What are IPRs? Types & Remedies for Violation in India 2020

What are IPRs? Types & Remedies for Violation in India 2020

Intellectual Property Rights

We all have heard about Intellectual Property Rights, isn’t it? The word “Intellectual” is derived from “Intellect” which refers to the creations of mind. 

As such, Intellectual Property is a type of intangible property. The Rights are granted to its creators and is territorial in nature. In other words, for protection of the IPRs, one has to seek protection under the relevant local law of the land. 

Types of Intellectual Property Rights:
There are different types of Intellectual Property Rights, including:

  • Patents 
  • Copyrights 
  • Trademarks 
  • Geographical Indications
  • Designs 
  • Semiconductor Integrated circuit layout designs 
  • Plant Varieties 
  • Trade Secrets etc. 

Benefits of IP Registration:

  • Innovation: IPRs foster innovation, R&D, creativity etc. by establishing ownership. 
  • Societal benefits: Provides society with innovative products and services.  
  • Legal Benefits: After due registration of IPs, its owners can avail criminal or civil remedies, on infringement of their rights. 
  • Economic benefits: IPRs enable its owners to monetize their creations, in the form of royalty or commissions.  

Effects of Non-Registration:

  • Only Civil Remedies can be Availed in case of Infringement of Rights: Except in Copyright cases, where it is not compulsory to register to seek criminal remedy. 
  • Weak Evidentiary Value: Thus, difficult to prove in the Court of law. 

Who can Obtain Protection under IPR Laws of India?
Any person who is creator of original and innovative work can seek IP protection. Also, he/ she should have principal place of business in India or have place of service in India. 

Government Initiatives:
In recent times, Government of India has sharpened its focus on IPRs. The following are the recent initiatives in the field of IPRs. 

1. NIPR Policy- National Intellectual Property Rights Policy 2016:
Indian government has approved a comprehensive NIPR Policy in 2016. It aims to stimulate R& D and innovation across all sectors, besides bringing more clarity regarding IPR related issues. 

2. CIPAM - Cell for IPR Promotion and Management:
CIPAM is a professional body of experts that works under DIPP. The body assists in meeting the objectives of the NIPR Policy by simplifying and streamlining IP related processes, takes steps for IPR awareness, conducting training modules etc. 

3. Awareness Initiatives:
To create awareness among various stakeholders, CIPAM has forged tie-ups with industry associations. The campaigns are conducted in industries and educational institutions across India. 

4. Strengthening Enforcement Agencies:
An “IPR Enforcement Tookit” has been launched by CIPAM in association with the Federation of Indian Chambers of Commerce & Industry, FICCI. It aids police officers in dealing with IPR related crimes. Periodical programs are also undertaken by CIMPAM in association with IP experts, for training of police officials on IPR enforcement. 

5. Sensitization of Judiciary:
DIPP in collaboration with National and State Judicial Academies has been conducting various training programs. It enables to sensitize the participating judges on government policies on IPR related matters.  

6. Modernization of IP Offices:
A series of measures have been undertaken by the Government of India to increase efficiency of IP offices. Some of these measures include:

  • E filing facilities for trademarks and patents 
  • Auto allotment of patent applications 
  • Public search for patents and trademarks 
  • Auto generation of TM certificates
  • Electronic certificates for patents after grant

Global Innovation Index:
India’s ranking on Global Innovation Index (GII) has shot up from 81 in 2015 to 52 in 2019.

Copyrights:
Copyright is an exclusive legal right granted to the creators of the intellectual work. Copyright owner has several rights including right to reproduce, translate, adapt, perform, distribute and publicly display the work, etc. When the owner of copyright forgoes some of its rights, it’s called copyleft. 

Registration is not mandatory since copyright comes into existence as soon as the intellectual work is created. However, it is highly recommended to get the copyright registered for better IPR enforceability. This is because a registered copyright has more evidentiary value in court of law.

Works Covered under Copyrights:
Following are the works covered under the Copyright law:

  • Literary including Software: Books, Essay, Compilations, Computer Programs.
  • Artistic: Drawing, Painting, Logo, Map, Chart, Plan, Photographs, work of Architecture.
  • Dramatic: Screenplay, Drama.
  • Musical: Musical Notations.
  • Sound Recording: Compact Disc.
  • Cinematography Films: Visual Recording which includes sound recording.

Duration of Copyright:

  • Literary, Dramatic, Musical or Artistic Works: Lifetime of the author + 60 years from the death of the author.
  • Anonymous and Pseudonymous Works: 60 years from the year the work was first published.
  • Works of Public Undertakings and Government Works: 60 years from the year the work was first published.
  • Works of International Organizations: 60 years from the year the work was first published.
  • Sound Recording: 60 years from the year in which the recording was published.
  • Cinematography Films: 60 years from the year in which the film was published.

Patents:
Patents are granted for inventions of a product or its process which is novel. For one invention, there can be only one patent. It is valid for a period of 20 years, starting from the date of filing of the patent application and the term cannot be extended. 

What cannot Patented:
Scientific principles, method of agriculture or horticulture, traditional knowledge, contrary to well established natural laws, method of treatment, admixtures, formulation of abstract theory, frivolous inventions, prejudicial to morality or injurious to public health, incremental inventions without increase in efficacy and inventions related to atomic energy are some of the inventions which are not patentable under Section 3 and 4 of the Patent Act, 1970.

Trademark:
A trademark is a business identity and helps its customers to identify and distinguish the goods or service offered by the entity. Names, logo, packaging, sounds, signs, words, colors or any combination thereof can be filed as trademarks.

Designs:
Intellectual Property dealing with Design is meant to protect the aesthetic / ornamental features of an object. However, there can’t be protection over functional aspects. Thus, Designs Act protects the look and feel of the product, to prevent duplication. 

Geographical Indicators (GI):
Geographical Indicators are natural or manufactured product, owing its origin to a particular geographical territory. A product is considered to be manufactured in a territory if either the production or processing or preparation of goods takes place there. 

GI promotes economic prosperity of the local region. 

Examples:
Some examples of products with GI status include - Darjeeling Tea, Mahabaleshwar Strawberry, Kullu Shawl, Blue Pottery of Jaipur, Banaras Brocades and Sarees, Thanjavur Art Plate, Makrana Marble etc.

Who can Apply:
Any association of persons, producers, organization or authority upon representing the interests of the producers in a particular region can apply for GI. 

Semiconductor Integrated Circuits Layout Design:
Semiconductor Integrated Circuit: A Product having transistors and other circuitry elements designed to perform an electronic circuitry function.
Layout Design: A layout of transistors and other circuitry elements including lead wires connected in a semiconductor integrated circuits.

Criteria for Registration:

  • Original
  • Inherently distinctive
  • Not commercially exploited anywhere

Plant Varieties (Ministry of Agriculture):
Recognizes and protects the right of farmers with respect to their contribution in conservation, improvement and making available plant genetic resources for development of new plant varieties. 

Plant varieties IPR protection is a unique aspect of Indian IPR regime which recognizes the farmers as cultivator, conserver and breeder. 

Types of varieties:
“The new, extant, farmer’s, essentially derived variety” can be classified depending on the criteria of whether the variety has novelty, distinctiveness, uniformity and stability, traditionally cultivated or genetically engineered.

Criteria:
Novel: New variety.
Distinct: If the variety has at least one essential characteristic different from other exiting varieties.
Uniform: Variety having sufficient uniform essential characteristics.
Stable: Essential characteristic remain unchanged after repeated propagation.

Trade Secrets: 
It relates to business related information not known to the public. E.g., coca cola. 

It is associated with a formula, pattern, compilation, program, device, method, technique or process that derive independent economic value and is reasonable under the circumstances to maintain secrecy. The information is not generally known among or readily accessible to persons that normally deal with the kind of information in question.

The information has actual or potential commercial value because it secret, and the person lawfully in control over the information has taken reasonable steps under the circumstances to keep it secret.

Trade secrets may include R&D information, software algorithms, formulas, ingredients, methods, strategies or policies of a company etc. 

Civil remedies:
Interlocutory/ Permanent Injunction:

  • An award of costs and damages
  • Delivery up and destruction

Additional Remedies in Case of Copyright:

  • Mareva injunction
  • Anton pillar order
  • John doe order

Acts Under which Civil Remedies are Available:

  • Copyrights Act, 1957
  • Geographical Indication of Goods (Registration and Protection) Act, 1999
  • Trade Marks Act, 1999
  • Patent Act, 1970 
  • Design Act, 2000

Criminal Remedies:

  • Imprisonment
  • Fine

Acts Under which Criminal Remedies Available:

  • Copyright Act, 1957
  • Biological Diversity Act, 2002
  • Semiconductor Integrated Circuits Layout Design Act, 2000
  • Trade Marks Act, 1999
  • Protection of Plants & Varieties and Farmers Rights Act,2001

Some Useful Links:
DIPP: Nodal point for all IPR policy issues: http://dipp.nic.in/
CGPTDM Office: For filing of IP applications/ to obtain real time status of all IP applications/ checking grants/ registration of IPRs: www.ipindia.nic.in
Copyright Office: For information related to filing and status of copyright applications: http://copyright.gov.in
Startup India: For information regarding startups: http://startupindia.gov.in
Protection of Plant Varieties and Farmers’ Rights Authority: For filling/ registration of plant variety applications: http://plantauthority.gov.in
TIFAC: For information on filing of Indian/ foreign patents, patent search facilities: www.tifac.org.in
Semiconductor Integrated Circuits Layouts Design Registry (SICLDR): For information related to filling and status of Semiconductor Integrated Circuit Layout Design applications: http://sicldr.gov.in

(#Some of the content has been derived from CIPAM Booklet on IPRs).