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Protecting novelty with IPRs

Protecting novelty with IPRs

Technical Articles
Mar 01,18

While Ã¢â‚¬Ëœintellectual propertyÃ¢â‚¬â„¢ came into existence in the 19th century, it has now become a commonplace in the world. Parimal Kowtal throws light on the various types of IPRs and importance.

While ‘intellectual property’ came into existence in the 19th century, it has now become a commonplace in the world. Parimal Kowtal throws light on the various types of IPRs and importance.

The novelty or obviousness of a concept or an idea leading to innovation which affects the society, has evolved the process of guarding Intellectual Property (IP) a term referring to creation of intellect for which monopoly is assigned to the designated owners by law.

The common types of intellectual property rights (IPRs) are trademarks, copyrights, patents, industrial design rights, geographical indications (GI), trade secrets, trade-dress and plant variety. All these cover music, literature, and other artistic works; discoveries and inventions; and words, phrases, symbols, and designs. The intellectual property law has evolved over centuries, it was not until the 19th century that the term ‘intellectual property’ began to be used, and of late in the 20th century it has become commonplace in the world.

Trademark: Defined as a recognisable sign, design or expression which distinguishes or identifies products or services of a particular inventor from the similar products or services of others.

Copyright: A copyright gives the creator of an original work exclusive rights for a limited time period. 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. In this case a novel written by an author or film directed and produced is an exclusive copyright. Nobody is authorised to quote or translate any part of the novel or the film without prior permission.

Patent: A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing 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 and generally has to fulfil three main requirements: it has to be new or novel, not obvious and there needs to be an industrial applicability. Initially, an idea can also be patented and further realised into a product or an application.

Industrial Design Right: An industrial design right (sometimes called ‘design right’) protects the visual design of an object that is 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 two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. Usually dies, moulds, jigs, fixtures or the process of machining, weaving a fabric etc are covered under this catageory.

Geographical Indications: GI is a name or sign used on certain products which correspond to a specific geographical location or origin (eg a town, region, or country). The use of a geographical indication may act as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin.

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. Coca-cola is the best example.

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.

Plant Varieties: The plant breeders’ rights or plant variety rights are the rights to commercially use a new variety of a plant. The variety must amongst others be novel and distinct and for registration the evaluation of propagating material of the variety is examined. There are also more specialised or derived varieties of sui generis exclusive rights, such as circuit design rights (mask work rights in the US), supplementary protection certificates for pharmaceutical products (protection after expiry of a patent) and database rights (European law).

Trademark

Trademark (TM) is a distinctive visible sign in two or three dimensions. An expression, which identifies goods and services of a particular source, comprises of visible elements like name, surname, word, phrase, logo, symbol, color, design, image, numerals, abbrevation, hologram or any combination of them. Some TMs also have an invisible element, sound or fragrance. TM may be owned by an individual, business organisation or any legal entity. Usually located on the external packaging of the product, in some cases embossed on the product itself, TM is displayed in the interior's, on the exterior's or within the premises of the organisation.

The manufacturer's of goods use trademark to identify their product's, whereas a Service Mark (SM) is used to identify the service's rendered by the advertising, insuring, telecommunicating and other service providers.

According to the NICE Classification, goods are distinguished by trademarks (TM) and service's rendered by service marks (SM). The goods are classified through 34 classes depending on the purpose or function and the type of services or activities rendered are classified through 11 classes. For example, the TM is granted to the manufacturer's of musical instruments and their accessories for products like mechanical pianos, synthesizers, etc identified under class 15, whereas the SM is granted to the service provider's of telecommunications under class 38 of the Nice Classification.

The marks associated with compliance of quality standards are Certification Marks, ie, electrical components or printed circuit boards used in power circuits, woven garments, white goods, etc. Collective Marks are used to distinguish members associated with products and/or services of insurance (agents), law (advocates), accounts (chartered accountants), architecture (architects), etc.

Geographical Indication (GI) and Appellation of Origin (AO) are specific trademarks granted for a link between the produce and the place of production or possessing a quality of repute due to geographical origin. The GI or AO tag can be a collective mark or a certification mark belonging to the producers of a product complying to certain specific conditions of production or origin defined for the geographical area, eg Pashmina Shawl (India), Roquefort Cheese (France).

Domain Name (DN) is a form of TM and a matter of repute. DN is a user friendly form of internet address associated with a business or service of significance. Domain Name System (DNS) comprises of DN and Internet Protocol (IP) address.

The Generic Top Level Domain (gTLD) names comprise of .net, .com, .org, .int, .gov, .edu or .mil, e.g. www.wipo.int (World Intellectual Property Organization, an international treaty organization). The Country Code Top Level Domain (ccTLD) name comprises of two letter country code, eg www.ipindia.nic.in (Intellectual Property Office, India).

A TM, SM, GI, AO, Certification or Collective Mark (*Mark) is registered with the concerned Patent and Trademark Office where the applicant/s have sought registration for use in the respective country or geographical area. The Madrid System facilitates international registration and protection of a *mark through a single application filed through the national or regional patent and trademark office.

A *mark is a valuble intellectual property involving creativity and investment. A distinguishing element in differentiating goods and services associated with it. Unauthorised use of any mark or domain name is brand piracy and dilution of compliance of products or services which do not compete or have no connection with the original products or services. In many countries the usage of National Flags and Emblems as a mark is forbidden.

Parimal Kowtal is visiting faculty (IPR) in Department of Electronic Science, Savitribai Phule Pune University, Pune