INTELLECTUAL PROPERTY RIGHTS (IPR)

Intellectual property rights are basically private rights. By means of intellectual property rights, law
confers an interest that is akin to a monopoly, with the sole purpose of stimulating innovations and
creativity. Protection is granted to the rights holders not merely to convey an exclusive title for the
creations but also includes the right to reproduce, distribute and gain commercial returns for their
creations. States provide territorial protection to innovations and objects of art. However, now that
these rights have become commercial commodities and form the core of trading activities across the
globe, intellectual property has entered the global markets and cannot remain territorial in nature any
longer. Intellectual property rights are now protected at the global level as well as within regional
and local frameworks of law.

Classification of Intellectual Property Rights

Intellectual property is traditionally divided into two branches, Industrial property and
Copyright. The Convention Establishing the World Intellectual Property Organization (WIPO)
provides under Article 2 (viii) that intellectual property shall include rights relating to:

Literary, artistic and scientific works,

Performances of performing artists, phonograms, and broadcasts,

Inventions in all fields of human endeavor,

Scientific discoveries,

Industrial designs,

Trademarks, service marks, and commercial names and designations,

Protection against unfair competition, and all other rights resulting from intellectual activity in
the industrial, scientific, literary or artistic fields.

TRIPS Agreement through Section I to Section VII lists out the following categories of intellectual
property:

Copyright and Related Works

Rights of artists, painters, musicians, sculptors, photographers and authors for copyright
in their works;

Rights of computer programs whether in source or object code for a copyright in their
programs and compilation of data;

Rights of performers, producers of phonograms (sound recordings) and broadcasting

organizations for a copyright in their work;

Rights of traders in their Trademarks

Rights of manufacturers and producers for Geographical Indications in relation to such

products and produce

Rights of designers for their distinctive Industrial Designs

Right of inventors to be granted Patents for their inventions

Rights of computer technologists for their Layout Designs of Integrated Circuits

Rights of businessmen for protection of their Undisclosed Information of Technology and

Management i.e., trade secrets/confidential information or simply know-how.

Various Categories of Intellectual Property

The expression intellectual property covers inventions and industrial designs. To distinguish
between the two, inventions are new solutions to technical problems, and industrial designs are

aesthetic creations determining the appearance of industrial products. Industrial property includes
patents, trademarks, service marks, commercial names and designations, including indications of
source and appellations of origin, and protection against unfair competition.
PATENTS
A patent is a document, issued, upon application, by a government office, or a regional office acting
for several countries, which describes an invention and creates a legal situation in which normally
the patented invention can only be exploited i.e., manufactured, used, sold, imported with the
authorization of the owner of the patent. A patent may relate to a product or a process. Patents are
meant to protect technical innovation and require a formal application process.
COPYRIGHTS
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 the copyright.
TRADEMARKS
A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them
from the goods of its competitors. For practical purposes a trademark may be defined simply as, A
sign which serves to distinguish the goods of one enterprise from those of other enterprises i as
defined in the WIPO Model Law for Developing Countries on Marks, Trade Names and Acts of
Unfair Competition of 1967.ii
GEOGRAPHICAL INDICATIONS
Geographical Indications is a category of IP that has made its foray into the legal realms only
recently. The term geographical indication refers to the protection as a category of IP, names and
symbols, which indicate a certain geographical origin of a given product. Geographical indications
acquire commercial value when a reputation is made and a standard set such that a product gets
associated with its place of origin. Well-known examples would be Champagne and Darjeeling, the
former more likely to bring to mind white wine and the latter, tea, than the places themselves.
INDUSTRIAL DESIGNS
Industrial design refers to the creative activity of achieving a formal or ornamental appearance for
mass-produced items that, within the available cost constraints, satisfies both the need for the item to
appeal visually to potential consumers, and the need for the item to perform its intended function
efficiently.
LAY-OUT DESIGNS OF INTEGRATED CIRCUITS
Lay-out designs or topographies of Integrated Circuits are the subject matter of the Treaty on
Intellectual Property in Respect of Integrated Circuitsiii that provides the following definitions:
i.

Integrated circuit means a product, in its final form or an intermediate form, in which the
elements, at least one of which is an active element, and some or all of the inter-connections
are integrally formed in and/or on a piece of material and which is intended to perform an
electronic function,

ii.

Layout-design (topography) means the three-dimensional disposition, however expressed, of

the elements, at least one of which is an active element, and of some or all of the
interconnections of an integrated circuit, or such a three-dimensional disposition prepared for
an integrated circuit intended for manufacture ... iv

TRADITIONAL KNOWLEDGE
Traditional Knowledge is a category of creations of the human intellect that are on the verge of
being admitted into the hallowed realms of IP protection. The Intergovernmental Committee of the
WIPO on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore is charged
with the task of delineating the scope of subject matter in respect of which the Member States wish
to discuss the application of intellectual property protection for the purpose of having a definition of
the term traditional knowledge.v Traditional knowledge embraces all kinds of scientific,
agricultural, technical, architectural, herbal, medicinal and ecological knowledge.
PROTECTION OF PLANT VARIETIES

Article 27.3 of the TRIPS agreement provides, protection of plant varieties either by patents or by
an effective sui generisvi system or by any combination thereof. An international sui generis system
devised for the protection of plant varieties is embodied in the International Convention for the
Protection of New Varieties of Plants.

Protection of Intellectual Property Rights

Every person has a right to create his work and also to protect the work so created. When a party
uses the intellectual property of a person without his permission it amounts to infringement. Anyone
who makes, uses, sells, places on sale, or imports a claimed work is guilty of infringement. Any
unauthorized use or intrusion of any legal right by a person other than the right holder is termed as an
infringement. An infringement denotes intrusion upon or interfering with or contravention of some
legal rights, which are granted to the IP right holder. For example, the performance of any act, which
is legally permitted to be executed exclusively by the patentee, amounts to infringement of the rights
of the patent holder. Only commercial use of such invention would be deemed to be an infringement.
Infringement takes place in many forms. The acts that cause infringement differ from each type of
intellectual property.
The various IP laws grants rights to certain category of people to initiate a suit for infringement. In
general the holder/owner (owner includes joint owners also) of the intellectual property right is granted
the right to initiate a suit for infringement. Apart from that an exclusive licensee can also make the first
move towards seeking remedy for an infringement. In case a compulsory license has been granted,
then, the compulsory licensee too has the right to seek relief for infringement.
Intellectual property regimes can be considered as a system of recognition and rewards. A creator
deserves just compensation for the hard work and ingenuity that results in something of value,
irrespective of whether the result is a tangible output such as a bushel of wheat or an intangible
output such as a song or a technique for better wheat cultivation. A report leading up to the 1844
French Patent Law for example commented that:
Every useful discovery is the presentation of a service rendered to society. It is, therefore, just
that he who has rendered this service should be compensated by society that receives it.vii
The utilitarian or economic rationale for intellectual property rights dominate in the developed
economies of the west, which characterizes IP as a system of incentives to foster innovation through
rewards, primarily financial, for creators and investors, thereby benefiting the society at large. In the
west, these rationales have coalesced as two broad legal traditions: IPRs as human rights and IPRs as
a utilitarian mechanism. A combination of the two traditions would give the following rationale for
copyright protectionviii:
i.
Personality the work of authorship bears the personal imprint of its maker: copyright is a
kind of a right of personality.
ii. Natural law copyright reflects notions of natural justice: Authors rights are not created by
law, but have always existed in the legal consciousness of man.
iii. Economic arguments copyright protection promotes economic efficiency, by optimizing
allocation of scarce resources through the pricing system.
iv.

Social and cultural goods copyright acts as an incentive to create and disseminate works that
serve a valuable social or cultural purpose.

v.

Freedom of expression copyright is the proverbial engine of free expression. It gives the
creator independence to express.
Table 2: IPRs at a Glance
Types of IP

Categories Protected

Subject Matter

Fields of Application

Industrial Property

Patents, Utility Models

New, non-obvious
inventions capable of
industrial applications

Manufacturing, Agriculture

Major International
Instruments
Paris Convention,
Patent Cooperation
Treaty (PCT),
Budapest Treaty,
Strasbourg Agreement,
TRIPS

Industrial Designs

Ornamental Designs

Manufacturing, Clothing,
automobiles

Hague Agreement,
Locarno Agreement,

Types of IP

Categories Protected

Subject Matter

Fields of Application

Major International
Instruments
TRIPS

Literary and Artistic

Property

Trademarks

Signs or symbols to identify All industries

goods and services

Madrid Agreement,
Nice Agreement,
Vienna Agreement,
TRIPS

Geographical
Indications

Product names related to a Agricultural products,

specific region or country
foodstuffs etc.

Lisbon Agreement,
TRIPS

Trade Secrets

Business Information

All Industries

TRIPS

Copyright and
Neighboring Rights

Original works of
authorship,

Printing, entertainment
Berne Convention,
audio, video, motion pictures, Rome Convention,
software, broadcasting
Geneva Convention,
Brussels
Convention, WIPO
Copyright Treaty
1996, WIPO
Performances and
Phonograms Treaty,
Universal
Copyright Convention,
TRIPS

Sui Generis Protection

Plant breeders rights

New, stable, homogenous, Agriculture and food industry Convention on New

distinguishable plant varieties
Varieties of Plants
(UPOV), TRIPS

Integrated Circuits

Original layout/designs of
semiconductors

Microelectronics Industry

Washington Treaty,
TRIPS

Legal Framework for IPR Protection

IPRs affect the growth and prosperity of almost all the industries. The impact of IPRs can be
witnessed specifically in the fields of chemical and pharmaceutical industries, publication and
entertainment, software etc. The law governing Trademarks, Patents, Designs and Copyrights are
separate. Remedies prescribed by the concerned Acts for the infringement of different IPRs also vary
accordingly. The following are the Acts that deal with the specific area of IPRs:

Patents, Designs The Indian Patents Act, 1970 and The Indian Patents & Designs Act, 2000
respectively.

Trademarks The Trade and Merchandise Marks Act, 1958, Trade Marks Act, 1999.

Copyrights The Copyright Act, 1957.

Geographical Indications of Goods The Geographical Indications of Goods (Registration and

Protection) Act, 1999.

PATENTS
The word patent means the exclusive privilege granted by the sovereign authority to an inventor
with respect to his invention. It is clear that the patent implies a grant from the sovereign power,
securing to the inventor for a limited time the exclusive right to make, use and vend the invention.
The person who has been granted the patent right has the right to exclusively use his invention, and
if any other party uses the right without having authority to do so, it will amount to infringement.
The unauthorized use, sale or distribution of a patented product or process amounts to infringement.
Action for infringement of a patent must be instituted by filing a suit in the Court having
jurisdiction. The right to sue for infringement belongs to the patentee. A person who threatens to
infringe may also be sued.
The Act has specified remedies for infringement in the form of injunction and at the option of the
plaintiff, either damages or an account of profit and infringing goods can be seized, forfeited or
destroyed, as the Court deems fit under the circumstances of the case without payment of any
compensation. The action against infringement can be brought in a District Court or a High Court.

TRADEMARKS
A trademark is a visual symbol that is in the form of a word, device, or a label and that is applied to
articles of commerce for indicating the public that the goods they intent to purchase are
manufactured by a specific person as distinguished from similar goods that are manufactured by
other persons.
Trademarks can be protected in the following three ways:
(i) By Registration: The best way to protect a trademark is by registration. Infringement of such a
registered trademark can be claimed in the Court of law. Registration of the Trademark gives
an exclusive right to the use of the trademark in relation to the goods for which it is registered,
and obtain relief in respect of infringement of the trademark, as provided by the Act.
(ii) By action for passing off: Relief in suits for infringement or for passing off have been
specified under Section 135 as follows
The relief that court grants in a suit for infringement or for passing off is inclusive of injunction
and at the option of the plaintiff damages or an account of profits along with or without an
order for the delivery up of the infringing labels and marks for the purpose of destruction or
erasure. In an action for Passing off, the basic principle is that no one has any right to represent
for trade purposes, his goods or business as being the goods or business of somebody else. The
object of this law is to protect the goodwill and reputation of a business from encroachment by
dishonest competitors.
(iii) By Criminal Action against Infringer: Whether the mark is registered or not, criminal action
against the infringer is available, provided the two marks very closely resemble to each other.
Though the intention to deceive need not be proved, evidence of such intention will be an
important factor in favor of the complainant.
COPYRIGHTS
Copyright is a property right, which exists in certain specified types of works. It protects
original/creative works. It protects any literary, dramatic, musical, artistic, and certain other
intellectual works. Copyright protects works such as poetry, video games, videos, plays, paintings,
sculpture, recorded music performances, novels, photographs, choreography and architectural
designs. It is the exclusive right to do and to authorize others to do certain acts in relation to that
work or other subject matter.
Infringement
The Act grants certain exclusive rights to the copyright owner. A person who does something, with a
protected work, that only the copyright owner is entitled to do, and does so without the permission
of the copyright owner of that work, infringes the copyright of the owner and can be held liable. If
any one without the authorization of the owner does the following act it amounts to an infringement.
Infringement includes the unauthorized or unlicensed copying of a work subject to copyright.
Offences
Section 63 of the Act lays down that an offence is committed if any person who knowingly infringes
or abets the infringement of:

the copyright in a work, or

any other right conferred by this Act.

The offences are punishable under the Act with an imprisonment for a term, which is not less than
six months and may extend to three years and with fine which is not to be less than sixty thousand
rupees but which may extend to two lakh rupees. But if these infringements were not made for gain
on the course of trade or business the court is at liberty to impose a sentence of imprisonment for a
term of less than six months or a fine of less than sixty thousand rupees.
Section 63 A provides that if anyone has already been convicted of an offence under the Copyright
Act and is convicted again of such offence he is punishable with imprisonment for a term which
shall not be less than one year but which may extend to three years. A fine of not less than one lakh
rupees to two lakh rupees may also be imposed. The gravity of penalties differs from offences to
offences.

The Act specifically provides that where any offence under this Act has been committed by a
company, every person who at the time the offence was committed was in charge of, and was
responsible to the company for, the conduct of the business of the company, as well as the company
shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished
accordingly.
Civil Remedies
The owner of copyright can sue in the District Court having jurisdiction and shall be entitled to all
such remedies by way of injunction damages, accounts and otherwise as are conferred by law for the
infringement of a right. The owner of copyright for this purpose shall include an exclusive licensee
and in the case of an anonymous literary, dramatic, musical or artistic work, the publisher of the
work. It is, however, provided that if the defendant proves that at the date of infringement he was not
aware or had no reasonable grounds for believing that copyright subsisted in the work, then the
plaintiff shall only be entitled to an injunction and account for profit and shall not get damages.
The Act provides for the appropriate authority that can be approached in case an appeal is preferred.
If an appeal is to be preferred against certain orders of the magistrate the aggrieved person can
within thirty days of the date of such order approach the court to which appeals from the court
generally lie. If it is an appeal against the orders of the Registrar of Copyrights or Copyright Board
any aggrieved person can make an appeal within three months from the date of such decision or
order, to the High Court within whose jurisdiction the appellant actually and voluntarily resides or
carries on business or personally works for gain.

Geographical Indications of Goods

India, after becoming a signatory to the World Trade Organization, enacted the Geographical
Indications of Goods (Registration and Protection) Act, 1999. This Act is aimed at providing for the
registration and better protection of geographical indications relating to goods in India.
The Act provides for certain specific definitions. According to the Act geographical indication, in
relation to goods, means an indication which identifies such goods as agricultural goods, natural
goods or manufactured goods as originating, or manufactured in the territory of a country, or a
region or locality in that territory, where a given quality, reputation or other characteristic of such
goods is essentially attributable to its geographical origin and in case where such goods are
manufactured goods one of the activities of either the production or of processing or preparation of
the goods concerned takes place in such territory, region or locality, as the case may be.
REGISTRATION OF GEOGRAPHICAL INDICATIONS
Section 20 of the Act provides that if a geographical indication is registered only then can a suit be
instituted to prevent, or to recover damages for, the infringement of that geographical indication. It is
further provided that nothing in this Act will affect rights of action against any person for passing off
goods as the goods of another person or the remedies related to it. As such the registration of a
geographical indications is not compulsory. If it is registered it affords better legal protection to
facilitate an action for infringement. The registered proprietor and authorized users can initiate
infringement actions and the authorized users can exercise the exclusive right to use the
geographical indications.
INFRINGEMENT
According to Section 22 of the Act an infringement occurs if any person who is not an authorized
user:

uses such geographical indications by any means in the designations or presentation of goods
that indicates or suggests that such goods originate in a geographical area save for the true
place of origin of such goods in a manner which misleads the persons as to the geographical
origin of such goods; or

uses any geographical indications in such manner which constitutes an act of unfair
competitionix including passing off in respect of registered geographical indications.

The Act further provides that an unauthorized person who uses geographical indications to such
goods or class or classes of goods and even indicates true origin of such goods or uses such other
geographical indications to such goods or class or classes of goods in translation of the true place of
origin or is accompanied by the expression such as kind, style, imitation, or the like, will still
amount to an infringement. This Section provides that if the goods in respect of which a
geographical indication has been registered is lawfully acquired by another person other than the
authorized user of the geographical indications, any further dealings in those goods by that person
like processing or packaging, will not comprise an infringement of such geographical indication.

Section 1(1)(a)
The Model Trademark Law
iii
The IPIC Treaty; Adopted at Washington DC in 1989
iv
Article 2, IPIC Treaty
v
Traditional Knowledge Operational Terms and Definitions, Prepared by the Secretariat of the WIPO,
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 20th
May 2002; WIPO/GRTKF/IC/3/9
vi
Sui Generis stands for of its own kind; Peculiar to itself, The Law Lexicon, Supra n.1 at 1831
vii
www.caslon.com.au/ipguide.htm
viii
Id
ii

ix

An act of unfair competition includes:

all acts of such a nature as to create confusion by any means whatsoever with the establishment, the goods or the
industrial or commercial activities, of a competitor;
false allegations in the course of trade of such a nature as to discredit the establishment, the goods or the industrial
or commercial activities, of a competitor;
geographical indications, the use of which in the course of trade is liable to mislead the persons as to the nature, the
manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods