Published on March 9, 2014
INTELLECTUAL PROPERTY RIGHTS By Avinash(UR11BT001) & Akileshwar(UR11BT006)
Definition Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
Categories (i) Copyright and rights related to copyright. The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author. Also protected through copyright and related (sometimes referred to as “neighbouring”) rights are the rights of performers (e.g. actors, singers and musicians), producers of phonograms (sound recordings) and broadcasting organizations. The main social purpose of protection of copyright and related rights is to encourage and reward creative work.
(ii) Industrial property. Industrial property can usefully be divided into two main areas: One area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin). . Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets. The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities.
Overview of concepts so far: Intellectual property (IP) is a legal concept which refers to creations of the mind for which exclusive rights are recognized. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright, trademarks, patents,industrial design rights, trade dress, and in some jurisdictions trade secrets.
Patents A patent grants an inventor exclusive rights to make, use, sell, and import an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.
Copyright A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works“.Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.
Industrial design right An industrial design right protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial design can be a twoor three-dimensional pattern used to produce a product, industrial commodity or handicraft.
Trademarks A trademark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others.[ TRADE DRESS Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers. TRADE SECRETS A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.
OBJECTIVES The stated objective of most intellectual property law (with the exception of trademarks) is to "Promote progress.By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection."
Financial incentives These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs.[
Economic growth The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights are essential to maintaining economic growth. TheWIPO Intellectual Property Handbook gives two reasons for intellectual property laws: One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development
Morality According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property.
Advantages and disadvantages Trade Mark Advantage: Legally prevents others taking advantage of customer good will generated by your business by trading under your name (or something very similar) Disadvantages: Having a registered trade mark does not entitle you to the related internet domain names. The degree to which similar (not identical) trademarks infringe upon your business is a matter for debate in civil action with related cost.
Copyrights: Comes into effect immediately something that can be protected is created and ‘fixed’ insomeway e.g. on paper, on film, via sound recording, as an electronic record on the internet, etc Advantages: No official registration required. Comes into effect immediately. No cost to marking something as copyright Disadvantages: Does not protect ideas, only the way in which the idea is expressed To be effective it must be enforced.You have responsibility for legally asserting copyright if you feel it is infringed. Involves legal costs and proving infringement.
Patent: Granted by a government, a patent is the right for a limited period to stop others making, using or selling an invention without permission. Advantages: A patent gives the legal right to stop others using your invention. Its existence may be enough to deter competitors Buys time (20 years) in which an inventor can develop a market to the product or process Attractive to investors as it limits competition.
Disadvantages: Takes time and money to establish a patent. All patents have to be ‘researched’ to ensure there are no existing patents of a similar nature – involves legal fees Not possible to guarantee that a patent (once granted) is valid, it can be legally challenged and revoked with no refunds It is still up to the inventor to protect a patent if they can identify an infringement – the patent office don’t take sides Granting a patent is no indication that the invention has any merit or commercial value Some products and process can be varied slightly to get around the exact wording of Patents.
Industrial Design: Monopoly right for the appearance of the whole or a part of a product resulting from the features lines, colours, shape, texture or materials used. Cannot be the same as any design already available and must have ‘individual characters. Advantages: Can be combined with legal protection from copy right and design rights Protect genuine design innovation for up to 25 year. Disadvantages: Cannot be applied to designs that concern how a product works or which are not visible in normal use – ascetics only Easily subverted by slight amendments to the basic design
CASE STUDY : Biswanath Prasad Radhey SHYam v HIndUSTAN METAL INDUSTRY • Plaintiff has brass and German silver business • Defendant has Dishes and Utensils • Plantiff invented a safer version of utensils and got it patented • Defnendant used the same device without permission • Plantiff filed a case and asked for permanent injuction • Court held the invention as merely an application of the older version • It was not a novel invention • Enough evidence was not provided to make it unique from the previous version • So the patent was made invalid and then liable to revoke
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