical Indication?
Geographical Indications (GIs) identify the specific geographical origin of a product, and the associated qualities, reputation or other characteristics. They usually consist of the name of the place of origin. For example, food products sometimes have qualities that derive from their place of production and local environmental factors.The geographical indication prevents unauthorized parties from using a protected GI for products not from that region or from misleading the public as to the true origin of the product.
- Who can apply for the registration of a geographical indication?
Any association of persons, producers, organization or authority established by or under the law can apply:
The applicant must represent the interest of the producers
The application should be in writing in the prescribed form
The application should be addressed to the Registrar of Geographical Indications along with prescribed fee.
- Can an individual register a Geographical Indication?
A geographical indication is a community or a group right. Therefore, it is not possible to get Geographical Indication registration in the name of an individual.