TRADE MARKS IN WORLD TRADE

The system of registration succeeded in most countries due to the pressure of the traders. Because it was difficult to negotiate bilateral arrangements with other countries, when their nationals could not be offered the protection of a registered right. The first step in the world scenario came up with the Paris Convention on the Industrial property of 1883.The Paris Convention at no stage provided any form of international application for registration in a number of countries. But as early as 1891, some Paris participants were prepared to take this step in the subsidiary Madrid Agreement. This allows an applicant who has registered a mark in his home or business country to deposit an international registration with an international office (now WIPO). The mark will then be registered in each other Member State designated by the applicant, unless that state raises an objection, under its national law, within 12 months.

For countries such as the United Kingdom, which have a full examination of applications, the Madrid Agreement in its original form has remained unattractive. It gives advantages to those with easier access to their home registers and as a consequence its fee structure has been unacceptable. In 1989, however, a Protocol to Madrid was negotiated which offered an alternative method of using the Madrid scheme. This Protocol attracted British approval and is being given effect under the 1994 Act.

Another such agreement was the TRIPS Agreement. It imposes an obligation on its participant states to apply the Paris Convention standards relating to the trademarks. It also cross-refers to those provisions at a number of points, supplements some of them in significant respects and imposes its own obligations in addition.

Authored by Anisha Pal

Posted By Aurobinda Panda

For Biswajit Sarkar

Patent in USA

This post is a case comment on the much-awaited decision Mayo v Prometheus. Main question posed before the Supreme Court was "Whether the claims of Prometheus preempt patent law?" The Court, in my view delivered a promising judgment disallowing the patenting of natural laws. Personal life science invention is a growing market in US. It is likely that following days will show the positive or negative repercussions of the decision. However, a lime light for Justice Breyer, who had been a minority in similar cases, found his war against monopolizing freethinking.

The United States Supreme Court on 20 March decided unanimously that patent of Prometheus claiming methods to administer thiopurine drugs to treat autoimmune diseases is void.

Prometheus was the sole licensor of thiopurine drug “When in­gested, the body metabolizes the drugs, producing metabolites in the bloodstream. Because patients metabolize these drugs differently, doctors have found it difficult to determine whether a particular pa­tient’s dose is too high, risking harmful side effects, or too low, and so likely ineffective. The patent claims here set forth processes embody­ing researchers’ findings that identify correlations between metabo­lite levels and likely harm or ineffectiveness with precision. Each claim recites (1) an “administering” step—instructing a doctor to ad­minister the drug to his patient—(2) a “determining” step—tellingthe doctor to measure the resulting metabolite levels in the patient’s blood—and (3) a “wherein” step—describing the metabolite concen­trations above which there is a likelihood of harmful side-effects and below which it is likely that the drug dosage is ineffective, and in­forming the doctor that metabolite concentrations above or below these thresholds “indicate a need” to decrease or increase (respective­ly) the drug dosage.”

Petitioners Mayo introduced their own method, which according to Prometheus violated their patent claims. The district court held that patent claims constituted principles of natural law, which preempts the patent law. Federal Circuit Court overturned the decision based on Machine or transformation test held in Bilski v Kappos. Now the Supreme Court of the United States has affirmed the decision of district court and held that patent claims are void.

The Court held that, “The “wherein” clauses simply tell a doctor about the relevant natural laws, adding, at most, a suggestion that they should consider the test results when making their treatment decisions. The “determining “step tells a doctor to measure patients’ metabolite levels, through whatever process the doctor wishes to use. Because methods for making such determinations were well known in the art, this step simply tells doctors to engage in well-understood, routine, conven­tional activity previously engaged in by scientists in the field. Such activity is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law.”

Section 101 of US Patent Act has an explicit exemption that “Laws of nature are not patentable.” The same idea was followed in various celebrated precedence like  Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948), Dia­mond v. Diehr, 450 U. S. 175, 185 (1981); Bilski v. Kappos, 561 U. S (2010); Diamond v. Chakrabarty, 447 U. S. 303, 309 (1980); Le Roy v. Tat­ham, 14 How. 156, 175 (1853); O’Reilly v. Morse, 15 How. 62, 112–120 (1854). 

The Court in Chakrabarty held that patentable subject matter includes anything under the sun that is made by man. “Made by man” is an important criterion for patentability because the cardinal patent eligibility criterion for a “principle of natural law” is that it must undergone substantial human intervention. The decision in Diehr is in direct relation to the facts of the case. In Diehr the claimed invention was a known mathematical formula, the Arrhenius equation, applied to identify the time to open a rubber press. The invention worked on the information about the temperature inside the mold, the time in which the rubber was inside the mold and thickness of the rubber. However, the court identified that invention as a whole had undergone substantial human intervention and hence patent eligible. To quote “installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly re- calculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time” (at p.187 of Diehr).

In the present case, court identified that the claims only reinstating a process of natural law and there is no substantial human intervention to make the invention patentable.

By Aurobinda Panda

For Biswajit Sarkar

Bollywood copying Hollywood: Protection of Intellectual Property in Film Industry

The phenomenon of remaking and borrowing ideas is not new to the film makers around the world. It has been present in the film making process since the birth of cinema. Earlier the audience reach of film industries was restricted to certain geographical areas. As Hollywood[i] was restricted to English speaking countries, likewise Bollywood[ii] was restricted to India and its neighboring countries. But globalization and the record breaking developments in Information Technology and the worldwide reach of internet has taken the films beyond nations.

At present, copyright infringement of the protected film scripts has become the main conflict between the two largest film industries of the world Hollywood & Bollywood. Hindi films have often been accused of copying entire frames from their Hollywood predecessors; leading legal scholars recognize this practice as copyright infringement. Until the summer of 2008, no lawsuit was ever filed by a US studio against an Indian film for violation of the studio’s intellectual property rights. The reason was Bollywood’s lack of profitability, India’s status as a third world country and traditionally distinct audiences, which never allowed Bollywood movies to get surfaced on Hollywood’s radar. But recent boom in Indian economy, increase in the profitability of Bollywood and overlapping audiences reversed the views of Hollywood studios towards Bollywood movies.

A long list of Bollywood movies is present where they have been accused of being copied from some Hollywood blockbuster. In 2007, Sony Entertainment, holding the copyright of Hitch (2005), threatened a lawsuit against Partner (2007), a Bollywood film, for infringing content.

In August 2008, Warner Bros. filed suit against the producers of a Bollywood film Hari Putter: A Comedy of Terrors, claiming that the title was too similar to the Harry Potter brand. The Delhi High Court ruled in favour of the defendants largely on Warner Bros. delay in filing the suit[iii].

In 2010, for the first time, a successful suit was filed by Twentieth Century against Sohail Maklai Entertainment for the unlawful remake of Twentieth Century’s 2002 thriller Phone Booth, into Knock Out. It was for the first time when an Indian court ruled that Bollywood infringed a Hollywood copyright. The Bombay High Court awarded Twentieth Century injunctive relief until Sohail Maklai Entertainment paid $340,000 in damages[iv].

On being accused of copyright infringement by Hollywood studios, Indian filmmakers argue that when they adopt a Hollywood film for remake for the Indian audience they make the film undergo a transitory process of “Indianisation” by adding songs, dance and other Indian stuffs which in all together results in an inherently distinct product from the original. 

Legal framework available

India’s copyright law, as laid down in the Indian Copyright Act, 1957 later amended by Copyright (Amendment) Act, 1999, is compatible to the Berne Convention on Copyrights, to which India is a party. Copyright consists of the following rights:

1. Economic Rights – Right of reproduction, public performance, adaptation, broadcasting, translation etc.
2. Moral Rights – Right of author against any alteration in his work that might be injurious to his reputation.

 The following come under the purview of copyright protection:

1. Original literary, dramatic, musical and artistic works
2. Cinematograph films
3. Sound recordings
4. Computer programmers 

The Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) are the two conventions which serve as the basis of current international standards regarding intellectual property rights. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1994, is built on these century old principles. United States and India being a member of World Trade Organization (WTO) are bound by the TRIPS[v] Agreement.

The relevant provisions of Berne Convention which is embodied in the TRIPS Agreement provide exclusive rights to author to grant or allow for reproductions and adaptations of their original work. When a film’s storyline is borrowed which is recognizably borrowed is known as “derivative work”.[vi],[vii] But when it is used without the knowledge or authorization of the author/creator it is known as unauthorized derivative works which is not only harmful for the author/creator but it will adversely affect the demand for the original work.

In both the U.S. and India, infringement of copyright takes place when a party engages in actions reserved for the copyright owner. In US, for copyright infringement the copyright owner needs to prove that he holds the ownership of the copyright and that substantial matter has been copied from his protected material. In India, copyright infringement takes place if the work of the defendant is a substantial and material copy of the first. Substantiality is measured by weighing both quantity and quality of the work copied.

The Indian and U.S courts had used the “ordinary observer” test to determine the presence of substantial similarity between two works. According to the “ordinary observer” test two works are considered as substantially similar if an ordinary viewer of reasonable attentiveness concluded that the defendant unlawfully encroaches the protected expression of the plaintiff.

The U.S. courts originated the “ordinary observer” standard from the audience test in Daly v. Palmer (1868)[viii]. In this case the Court observed, “If enough random original elements are copied, even if individually insubstantial, they may constitute copyright infringement in the aggregate”.

The Supreme Court of India established the same standard test in the R.G.Anand vs. Delux Films (1978)[ix]. The Supreme Court observed that, “...in order to be actionable, a copy must be a substantial and material one that immediately demonstrates that an infringement has occurred. While simple additions, omissions, or modifications to the original work do not defeat the infringement claim, if the similarities between the two works appear coincidental and enough dissimilar elements exist to negate the intention to copy the original, infringement cannot be said to have occurred”. Courts in both countries thus analyze the quantity as well as quality of the copying in applying their respective versions of the ordinary observer tests.

Article 9.2 of TRIPS confirms that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. This concept has been incorporated in both the legal system of US and India.  This Agreement empowers the author/ creator to bring private cause of action for infringement in any member country where the infringement is occurred or occurring. Further, this Agreement says that member countries are bound to accord same rights to the author/ creator of other member country as it gives to their own[x]. Hence, it can be understood that Indian or American film-makers could bring a suit of infringement in either nation’s domestic courts.

Conclusion

Bollywood’s appeal is no longer limited to the South-Asian subcontinent. Bollywood’s international appeal is on the rise. The success of recent movies pertaining to South-Asian themes and culture such as Slumdog Millionaire and Bend It Like Beckham, while not Bollywood productions, have helped Bollywood receive more international attention. Therefore, Bollywood’s reputation and viewership among international audiences will benefit from original scripts and productions. Originality will ultimately lead Bollywood to greater revenues than copying does. Remaking and borrowing ideas from other countries is nothing new and is not altogether a bad phenomenon, so long as proper authorization is obtained from the right holder. Borrowing ideas, scripts and remaking them in different cultural contexts are a part of international cinema but the right way to do it is to obtain the proper license. It should also be noted that mere copying of idea cannot be considered as copyright infringement, as under TRIPS agreement only expressions are protected and not the ideas. So, for proving the infringement the plaintiff should prove that there is copying of both ideas and expression.

By Arvind Kumar

For Biswajit Sarkar

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[i] Film industry of USA.

[ii] The mainstream Indian film industry based in Mumbai, formally Bombay.

[iii] Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. [IA No.9600/2008 in CS(OS) 1607/2008]

http://delhicourts.nic.in/Sep08/WARNER%20BROS%20ENTERTAINMENT%20VS.%20HARINDER%20KOHLI.pdf

[iv] Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010)

http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.

[v] TRIPS: A More Detailed Overview of the TRIPS Agreement

http://www.wto.org/english/tratop_e/TRIPS_e/intel2_e.htm

[vi] 17 U.S.C. Section 106- copyright owner has exclusive rights to prepare derivative works based upon the copyrighted work;

Copyright Act of 1957 Section (14)(a)(vi) (India)-a copyright owner has the exclusive right to authorize adaptations of the work.

[vii] 17 U.S.C. Section 101-Defines a derivative work to be one based upon one or more preexisting works;

Copyright Act of 1957 Section 2(a)(v) (India)-defines an adaptation as:  “in relation to any work, the use of such work involving its rearrangement or alteration.”.

[viii] Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3,552)

[ix] R.G. Anand v. Delux Films (1978) 4 SCC 118

[x] Article 5 (1) of Berne Convention. This requirement is in compliance with the WTO’s goal of guaranteeing most-favored nation status to member countries and non-discriminatory treatment by and among members.

Registration and Protection of Designs in India

In India registration and protection of Designs are regulated by Designs Act 2000 and Designs rules 2001. Design is defined under Section 2 of Designs Act 2000 as only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957(14 of 1957).  A design is prohibited from registration on the grounds mentioned under Section 4 of the relevant Act, i.e.,

a) that the design is not new

b) that it has been previously published in India or in any other country by publication in tangible form or by use in or in any other way prior to the filing date, or where applicable, the priority date, or where applicable, the priority date of the application for registration; or 

c) that it has been significantly distinguishable from known designs or d) comprises or contains scandalous or obscene matter.   Further, a design is subject to cancellation on the grounds mentioned under Section 19 of the relevant Act, i.e., a) that the design has been previously registered in India, 

b) that it has been previously published in India or in any other country prior to the date of registration or c) that the design is not a new or original design or c) that the design is not registrable under this Act; or 

e) that it is not a design as defined under clause (d) of section 2. 

Although in India design has not been classified further into categories according to Designs Act 2000, but it has been observed that Indian Courts classify the design in question into aesthetic and functional. An aesthetic design is one which is applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof. A functional design means any design applied to any article, whether for the pattern or the shape or the configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied is to perform. In India the landmark judgment which acted as precedent for subsequent cases was passed in Bharat Glass Tube Limited v. Gopal Glass Works Limited. In this case the the Court gave interpretation of Section 2 (d) stating “Designs has been defined in Section 2(d) which means that a feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process. That means that a feature or a pattern which is registered with registering authority for being produced on a particular article by any industrial process whether manual, mechanical or chemical or by any other means which appears in a finished article and which can be judged solely by eye appeal.  The definition of design as defined in Section 2(d) read with application for registration and rule 11 with form 1 makes it clear that the design which is registered is to be applied to any finished article which may be judged solely by eye appeal. A conjoined reading of these three provisions makes it clear that a particular shape or a particular configuration is to be registered which is sought to be produced on any finished article which may be judged solely by eye appeal.[1] However the judgment passed in Interlego v. Tyco Industries,[2] the landmark British case which was pertaining to designs of toy bricks originated in Hong Kong and eventually was filed before the Privy Council in the United Kingdom acted as guiding principle for cases in India. In that the Privy Council observed that the bricks qualified for registered design protection, and thus did not qualify for copyright protection. Lord Oliver observed as follows -

“Inevitably a designer who sets out to make a model brick is going to end up by producing a design, in essence brick shaped. […] There is clearly scope in the instant case for that argument that what gives the Lego brick its individuality and the originality without which it would fail for want of novelty as a registrable design is the presence of features which serve only the functional purpose of enabling it to interlock effectively with the adjoining bricks above and below”.

The court further held that design drawings were a combination of both artistic and literary works. The written matter on such a drawing comprised the literary matter, and the graphics the artistic matter.

The only changes made to the drawings were alterations to some radii and to the dimensions of some elements. Lord Oliver further observed-

“Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality.”

In India designs are protected by two legal rights, they are as follow:

1)      Registered Designs

2)      Artistic Copyright

 

Design registration in India gives the owner, a monopoly on his or her design, i.e. the right for a limited period to stop others from making, using or selling the design without the owner’s permission and is additional to any design right or copyright protection that may exist automatically in the design.

           Under Section 6 

           (1) a design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. 

        (2)Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final.

         (3)Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated—

Under Section 7 the Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection.

           Under Section 11when a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration.

           To conclude with, a design is entitled to be registered and protected from being copied and applied on the same article and of the same class of articles which is not merely functional but has an aesthetic appeal to eye. At the same time a design is entitled of copyright which is absolutely original and has not been copied from any other class of articles.

By Ranidipa Ghosh

For Biswajit Sarkar

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[1] 2008 AIR 2520

[2] [1989] AC 217

Licensing Agreement

A License is a contractual right that gives someone permission to do a certain activity or to use certain property that is owned by someone else. In an Intellectual property license, one company grants permission to another to use its Intellectual property, to which it has exclusive rights.

A License allows an intellectual property rights holder (the licensor) to create a business from an invention or creative work by charging a user (the licensee) for product use. It also helps to control, manage and protect the intellectual property.

In Intellectual property, Licensing agreement is a written contract under which the owner of a copyright, know how, patent, service mark, trademark, or other intellectual property, allows a licensee to use, make, or sell copies of the original. Such agreements usually limit the scope or field of the licensee, and specify whether the license is exclusive or non-exclusive, and whether the licensee will pay royalties or some other consideration in exchange. While licensing agreements are mainly used in commercialization of a technology, they are also used by franchisers to promote sales of goods and services.

A variety of such licensing agreements are available, which may be broadly categorized as follows:

·         Technology licensing agreement: By a technology licensing agreement the licensor authorizes the licensee to use the technology under certain agreed terms and conditions. It is, therefore, a contract freely entered into between two parties and contains terms and conditions so agreed. Therefore, if any Small and medium size enterprises (SME) is interested in improving the quality of its product or manufacturing a new product by using the rights owned by others in the form of a patent, utility model, or know how protected by a trade secret then acquiring such rights through a licensing agreement is the right solution.

·         Trademark licensing and franchising agreement: A trademark license is an arrangement by which the licensor consents to the use of its trademark by the licensee on agreed terms and conditions. A franchising agreement is granted by the franchisor to the franchisee to use its trademark and the franchised system. Therefore, if any SME is interested in marketing the product or service, and the brand (trademark) of that product, is owned by others or, entering and expanding the existing market for the product or service for which the SME owns the right conferred by a trademark then considering a trademark license or a franchise agreement is the right solution.

·         Copyright license agreements: The Copyright License Agreement is an agreement between the owner of the copyright in any existing work or the prospective owner of the copyright and the company or individual in any future work in writing to another person for a limited time. This license should not be mistaken with an assignment. Therefore, if any SME is interested in manufacturing, distributing or marketing the results of the literary and artistic efforts of creators or, entering a market or expanding or extending the existing market for the literary and artistic efforts of the enterprise, then considering a copyright license agreement is the right solution.

However, in practice, all or some of these agreements often form part of one single contract, since, it involves not only the intellectual property rights but many other rights also.

Under the Trademark Act 1999, the assignability and transmissibility of trademark are covered from Section 37 to Section 45.Section 37 of the said Act deals with the power of the registered proprietor to assign the trademark; and the assignability and transmissibility of registered and unregistered trademark whether with or without the goodwill of the business concerned is covered under Section 38 and Section 39 of the Act respectively. The registration of the assignment comes under the purview of Section 45 of the said Act.

In International context, a formal licensing agreement is possible only if the intellectual property right that is wish to license is also protected in the other country or countries, and, if the intellectual property is not protected in such other country or countries then the property would not be license and also there would be no legal right to put any restriction on its use by anyone else.

By Biswajit Sarkar

In Re EMC: Another Blow to patent troll

Hardly one year after passing of the American Invents Act which addressed some of the irritating habits of patents trolls now it is the turn of US Court of appeal for Federal circuit to address the menace of patent owners who uses patent litigation as a tool to make money from companies rather than entering into actual business.

On May 4^th 2012, the Court of Appeal issued a blow to all Non-practicing entities who files multi- defendant cases as an effort to avoid the requirements of the America Invents Act. The Court in this case held that “Joinder” is not appropriate in multi-defendant patent infringement cases where only commanlity is alleged infringement of same patents. 

Oasis Research LLC, the plaintiff in the original suit is the owner of four US patents which deals with off-site computer data storage by allowing home computer users to remotely connect to an online service system for purposes of external data storage. Oasis Research LLC files a Multi – defendant patent infringement claim against the petitioners (defendants in original suit) as they offer online backup and storage though various websites.

The petitioners filed motions before the Eastern Texas District Court to sever the claims and transfer them to various jurisdictions. The District court denied petitioners motions reasoning that claims of Oasis LLC satisfy the transaction or occurrence test of Rule 20 of Federal Rules of Civil Procedure.

Denying the reasoning given by the Texas Court, the Court of appeal points out that under the correct test of transaction or occurrence an existence of a single common question of law or fact alone is insufficient to satisfy the transaction- or- occurrence requirement. Thus mere fact that the infringement of same claims of the same patent does not support joinder, even though the claims would raise common questions of claim construction.

Further the joinder of independent defendants is only appropriate where the accused products are same in respect to the same patent. But commonality of patent alone is not sufficient to allow joinder. Commonality shall be supplemented with overlapping facts which give rise to each cause of action. Thus, if there is no actual link between underlying facts of each claim of infringement the independently developed products using differently sources are not to be considered as the part of the same transaction.

The 18 page ruling of the Court of Appeal is a serious financial blow upon the patent owners who count on using cheap litigation to win favourable settlements.

 By Nithin V Kumar

For Biswajit Sarkar

Intellectual Property Rights and its Relevance in India

In earlier times, the concept of property meant something tangible. Man used to be in possession of property and property became the source of wealth and status in the society for him. As time went by, property created by the scope of one’s intellect became what is known as Intellectual Property Right. The problem with Intellectual Property was that it was intangible in nature.

Property has always been a symbol of power and strength for every individual and that is why every individual tries to maximize his property.

A human being is the sole proprietor of his brains and even law gives him a proprietor right in it. Just as John Locke had pointed out, a person has his property, two things:-

1.         The person himself or to say the human body.
2.         The skill of doing labour with his body and the work of his hand.

Similarly, intellect too is an integral part of his personality and it plays vital role in deciding what works his body can engage into or what works his hands would do or in other words we can say that a person intellect is exclusively his own.

Every object whether it is material/ non material, owns its existence to ideas and hence to the origin of ideas, that is intellect. This also holds further that any property in the generic sense, which can claim a proprietary right, is called Intellectual Property.

Further, if intellect or intellectual works is one’s personal characteristic or property, then anything that is the outcome of this application of his intellect is equally his own. This provides the law to give a person the right to own what he has created or produced. And this proprietor right over a product produced out of his intellect is called Intellectual Property Right.

The Twenty First Century is a century of knowledge, indeed the centaury of the Intellect. A nation’s ability to translate knowledge into wealth and social good through innovation hold the key to creation as well as processing of knowledge consequently issues generation, evaluation, exploitation of Intellectual Property would become critically important all over the world. Intellectual Property can be characterized as the property in Idea or their expression. It’s a creation of mind for example:  A technological Innovation, a poem or a design. It protects the rights of individuals and business who have transformed their ideas into property by granting rights to the owner of those properties.

The need arose for laws to protect such kinds of Intellectual Property laws to protect the various forms of Intellectual Property like Trade Marks, copy Rights, Designs, Patent & Geographical Indication.

For instance Tata Nano car: The entire car and its innovative engineering are protected by patents. The name “TATA NANO is protected by Trade Marks”. The design of car has design protection and all the pamphlets made for advertisement of car are protected of copy right.

The rights have been modified and new provisions have been created in order to cover new areas of Science and Technology like Information Technology, Biotechnology and Non Service Sector.  It may be observed that World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Right( popularly known as TRIPS) has extended minimum standards for protection globally. Hence India is under a pressure to increase the level of Intellectual Property protection in its own regime, based on standards in developed countries.

There are various forms of IPR. The Trade Related Aspects of Intellectual Property Rights (popularly known as TRIPS) in the Agreement of the World Trade Organisation (WTO) recognises seven forms of IPR, namely, patents, designs, trademarks, copyrights, geographical indications, integrated circuits and trade secrets.

Patents: These are legal rights granted for new inventions employing scientific and technical knowledge. Example: A new drug for the treatment of AIDS and a new cell phone.

Industrial Designs: A design is an idea or conception as to the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article, two or three-dimensional or both, by any industrial process or means which in the finished article appeal to and are judged solely by the eye or product. Examples: Designs as applied to shoes, TV, textiles.

Trade Marks: A trade mark is a visual symbol in the form of a word, device or label applied to an article of manufacture or commerce with a view to indicating to the public the origin of manufacture of the goods affixed with that mark .It distinguishes such goods from others in the trade. Examples: Coca Cola in soft drinks, SONY in electronic goods.

Copyrights: A copyright is basically the right to copy and make use of literary, dramatic, musical, artistic works, cinematographic films, records and broadcasts. It is a proprietary right and comes into existence as soon as the work is created. The concept had its origin in the Common Law. Subsequently it came to be governed by the statutory laws of each country. Examples: Poems, artistic drawings, paintings, computer / programs.

Protection for new plant varieties: TRIPS provisions of the WTO Agreement make it mandatory for member countries to provide protection for new plant varieties. Examples: New variety of rice or wheat. The provisions have given member countries two options for providing protection to new plant varieties —:

(i) Under the patent law itself and;
(ii) By a separate system (called Sui generis system).

Geographical Indications: These are indications that identify goods as originating in the territory of a country, a region or a locality in that territory, where a specific quality, reputation or other characteristic of the goods is essentially attributed to their geographical origin. Examples: Darjeeling tea, Kancheepuram sari.

Indian Government has taken a comprehensive set of initiatives to modernize the intellectual property administration in the country in view of the strategic significance assumed by intellectual property in the context of globalisation and liberalization of the Indian economy and the increasing administrative steps to create a modern and facilitative set up. The Designs Act, 2000, the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act 1999 have already been enacted to harmonize the Indian IP administration with the global system. In the Ministry of Commerce and Industry, the office of the 'Controller General of Patents, Designs and Trade Marks (CGPDTM)' has been set up under the Department of Industrial Policy and Promotion.

It administers all matters relating to patents, designs, trademarks and geographical indications and also directs and supervises the functioning of :-

•     The Patent Office (including Designs Wing)
•     The Patent Information System (PIS)
•     The Trade Marks Registry (TMR), and
•     The Geographical Indications Registry (GIR)

Besides, a 'Copyright Office' has been set up in the Department of Education of the Ministry of Human Resource Development, to provide all facilities including registration of copyrights and its neighbouring rights.

As far as issues relating to layout design of integrated circuits are concerned, 'Department of Information Technology' in the Ministry of Information Technology is the nodal organisation. While, 'Protection of Plant Varieties and Farmers' Rights Authority' in Ministry of Agriculture administers all measures and policies relating to plant varieties.

For complementing the administrative set up, several legislative initiatives have been taken. It includes, the Trade Marks Act, 1999; the Geographical Indications of Goods (Registration and Protection) Act 1999; the Designs Act, 2000; the Patents Act, 1970 and its subsequent amendments in 2002 and 2005; Indian Copyright Act, 1957 and its amendment Copyright (Amendment) Act, 1999; Semiconductor Integrated Circuit Layout Design Act, 2000; as well as the Protection of Plant varieties and Farmer's Rights Act, 2001.

A human endeavour which promotes Social, Economical, Scientifical or Cultural Development of the society must be encouraged and the creator or the innovator needs to be rewarded by suitable legal protection for his intellectual creation. Consequently Intellectual Property Right are those legal rights which govern the use of creation of Human Brains. Protection of Intellectual Properties is a very critical element in the offshore business model. There have been many cases where companies have lost their position in the market due to the loss of intellectual property. Understanding the country’s IP Rights and following the best practices described in this paper can drastically reduce the risk of losing the company’s intellectual property. Commitment to protect the intellectual property of a company should be developed and nurtured at all levels of the organization.

The bottom-line is that India considers itself a responsible member of the WTO which suggests that international class IPR protection should be in place. For instance even Bill Gates, the chief executive officer of Microsoft Corporation, has distinguished India as a most promising base for software development. If such an IPR-conscious business leader like Gates is of this opinion, one can only conclude that India's IPR scene is no deterrent. And in near future India will formulate more effective law in order to cope up with new areas which are yet to come in the field of IPR. Intellectual Property Rights (IPRs) play an important role in the social, economic and cultural development of a society. Intellectual Property Rights in India (IPRs in India) are gaining lot of attention and importance in India. India has begun to see some positive results as awareness of the need for greater IP protection has increased. India must continue to improve its IPR protection, or risk being left behind as other countries in the developing world implement protections and build their own knowledge based economies.what is a patent.

By
Biswajit Sarkar