INTELLECTUAL PROPERTY RIGHTS

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A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.  In order to be patentable, the invention must fulfil certain conditions.

PatentPatent

Applied individually or jointly by inventor .

Tenure – 20 years

Necessity of Patent

Eligibility for Patent

Role of Patent in everyday life

Legislation

The Patent system in India is governed by the Patents Act, 1970 (No 39 of 1970) & The Patents Rules 1972, effective from April 20,1972. Subsequently The Patents Act, 1970 is amended effective from January 1, 1995 & The Patents Rules, 1972 is amended effective from June 2, 1999.

Membership of International Treaties India is member of the following treaties governing patents:

Convention establishing World Intellectual Property Organization (WIPO)

Trips Agreement under the World Trade Organization.

Paris Convention for the protection of Industrial Property with effect from Dec. 7, 1998.

Patent Cooperation Treaty (PCT) with effective from Dec. 7, 1998.

Types of Patents

Ordinary Application Application for Patent of Addition Divisional Application Convention application National Phase Application under PCT.

Patentable Inventions

Non Patentable Inventions

How is a patent granted?How is a patent granted?

• Publication

• Request for examination

• Examination

• Opposition

• Grant or sealing of patent

• Register of patents

• Rights of patentee

• Infringement

India simplifies Patent NormsIndia simplifies Patent Norms

• India notified patent rule(2005) to bring changes To provide transparency Decentralization Simplify the procedure

• Following changes were made:-

Application to be mandatory published within 18months. In case of request – published within 1 month Definitive time frames have been prescribed Referred to examiner – 1month of request Issue of 1st examination report – 6 months

Case studyCase study

Bajaj vs Tvs:-

• Introduction of case

• DTSi Debate between the two wheeler manufacturing giants.

• Role of Madras single bench high court.

• DTSi and CC-VTi technology.

• “No man can be condemned unheard”

Geographical indication includes any name, geographical or figurative representation or any combination of them conveying or suggesting the geographical origin of goods to which it applies.

Procedure for registrationProcedure for registration• Application

• Examination

• Acceptance and publication

• Opposition, if any

• Registration

TRIPS agreement on GI

Part II, Section 3, in Articles 22-24

• Article 22 legal opportunities in their own laws for the owner of a GI registration.

• Article 22 governments may refuse to register a trademark or may invalidate an existing trademark.

Article 23 the owners of GI the right, under their laws, to prevent the use of a geographical.

Article 24 exceptions to the protection of geographical indications that are particularly relevant for geographical indications.

Protection Benefits on GIProtection Benefits on GI

Product Marketing Strategy

Adding More Value

Improving the Reputation

Equal Treatment

Action For Unfair Competition

GI InterestGI Interest

Social Rural employment created / stabilized Local commodity chain strengthened Environmental sustainable approach of territory Economical guaranteed quality for consumers

GI that cannot be enlisted :- Indication that has become generic. Indication likely to conflict with the name of a plant variety or animal breed

Case studies: Tequila (Mexico)Case studies: Tequila (Mexico)

Alcoholic beverage obtained through must by sugar extraction of the hearts of blue agave

The Tequila mixto 49-51 with a proportion of 51% blue agave sugar and 49% of other sugar and the tequila 100%.

Due to agave shortage its quantity was reduced from 100%-70% which was later reduced to 30% not accepted by Mexican government.

Under GI terms the product ingredients needs to be produced in the territory of manufacturing Tequila.

This did not allowed the manufacturers to import blue agave which led towards conflict among the manufacturers.

In 2006 modification of norms allowed manufacturing of flavoured Tequilas.

Also maturing of Tequila for atleast 3 years.

ConclusionConclusion

Valuable promoting tool

The reputation for local products

National patrimony

A trademark is a sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors

PurposePurpose Trademarks serve mainly three purposes:

Encourage  the  production  of  quality products.  Reduce  the  customer’s  costs  of  shopping.  Help the customer to make decisions on purchasing products.

AdvantagesAdvantages Promotes Economic Efficiency Uniformity of Quality of products in market place. Uniformity  of  quality  of  products in market place. Trademarks reduce the customer’s cost and agony.

Types Of TrademarkTypes Of Trademark

Product Trademark

Service Trademark

Certification Trademark

Collective Trademark

Trademark registration requirementTrademark registration requirement

State trademark protection - used within the state.

Federal trademark protection- used interstate and international commerce.

Trademark is not Federally registered until the mark is actually used in commerce.

No time limit on filing a trademark application.

In case of Internet, URL(domain name) of website need to be register.

Infringement (section 29)Infringement (section 29)

Passing Off:

If the Trade mark is not only deceptively similar to the trademark of other company but also creating confusion for the customers.

Results in damage of business of company.

Statutory remedy is available for infringement .

The action for passing off is a common law remedy

Difference between infringement and passing-off.Difference between infringement and passing-off.

InfringementStatutory remedy is available for

infringement.

It is necessary only to establish that the infringing mark is identical or deceptively similar to the registered mark.

Registration is given only to a particular category of goods

Passing-Off The action for passing off is a

common law remedy.

Need to prove, marks are identical or similar, which is likely to cause confusion and damage to the business of the company.

Goods need not be same, they may be related or even different.

New genres of trademarkNew genres of trademark

Holograms If you look at a credit card for instance, you will see a small image that

changes according to the angle from which you look at it

Sound mark an advertising jingle can serve as a trademark

Scent mark

Trademarks Amendment Bill It amends Trademark act, by Introduction of International Registrations . Through International Bureau of World Intellectual Property

Organization (WIPO). Section 11 of trademark act

Characteristics of Trademark

Distinctive Apple” is a very distinctive trademark for a computer, because it has

absolutely nothing to do with computers, it would not be distinctive for actual apples

Non-deceptive

Madrid protocol 36a.Madrid protocol 36a.

ApplicationExplanationbasic applicationbasic registrationCommon RegulationsContracting OrganisationContracting PartyContracting State International application

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