Author: Thanushree P S, a student at JSS Law College
Intellectual Property has emerged as an important discipline in the study of commercial laws. IP pertains to original creation of the human intellect such as artistic, literary, or scientific creation. The legal right granted to an inventor or creator to keep his creation or innovation confidential and to use it without disturbing his peaceful enjoyment for a predetermined amount of time is referred to as intellectual property rights, or IPR. Intellectual property is primarily governed by a system of rights and remedies, which is mostly consistent with conventional ideas of property. However, it has evolved into a flexible instrument that is impacted by the nature of technology, temporal aspects, territoriality, and, most significantly, public policy. There is no single definition of IP. However, the World Intellectual Property Organization constructs it as “the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields”.
The primary theme underpinning the intellectual property regime is protection of certain forms of innovation and creativity. Without intellectual property protection, creators face the risk of market failure due to free-riding of their innovations and creations and an eventual IPRs are the means of incentivizing innovation and creation as a form of protection against the risk of market failure.
Classification of IPR
Intellectual Property can be mainly classified as Industrial Property and Copyright. The reason for this differentiation can be traced back to history where copyright was associated with works of authorial creativity. As a form of intellectual property, copyright is considered to be an expression of the author’s own personality, and therefore, distinct from trade & commerce.
On the other hand, creativity expressed through technical innovations, industrial designs, names and marks distinguishing business entities, and marks signifying geographical origins of a product is related to trade & industry and that is why these forms of intellectual property are known as industrial property.
- Industrial Property
Industrial Property is the branch of intellectual property which deals with intangible intellectual creations related to industry, commerce and, agriculture. This industrial property consists of many intellectual properties such as:
- Patents
Patents safeguard an invention’s technological implementations. They are given for commercially viable inventions (profitable goods and procedures) in all technological domains that meet the triple requirements of novelty, innovative step, and industrial applicability.
A patent has a set duration of validity, often 20 years, and the person who owns the patent right, called the patentee, is free to use the patent or assign its use rights to third parties. The technical specifications of a patent must be disclosed by the applicant in the patent application in order for the invention to be granted.
2. Trademarks
Trademarks are visual representations which identify and distinguish the goods and services of an entity from those of another entity. One of the main functions of trademark is to facilitate association of a particular characteristic or quality to a specific product or service.
he main goal of trademarks is to prevent customer misunderstanding. They are first given for a set amount of time and are renewed indefinitely. The owner of a registered trademark, whether they are a business owner or the owner of property, has the right to use, transfer, and enforce their brand in addition to using the ® symbol in conjunction with it.
- Industrial Designs
The two- or three-dimensional ornamental or aesthetic elements of a product, such as shape, configuration, pattern, lines, or color, are referred to as industrial design. Owners of registered designs are protected against unauthorized use of their design and are also entitled to the exclusive use of their registered design. In India, design protection is granted for a set amount of time (10 years), after which it may be renewed for an additional 5 years.
- Geographical Indications
Geographical Indications are collective marks and signs that denote the geographical origins of a product when one or more characteristics or reputation of the product are attributable to its geographical origin. Unlike other IP rights, geographical indications do not belong to an individual entity and are considered to be belonging to an entire community of producers. An individual is allowed to obtain registration as authorized user of a Geographical Indication; subject to fulfillment of certain conditions. By complying certain procedures, a geographical indication enjoys protection for perpetuity.
- Layout-Design of Integrated Circuits
The sui-generis legislation in India to protect layout-designs is the Semiconductor Integrated Circuits Layout Design (SICLD) Act, 2000 which protects technical designs of semiconductor chips used in computers, smartphones, televisions, and other electrical or digital devices.
- Plant Varieties
This system protects new varieties of plants which fulfill the criteria of novelty, uniformity, stability, and distinctiveness. In India, the sui-generis legislation protecting new plant varieties is the Protection of Plant Varieties and Farmers’ Rights Act, 2001.
- Trade Secrets & Protection against Unfair Competition
Trade secrets are provided with protection without any procedural formalities as prerequisite for protection. Protection is provided to secret information which is commercially valuable to the owner and which has been subject to reasonable steps by the right holder to maintain its secrecy. Such protection is offered under the law of contract or through an action for breach of confidence in tort. Trade secrets are protected for an infinite period of time. Also, common law actions for misrepresentation and usurpation of goodwill are available against unfair competition and passing off. Test and regulatory data also receive protection in the form of data exclusivity for a specific time period. Non-original databases and personality rights are also protected in the same vein. While the inclusion of these actions and forms of protection within the ambit of intellectual property rights is largely disputed, for broad purposes we will consider them to be a part of intellectual property.
- Copyright & Neighboring Rights
Copyright protects literary and artistic works of authorial creativity. In addition to being an authorship-based right, it also safeguards creative works like radio broadcasts, sound recordings, motion pictures, and published editions of plays, songs, and novels. Works like books, novels, screenplays for movies, paintings, photos, tunes, sound recordings, audio recordings, moving pictures, source codes, and object codes are all covered by copyright protection.
In contrast to other forms of intellectual property, copyright protection is instantaneous and does not require registration. It is in place from the moment the work is created. Copyright registration is not required.
The owner of a copyright is free to use the work and provide permission to others to use it. For a little while, the work is also protected by copyright; after that, it enters public domain.
Neighboring rights refer to rights which are not directly connected to the authorship of the work, but to the work itself. These rights are provided to the performers such as musicians, jugglers, dancers, singers etc., producers of sound recordings, and broadcasting organizations for radio and television programs.
Intellectual Rights Infringement
Infringement of Intellectual Property Right of someone is the unauthorized use, distribution of such intangible property without the consent of its owner. It is the violation of the exclusive rights granted to the owner of the intellectual property. Such infringement can occur in various forms, for e.g., copying, displaying, distributing or selling others’ work. The consequences of such infringement will be severe like imprisonment or paying fine. The affected party can approach the Court filing Civil or Criminal case seeking injunction and damages.
Gujarat Cooperative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd.
Hindustan Unilever Limited, the company behind the well-known jam brand Kissan, filed a trademark infringement lawsuit against Gujarat Cooperative Milk Marketing Federation Ltd. (GCMMF), the company behind Amul, in 2018. According to Hindustan Unilever, GCMMF had introduced a new line of fruit jams under the brand name “Amul Kool Kreamz,” which bore similarities to Kissan’s fruit jam line in terms of trade dress, name, and packaging. Hindustan Unilever won the case because the court determined that GCMMF’s use of the name “Kool Kreamz” was likely to confuse customers and lessen the uniqueness of Kissan’s brand.
Conclusion
Assets are diverse in terms of size and form. However, some are not materially present. Intellectual property, sometimes known as intangible assets, is just as valuable to businesses as physical assets. Brand names and logos, which are patentable and trademarkable, aid in the recognition of well-known businesses and their goods by consumers. Because of this, it’s critical that businesses take the appropriate precautions to safeguard their assets to prevent exploitation or infringement by third parties.
