Unit I IPR & International Perspectives PL03ELCBL23

Name of the Subject: Law of Industrial & Intellectual Property-I

Course: LL.M. (Business Law)
Year & Semester: 1st Year, 1st Semester
Name of Faculty: Mr. Gururaj D. Devarhubli
Designation: Assistant Professor of Law
Name of College: Anand College of Legal Studies
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UNIT 1: IPR & INTERNATIONAL PERSPECTIVES

1.1 Introduction
Intellectual Property, as a creation of the human intellect, is found almost everywhere – in creative works like books, films, records, music, art and
software, and in everyday objects like cars, computers, drugs and new varieties of plants. The distinctive signs and features, like trademarks and
designs, which help us choose the products we buy, can be protected by the IP system. Even the place of origin of a product can have rights
attached to it, as is the case with Champagne and Gorgonzola. Much of what we see and use on the Internet, be it a web page or a domain name,
also includes or represents some form of IP.
In today‘s world, the IPR system plays a vital role in the economic growth strategies of countries in all stages of development worldwide. The IPR
system helps to spur innovation and create a relationship of trust, both of which are crucial for creating and delivering better goods and services to
users and consumers. By fostering fair play in the marketplace, the IPR system benefits users, consumers and society at large by supporting the
creation of innovative, new and improved products and knowledge that improves the quality of life of peoples worldwide.
In this unit we will discuss about the concept, definition, nature, types of IPR and IPR laws in India. We will also discuss about the international
perspectives of IPR such as WTO and TRIPS. Further, we will also discuss the issues of public health pertaining to IPR.
1.2 Intellectual Property Rights (IPR) Laws in India
1.2.1 What is an IPR?
The term intellectual property includes, in the broadest sense, all rights resulting from intellectual activity in the industrial, scientifically, literary,
or artistic fields. The conventions establishing the WIPO defines ‘Intellectual Property’ in a broad sense. But the term Intellectual Property was
defined first time in Paris Convention. Intellectual Property is derived from the term Industrial Property which includes trademarks, design marks,
service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair
competition. The main objectives of Paris Convention provides that ―the protection of industrial property like patents, utility models, industrial
designs, trademarks, service marks and the repression of unfair competition‖. But in the WIPO defines it broadly and intellectual property shall
include the right relating to:
 Literary, artistic and scientific works;
 Performance of performing artists;
 Inventions in all fields of human endeavor;
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 Scientific discoveries;
 Industrial designs;
 Trademarks, service marks and etc;
 Protection against unfair competition.
This definition although inclusive in nature, is very comprehensive. As we know that the intellectual property is intangible. It is a new form of
property which got greater recognition only in the 18 th century. The Intellectual Property is a property in mental labour as distinguished from
physical labour. Therefore, the Intellectual Property is to be understood as a result of mental labour in contradistinction with purely physical labour.
It is mostly intangible in nature.
Intellectual property rights have gained at most importance in the modern world. The concept of intellectual property rights as developed in India
cannot be divorced from the developments in the international arena as well as in the nation-to-nation relations. Intellectual Property Rights are
legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights safeguard creators and other
producers of intellectual goods & services by granting them certain time- limited rights to control their use. Protected IP rights like other property
can be a matter of trade, which can be owned, sold or bought. These are intangible and non-exhausted consumption.
1.2.2 Nature of Intellectual Property Rights
Some see IP rights principally as economic or commercial rights, and others as akin to political or human rights. The TRIPS agreement treats them
in the former sense, while recognizing the need to strike a balance between the rights of inventors and creators to protection, and the rights of users
of technology (Article 7 of TRIPS). The Universal Declaration of Human Rights has a broader definition recognizing ―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‖, balanced by ―the right…to
share in scientific advancement and its benefits.‖ The crucial issue is to reconcile the public interest in accessing new knowledge and the products
of new knowledge, with the public interest in stimulating invention and creation which produces the new knowledge and products on which
material and cultural progress may depend.
The difficulty is that the IP system seeks to achieve this reconciliation by conferring a private right, and private material benefits. Thus the right
to the protection of ―moral and material interests‖ of ―authors‖ is inextricably bound up with the right to the private material benefits which
result from such protection. And the private benefit to the creator or inventor is derived at the expense of the consumer. Particularly where the
consumer is poor, this may conflict with basic human rights, for example, the right to life. And the IP system, as manifested in TRIPS, does not
allow – except in rather narrow ways - discrimination between goods essential to life or education, and other goods such as films or fast food.
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We therefore consider that an IP right is best viewed as one of the means by which nations and societies can help to promote the fulfillment of
human economic and social rights. In particular, there are no circumstances in which the most fundamental human rights should be subordinated
to the requirements of IP protection. IP rights are granted by states for limited times (at least in the case of patents and copyrights) whereas human
rights are inalienable and universal.
For the most part IP rights are nowadays generally treated as economic and commercial rights, as is the case in TRIPS, and are more often held by
companies rather than individual inventors. But describing them as
―rights should not be allowed to conceal the very real dilemmas raised by their application in developing countries, where the extra costs they
impose may be at the expense of the essential prerequisites of life for poor people.
Regardless of the term used for them, we prefer to regard IPRs as instruments of public policy which confer economic privileges on individuals
or institutions solely for the purposes of contributing to the greater public good. The privilege is therefore a means to an end, not an end in itself.
Thus in terms of assessing the value of IP protection, it may be compared to taxation. Hardly anybody claims that the more taxation there is the
better. However, there is a tendency among some to treat more IP protection as self-evidently a good thing. More taxation might be desirable if it
delivers public services that society values more than the direct and indirect cost of taxation. But less can also be beneficial, for instance if excessive
taxation is harming economic growth. Moreover, economists and politicians spend much time considering whether the structure of the tax system
is optimal. Are heavy social security taxes harming employment? Are particular tax breaks serving their intended purpose, or merely subsidizing
their recipients to do what they are already doing? Is the effect of the tax system on the distribution of income desirable from a social point of
view?
We think there are very analogous questions for intellectual property. How much of it is a good thing? How should it be structured? How does the
optimal structure vary with sectors and levels of development? Moreover, even if we get the level and structure of protection right, to balance the
incentive to invention and creation against the costs to society, we also have to worry about the distribution of gains.
IPR are largely territorial rights except copyright, which is global in nature in the sense that it is immediately available in all the members of the
Berne Convention. These rights are awarded by the State and are monopoly rights implying that no one can use these rights without the consent
of the right holder. It is important to know that these rights have to be renewed from time to time for keeping them in force except in case of
copyright and trade secrets. IPR have fixed term except trademark and geographical indications, which can have indefinite life provided these are
renewed after a stipulated time specified in the law by paying official fees. Trade secrets also have an infinite life but they don‘t have to be renewed.
IPR can be assigned, gifted, sold and licensed like any other property. Unlike other moveable and immoveable properties, these rights can be
simultaneously held in many countries at the same time. IPR can be held only by legal entities i.e., who have the right to sell and purchase property.
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In other words, an institution, which is not autonomous may not in a position to own an intellectual property. These rights especially, patents,
copyrights, industrial designs, IC layout design and trade secrets are associated with something new or original and therefore, what is known in
public domain cannot be protected through the rights mentioned above. Improvements and modifications made over known things can be protected.
It would however, be possible to utilize geographical indications for protecting some agriculture and traditional products.
1.2.3 Types of IPRs
Intellectual property rights as a collective term includes the following independent IP rights which can be collectively used for protecting different
aspects of an inventive work for multiple protection:-

 Patents
 Copyrights
 Trademarks
 Registered (industrial) design
 Protection of IC layout design,
 Geographical indications, and
 Protection of undisclosed information
1.2.3.1 Patents
A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the
invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, manufacture or market the
invention without the consent of the patent holder. This right is available for a limited period of time. In spite of the ownership of the rights, the
use or exploitation of the rights by the owner of the patent may not be possible due to other laws of the country which has awarded the patent.
These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law
is a property right and hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the State, it can be revoked by the
State under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime. The patent right
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is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary
fees, for obtaining patents in those countries. A new chemical process or a drug molecule or an electronic circuit or a new surgical instrument or
a vaccine is a patentable subject matter provided all the stipulations of the law are satisfied.
The Indian Patent Act
The first Indian patent laws were first promulgated in 1856. These were modified from time to time. New patent laws were made after the
independence in the form of the Indian Patent Act 1970. The Act has now been radically amended to become fully compliant with the provisions
of TRIPS. The most recent amendment was made in 2005 which were preceded by the amendments in 2000 and 2003. While the process of
bringing out amendments was going on, India became a member of the Paris Convention, Patent Cooperation Treaty and Budapest Treaty. The
salient and important features of the amended Act are explained here.
Definition of invention
A clear definition has now been provided for an invention, which makes it at par with definitions followed by most countries. Invention means a
new product or process involving an inventive step and capable of industrial application. New invention means any invention or technology which
has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent
application with complete specification i.e., the subject matter has not fallen in public domain or it does not form part of the state of the art.
Inventive step means a feature of an invention that involves technical advance as compared to existing knowledge or having economic significance
or both and that makes the invention not obvious to a person skilled in the art. Capable of industrial application means that the invention is capable
of being made or used in an industry.
Novelty
An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals,
books, newspapers etc. constitutes the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty.
Novelty is assessed in a global context. An invention will cease to be novel if it has been disclosed in the public through any type of publications
anywhere in the world before filing a patent application in respect of the invention. Therefore it is advisable to file a patent application before
publishing a paper if there is a slight chance that the invention may be patentable. Prior use of the invention in the country of interest before the
filing date can also destroy the novelty.
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Novelty is determined through extensive literature and patent searches. It should be realized that patent search is essential and critical for
ascertaining novelty as most of the information reported in patent documents does not get published anywhere else. For an invention to be novel,
it need not be a major breakthrough. No invention is small or big. Modifications to the existing state of the art, process or product or both, can also
be candidates for patents provided these were not earlier known. In a chemical process, for example, use of new reactants, use of a catalyst, new
process conditions can lead to a patentable invention.
Inventiveness (Non-obviousness)
A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject
matter of the patent application. The prior art should not point towards the invention implying that the practitioner of the subject matter could not
have thought about the invention prior to filing of the patent application. Inventiveness cannot be decided on the material contained in unpublished
patents. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent. In other words a very simple
invention can qualify for a patent. If there is an inventive step between the proposed patent and the prior art at that point of time, then an invention
has taken place. A mere 'scintilla' of invention is sufficient to found a valid patent. It may be often difficult to establish the inventiveness, especially
in the area of up coming knowledge areas. The reason is that it would depend a great deal on the interpretative skills of the inventor and these
skills will really be a function of knowledge in the subject area.
Usefulness
An invention must possess utility for the grant of patent. No valid patent can be granted for an invention devoid of utility. The patent specification
should spell out various uses and manner of practicing them, even if considered obvious. If you are claiming a process, you need not describe the
use of the compound produced thereby. Nevertheless it would be safer to do so. But if you claim a compound without spelling out its utility, you
may be denied a patent.
Term of the patent
Term of the patent will be 20 years from the date of filing for all types of inventions.
1.2.3.2 Copyright
Copyright is a right, which is available for creating an original literary or dramatic or musical or artistic work. Cinematographic films including
sound track and video films and recordings on discs, tapes, perforated roll or other devices are covered by copyrights. Computer programs and
software are covered under literary works and are protected in India under copyrights. The Copyright Act, 1957 as amended in 1983, 1984, 1992,
1994 and 1999 governs the copyright protection in India. The total term of protection for literary work is the author’s life plus sixty years. For
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cinematographic films, records, photographs, posthumous publications, anonymous publication, works of government and internat ional agencies
the term is 60 years from the beginning of the calendar year following the year in which the work was published. For broadcasting, the term is 25
years from the beginning of the calendar year following the year in which the broadcast was made.
Copyright gives protection for the expression of an idea and not for the idea itself. For example, many authors write textbooks on physics covering
various aspects like mechanics, heat, optics etc. Even though these topics are covered in several books by different authors, each author will have
a copyright on the book written by him / her, provided the book is not a copy of some other book published earlier. India is a member of the Berne
Convention, an international treaty on copyright. Under this Convention, registration of copyright is not an essential requirement for protecting
the right. It would, therefore, mean that the copyright on a work created in India would be automatically and simultaneously protected through
copyright in all the member countries of the Berne Convention. The moment an original work is created, the creator starts enjoying the copyright.
However, an undisputable record of the date on which a work was created must be kept. When a work is published with the authority of the
copyright owner, a notice of copyright may be placed on publicly distributed copies. The use of copyright notice is optional for the protection of
literary and artistic works. It is, however, a good idea to incorporate a copyright notice. As violation of copyright is a cognizable offence, the
matter can be reported to a police station. It is advised that registration of copyright in India would help in establishing the ownership of the work.
The registration can be done at the Office of the Registrar of Copyrights in New Delhi. It is also to be noted that the work is open for public
inspection once the copyright is registered.
Computer program in the Copyright Act has been defined as a set of instructions expressed in words, codes, schemes or any other form, including
a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. It is obvious that algorithms,
source codes and object codes are covered in this definition. It is advisable to file a small extract of the computer program at the time of registration
rather than the full program. It is important to know that the part of the program that is not being filed would remain a trade secret of the owner
but would have to be kept well-guarded by the owner. It may be noted that computer programs will become important in the area of medicines
when one talks about codification of DNA and gene sequencing. Generally, all copyrightable expressions embodied in a computer program,
including screen displays, are protectable. However, unlike a computer program, which is a literary work, screen display is considered an artistic
work and therefore cannot be registered through the same application as that covering the computer program. A separate application giving
graphical representation of all copyrightable elements of the screen display is essential. In the digital era, copyright is assuming a new importance
as many works transacted through networks such as databases, multimedia work, music, information etc. are presently the subject matter of
copyright.
Coverage provided by copyright
(i) Literary, dramatic and musical work. Computer programs/software are covered within the definition of literary work.
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(ii) Artistic work

(iii) Cinematographic films, which include sound track and video films.
(iv) Recording on any disc, tape, perforated roll or other device.
Infringement of copyright
Copyright gives the creator of the work the right to reproduce the work, make copies, translate, adapt, sell or give on hire and communicate the
work to public. Any of these activities done without the consent of the author or his assignee is considered infringement of the copyright. There is
a provision of ‘fair use’ in the law, which allows copyrighted work to be used for teaching and research and development. In other words making
one photocopy of a book for teaching students may not be considered an infringement, but making many photocopies for commercial purposes
would be considered an infringement. There is one associated right with copyright, which is known as the ‗moral right‘, which cannot be transferred
and is not limited by the term. This right is enjoyed by the creator for avoiding obscene representation of his /her works. Following acts are
considered infringement of copyrights:-
(a) In the case of literary, dramatic or musical work, not being a computer program---
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematography film or sound recording in respect of the work;
(v) to make any translation of the work; to make any adaptation of the work;
(vi) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in Sub-
clauses (i) to (vi);
(b) in the case of computer program -
(i) to do any acts specified in clauses (a);
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(ii) to sell or give on hire, or offer for sale or hire any copy of t he computer program, regardless of whether such copy
has been sold or given on hire on earlier occasions;
(c ) in the case of an artistic work –
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in
two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematography film .
(v) to make any adaptation of the work;
(vi) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-
clauses (i) to (vi);
(d) in the case of a cinematography film -
(i) to make a copy of the film including a photograph of. any image forming part thereof;
(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier
occasions;
(iii) to communicate the film to the public; (e) in the case of sound recording -
(i) to make any other sound recording embodying it;
(ii)to sell or give on hire or offer for sale or hire, any copy of the ,sound recording, regardless of whether such copy has been sold or given
on hire on earlier occasions;
(iii) to communicate the sound recording to the public;
Explanation –
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For the purpose of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.
Transfer of copyright
The owner of the copyright in an existing work or prospective owner of the copyright in a future work may assign to any person the copyright,
either wholly or partially in the following manner.
i. for the entire world or for a specific country or territory; or
ii. for the full term of copyright or part thereof ; or
iii. relating to all the rights comprising the copyright or only part of such rights.
1.2.3.3 Industrial Designs
We see so many varieties and brands of the same product (e.g. car, television, personal computer, a piece of furniture etc.) in the market, which
look quite different from each other. If the products have similar functional features or have comparable price tags, the eye appeal or visual design
of a product determines the choice. Even if the similarities are not close, a person may decide to go for a more expensive item because that item
has a better look or colour scheme.
What is being said is that the external design or colour scheme or ornamentation of a product plays a key role in determining the market
acceptability of the product over other similar products. If you have a good design that gives you an advantage, then you must have a system to
protect its features otherwise there would be wide scale imitation.
Design as per the Indian Act means the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article
- whether in two dimensional or three dimensional or in both forms - by any industrial process or means, whether manual, mechanical or chemical,
separate or combined, which in the finished article appeal to and are judged solely by the eye; but it does not include any mode or principle of
construction or anything which is in substance a mere mechanical device. In this context an article means any article of manufacture and any
substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately. Stamps,
labels, tokens, cards, etc cannot be considered an article for the purpose of registration of design because once the alleged design i.e., ornamentation
is removed only a piece of paper, metal or like material remains and the article referred to ceases to exist. An article must have its existence
independent of the designs applied to it. So, the design as applied to an article should be integral with the article itself.
The essential requirements for the registration of design
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1. The design should be new or original, not previously published or used in any country before the date of application
for registration. The novelty may reside in the application of a known shape or pattern to a new subject matter.
However, if the design for which the application is made does not involve any real mental activity for conception,
then registration may not be considered.
2. The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an
article. Thus, designs of industrial plans, layouts and installations are not registrable under the Act.
3. The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic
nature such as painting, sculptures and the like which are not produced in bulk by any industrial process are excluded
from registration under the Act.
4. The features of the designs in the finished article should appeal to and are judged solely by the eye. This implies that
the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the
inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open
state, as those articles are generally put in the market in the closed state.
5. Any mode or principle of construction or operation or any thing, which is in substance a mere mechanical device,
would not be a registrable design. For instance, a key having its novelty only in the shape of its corrugation or bend
at the portion intended to engage with levers inside the lock it is associated with, cannot be registered as a design
under the Act. However, when any design suggests any mode or principle of construction or mechanical or other
action of a mechanism, a suitable disclaimer in respect thereof is required to be inserted on its representation, provided
there are other registrable features in the design.
6. The design should not include any trademark or property mark or artistic works.
7. It should be significantly distinguishable from known designs or combination of known designs.
8. It should not comprise or contain scandalous or obscene matter.
Duration of the registration of a design
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The total term of a registered design is 15 years. Initially the right is granted for a period of 10 years, which can be extended, by another 5 years
by making an application and by paying a fee of Rs. 2000/- to the Controller before the expiry of initial 10 years period. The proprietor of design
may make the application for such extension even as soon as the design is registered.
1.2.3.4 Trademarks
A trademark is a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise.
Trademarks may be one or combination of words, letters, and numerals. They may also consist of drawings, symbols, three dimensional signs such
as shape and packaging of goods, or colours used as distinguishing feature. Collective marks are owned by an association whose members use
them to identify themselves with a level of quality. Certification marks are given for compliance with defined standards. (Example ISO 9000.). A
trademark provides to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize others to use it
in return for some consideration (payment).
Well-known trademark in relation to any goods or services, means a mark which has become so to the substantial segment of the public which
uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating
a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first-
mentioned goods or services. Enactment of the Indian Trademarks Act 1999 is a big step forward from the Trade and Merchandise Marks Act
1958 and the Trademark Act 1940. The newly enacted Act has some features not present in the 1958 Act and these are:-
1. Registration of service marks, collective marks and certification trademarks.
2. Increasing the period of registration and renewal from 7 years to 10 years.
3. Allowing filing of single application for registration in more than one class.
4. Enhanced punishment for offences related to trademarks.
5. Exhaustive definitions for terms frequently used.
6. Simplified procedure for registration of registered users and enlarged scope of permitted use.
7. Constitution of an Appellate Board for speedy disposal of appeals and rectification applications which at
present lie before High Court.
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Well-known trademarks and associated trademarks

A well-known trademark in relation to any goods or services, means a mark which has become known to the substantial segment of the public that
uses such goods or receives such services. Associated Trademarks are, in commercial terms, marks that resemble each other and are owned by the
same owner, but are applied to the same type of goods or services. For example, a company dealing in readymade garments may use associated
marks for shirts, trousers etc. means trademarks deemed to be, or required to be, registered as associated trademarks under this Act.
Service marks
The Indian Act of 1958 did not have any reference to service marks. Service means service of any description that is made available to potential
users and includes the provision of services in connection with the business of industrial or commercial matters such as banking, communication,
education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy,
boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising. Marks used to represent
such services are known as service marks.
Certification Trademarks and Collective Marks
A certification trade mark means a guarantee mark which indicates that the goods to which it is applied are of a certain quality or are manufactured
in a particular way or come from a certain region or use some specific material or maintain a certain level of accuracy. The goods must originate
from a certain region rather from a particular trader. Certification marks are also applicable to services and the same parameters will have to be
satisfied. Further these marks are registrable just like any other trademark. Agmark used in India for various food items is a kind of certification
mark although it is not registered as a certification mark; the concept of certification mark was not in vogue at the time of introduction of Agmark.
A collective mark means a trademark distinguishing from those of others, the goods or services of members of an association of persons (not being
a partnership within the meaning of the Indian Partnership Act, 1932), which is the proprietor of the mark.
Term of a registered trademark
The initial registration of a trademark shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment
of the renewal fees.
1.2.3.5 Protection of Geographical Indications
Indications which identify a good as originating in the territory of a member or a region or a locality in that territory, where a given quality
reputation or other characteristics of the good is attributable to its geographical origin. The concept of identifying GI and protecting them is a new
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concept in India, perhaps in most developing countries, and has come to knowledge in these countries after they signed the TRIPS Agreement. It
may be noted that properly protected GI will give protection in domestic and international market. Stipulations of TRIPS would be applicable to
all the member countries. According to TRIPS, GI which is not or cease to be protected in its country of origin or which has fallen into disuse in
that country cannot be protected.
Homonymous GI for wines will get independent protection. Each state shall determine conditions under which homonymous indicat ions will be
differentiated from each other. Principles of national treatment and fair competition are applicable. TRIPS provide for seizure of goods bearing
false indications of GI. TRIPS provide for refusal or invalidation of registration of a trademark containing a GI with respect to goods not originating
in the territory indicated. The Geographical Indication of Goods (Registration and Protection) Act came into being in 2000. (The Act is not
implemented at the time of writing the article as the rules have not been notified.)
The term GI has been defined as "Geographical Indications", 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 characteristics 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.
Applicants for GI's registration
Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing
the interest of the producers of the concerned goods, who are desirous of registering geographical indication in relation to such goods shall apply
in writing to the Registrar in such' form and in such manner and accompanied by such fees as may be prescribed for the registration of the
geographical indication.
Non-registrable geographical indications
Geographical indications having following cannot be registered:
 the use of which would be likely to deceive or cause confusion or contrary to any law.
 which comprises or contains scandalous or obscene matter or any matter likely to hurt religion susceptibility
of any class or section of citizens of India.
 which would other wise be disentitled to protection in a court.
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 which are determined to be generic names or indications of goods and are, therefore, not or ceased to be
protected in their country of origin or which have fallen into disuse in that Country.
 which, although literally true as to the territory, region or locality in which the goods originate, but falsely
represent to the persons that the i goods originate in another territory, region or locality, as the case may be.
Punishment for falsifying GI
A sentence of imprisonment for a term between six months to three years and a fine between fifty thousand rupees and two lakh rupees is provided
in the Act. The court may reduce the punishment under special circumstances.
Term of GI protection
The registration of a GI shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal
fees.
1.2.3.6 Protection of Integrated Circuits Layout Designs (IC)
It provides protection for semiconductor IC layout designs. India has now in place Semiconductor Integrated Circuits Layout Design Act, 2000 to
give protection to IC layout design. Layout design includes a layout of transistors and other circuitry elements and includes lead wires connecting
such elements and expressed in any manner in a semiconductor IC. Semiconductor IC is a product having transistors and other circuitry elements,
which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform
an electronic circuitry function. The term of the registration is 10 years from the date of filing.
An IC layout design cannot be registered if it is
 Not original
 Commercially exploited anywhere in India or in a convention country;
 Inherently not distinctive
 Inherently not capable of being distinguishable from any other registered layout design.
Note: Design not exploited commercially for more than 2 years from date of registration of application shall be treated as commercially exploited
for the purpose of this Act, reproducing, importing, selling; distributing the IC layout design for commercial purposes only constitutes
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infringement. A person when creates another layout design on the basis of scientific evaluation of a registered layout design shall not be causing
any infringement.
1.2.3.7 Protection of Undisclosed Information
The protected subject matter is information lawfully within the control of a natural person or legal person that is secret that has commercial value
because it is secret and that has been subject to reasonable steps by the person lawfully in control of the information, to keep it secret. Secret is
defined as ―secret in the sense that it is not, as a body or in the precise configuration and assembly of its components known among or readily
accessible to persons within the circles that normally deal with the kind of information in question. Undisclosed information, generally known as
trade secret / confidential information, includes formula, pattern, compilation, programme, device, method, technique or process. Protection of
undisclosed information is least known to players of IPR and also least talked about, although it is perhaps the most important form of protection
for industries, R&D institutions and other agencies dealing with IPRs.
Protection of undisclosed information / trade secret is not really new to humanity; at every stage of development people have evolved methods to
keep important information secret, commonly by restricting the knowledge to their family members. Laws relating to all forms of IPR are at
different stages of implementation in India, but there is no separate and exclusive law for protecting undisclosed information / trade secret or
confidential information. The Contract Act of 1872 would however cover many aspects of trade secrets.
It is difficult to define the term in its entirety but, for an easy understanding, it may be said that a piece of undisclosed information or a trade secret
can be as simple an item as a company's customer list or as complex as a formula for a product or a process. Broadly speaking, the term would
encompass information, including a formula, pattern, compilation, program, device, method, technique or process that provides the owner with an
advantage over his business competitors who do not know or use it and is of significance or importance to the business of the company holding
the information. Expanding it further, it may include new product plans, product costing, best material to use, sources of materials, financial
standing of the business, accounting information, employee records, credit rating of customers, production information, manufacturing methods
and processes, business methods, blueprints, test data, research reports, professional pollsters, technical drawings and organizational structure,
specifications, process manuals, written instructions for operating the process and analytical means to check and control the product and processes,
details of workshop practice, technical training and personal visitation and inspection. On the software side it would include source code; the data
file structure, the structure sequence and organization of computer program. It may also include information relating to a patented invention not
included in the patent specification, inventions capable of being patented but not patented, inventions incapable of being patented in a particular
country because of the subject matter being excluded in the patent law of that country, inventions incapable of being patented by reason of lack of
inventiveness, industrial designs capable of being registered but not registered, industrial designs having functional characteristics and skills,
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experience and craftsmanship of technicians. The information can be intangible and invisible as well and can take myriad forms, and therefore,
any attempt to define it in an exhaustive manner would be practically meaningless.
A trade secret is a valuable piece of information with the essential requirement that the information be treated as such, i.e. as a secret. The value
of a trade secret resides in the fact that competitors or other interested parties do not have access to it. Therefore, a trade secret must be kept secret
so that no one could, with out the consent of the owner, acquire it. Trade secrecy is basically a do-it-yourself form of protection. You do not register
with the government to secure your trade secrets. The only way to acquire it without the consent of the owner would be through devious or unlawful
means. The owner has the exclusive right to use / exploit a trade secret as long as it remains a secret. As a result, theoretically speaking, the term
of a trade secret could be indeterminate or infinite. It is said that the trade secret of Coca-Cola still has not entered the public domain despite the
fact that the common ingredients of Coca- Cola are known. A chemical composition falling in this category need to be protected through a trade
secret rather than patent which is a publicly known document. It is usually said that the term of the trade secret relating to a machine tool is only
as long as the company keeps it internal secret. The moment the product is in the market, many people will know how to copy the product and the
moment the product is copied the trade secret associated with the copied aspects will no longer remain valid and secret, hence the protection will
be lost and the term of the protection will be over. By and large this would be true for design features but trade secret can be maintained about say,
composition of materials used and the process conditions adopted for manufacturing.
1.3 International Perspectives
Paris Convention, 1883
The Paris Convention applies to industrial property in the widest sense, including patents, trademarks, industrial designs, utility models (a kind of
"small-scale patent" provided for by the laws of some countries), service marks, trade names (designations under which an industrial or commercial
activity is carried out), geographical indications (indications of source and appellations of origin) and the repression of unfair competition.
The substantive provisions of the Convention fall into three main categories: national treatment, right of priority, common rules.
(1) Under the provisions on national treatment, the Convention provides that, as regards the protection of industrial property, each Contracting
State must grant the same protection to nationals of other Contracting States that it grants to its own nationals. Nationals of non-Contracting States
are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment
in a Contracting State.
(2) The Convention provides for the right of priority in the case of patents (and utility models where they exist), marks and industrial designs.
This right means that, on the basis of a regular first application filed in one of the Contracting States, the applicant may, within a certain period of
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time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other Contracting
States. These subsequent applications will be regarded as if they had been filed on the same day as the first application. In other words, they will
have priority (hence the expression "right of priority") over applications filed by others during the said period of time for the same invention, utility
model, mark or industrial design. Moreover, these subsequent applications, being based on the first application, will not be affected by any event
that takes place in the interval, such as the publication of an invention or the sale of articles bearing a mark or incorporating an industrial design.
One of the great practical advantages of this provision is that applicants seeking protection in several countries are not required to present all of
their applications at the same time but have 6 or 12 months to decide in which countries they wish to seek protection, and to organize with due
care the steps necessary for securing protection.
(3) The Convention lays down a few common rules that all Contracting States must follow. The most important are:
(a) Patents. Patents granted in different Contracting States for the same invention are independent of each other: the granting of a patent in one
Contracting State does not oblige other Contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any Contracting
State on the ground that it has been refused or annulled or has terminated in any other Contracting State.
The inventor has the right to be named as such in the patent.
The grant of a patent may not be refused, and a patent may not be invalidated, on the ground that the sale of the patented product, or of a product
obtained by means of the patented process, is subject to restrictions or limitations resulting from the domestic law.
Each Contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result
from the exclusive rights conferred by a patent may do so only under certain conditions. A compulsory license (a license not granted by the owner
of the patent but by a public authority of the State concerned), based on failure to work or insufficient working of the patented invention, may only
be granted pursuant to a request filed after three years from the grant of the patent or four years from the filing date of the patent application, and
it must be refused if the patentee gives legitimate reasons to justify this inaction. Furthermore, forfeiture of a patent may not be provided for,
except in cases where the grant of a compulsory license would not have been sufficient to prevent the abuse. In the latter case, proceedings for
forfeiture of a patent may be instituted, but only after the expiration of two years from the grant of the first compulsory license.
(b) Marks. The Paris Convention does not regulate the conditions for the filing and registration of marks which are determined in each
Contracting State by domestic law. Consequently, no application for the registration of a mark filed by a national of a Contracting State may be
refused, nor may a registration be invalidated, on the ground that filing, registration or renewal has not been effected in the country of origin.
The registration of a mark obtained in one Contracting State is independent of its possible registration in any other country, including the country
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of origin; consequently, the lapse or annulment of the registration of a mark in one Contracting State will not affect the validity of the registration
in other Contracting States.
Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in
the other Contracting States. Nevertheless, registration may be refused in well-defined cases, such as where the mark would infringe the acquired
rights of third parties; where it is devoid of distinctive character; where it is contrary to morality or public order; or where it is of such a nature as
to be liable to deceive the public.
If, in any Contracting State, the use of a registered mark is compulsory, the registration cannot be canceled for non-use until after a reasonable
period, and then only if the owner cannot justify this inaction.
Each Contracting State must refuse registration and prohibit the use of marks that constitute a reproduction, imitation or translation, liable to create
confusion, of a mark used for identical and similar goods and considered by the competent authority of that State to be well known in that
State and to already belong to a person entitled to the benefits of the Convention.
Each Contracting State must likewise refuse registration and prohibit the use of marks that consist of or contain, without authorization, armorial
bearings, State emblems and official signs and hallmarks of Contracting States, provided they have been communicated through the International
Bureau of WIPO. The same provisions apply to armorial bearings, flags, other emblems, abbreviations and names of certain intergovernmental
organizations.
Collective marks must be granted protection.
(c) Industrial Designs. Industrial designs must be protected in each Contracting State, and protection may not be forfeited on the ground that
articles incorporating the design are not manufactured in that State.
(d) Trade Names. Protection must be granted to trade names in each Contracting State without there being an obligation to file or register the
names.
(e) Indications of Source. Measures must be taken by each Contracting State against direct or indirect use of a false indication of the source of
goods or the identity of their producer, manufacturer or trader.
(f) Unfair competition. Each Contracting State must provide for effective protection against unfair competition.
The Paris Union, established by the Convention, has an Assembly and an Executive Committee. Every State that is a member of the Union and
has adhered to at least the administrative and final provisions of the Stockholm Act (1967) is a member of the Assembly. The members of the
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Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio. The establishment
of the biennial program and budget of the WIPO Secretariat – as far as the Paris Union is concerned – is the task of its Assembly.
The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at
Lisbon in 1958 and at Stockholm in 1967, and was amended in 1979.
The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.
Berne Convention, 1886
The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series
of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to
make use of them.
(1) The three basic principles are the following:
(a) Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in
such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals
(principle of "national treatment").
(b) Protection must not be conditional upon compliance with any formality (principle of "automatic" protection).
(c) Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection). If,
however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be
protected in the country of origin, protection may be denied once protection in the country of origin ceases.
(2) The minimum standards of protection relate to the works and rights to be protected, and to the duration of protection:
(a) As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its
expression" (Article 2(1) of the Convention).
(b) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive
rights of authorization:
 the right to translate,
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 the right to make adaptations and arrangements of the work,

 the right to perform in public dramatic, dramatico-musical and musical works,
 the right to recite literary works in public,
 the right to communicate to the public the performance of such works,
 the right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration
instead of a right of authorization),
 the right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain
special cases, reproduction without authorization, provided that the reproduction does not conflict with the normal
exploitation of the work and does not unreasonably prejudice the legitimate interests of the author; and the possibility that
a Contracting State may provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
 the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or
communicate to the public that audiovisual work.
The Convention also provides for "moral rights", that is, the right to claim authorship of the work and the right to object to any mutilation,
deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author's honor or reputation.
(c) As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author's death.
There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years
after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author's identity or if the author
discloses his or her identity during that period; in the latter case, the general rule applies. In the case of audio-visual (cinematographic) works, the
minimum term of protection is 50 years after the making available of the work to the public ("release") or – failing such an event – from the
creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work.
(3) The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used
without the authorization of the owner of the copyright, and without payment of compensation. These limitations are commonly referred to as
"free uses" of protected works, and are set forth in Articles 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of
illustration for teaching purposes), 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current
events) and 11bis(3) (ephemeral recordings for broadcasting purposes).
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(4) The Appendix to the Paris Act of the Convention also permits developing countries to implement non-voluntary licenses for translation and
reproduction of works in certain cases, in connection with educational activities. In these cases, the described use is allowed without the
authorization of the right holder, subject to the payment of remuneration to be fixed by the law.
The Berne Union has an Assembly and an Executive Committee. Every country that is a member of the Union and has adhered to at least the
administrative and final provisions of the Stockholm Act is a member of the Assembly. The members of the Executive Committee are elected from
among the members of the Union, except for Switzerland, which is a member ex officio.
The establishment of the biennial program and budget of the WIPO Secretariat – as far as the Berne Union is concerned – is the task of its
Assembly.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in
1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979.
The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO.
Universal Copyright Convention, 1952
The Universal Copyright Convention (UCC) came into effect in the year 1952. The Universal Copyright Convention adopted in Geneva,
Switzerland, is one of the two principal international conventions protecting copyright, the other being, the Berne Convention. The UCC was
developed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) as an alternative to the Berne Convention for those
states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.
Since almost all countries are either members orb prospective members of the World Trade Organisation (WTO), nad thus conform to the
Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the UCC has lost its significance.
Rome Convention, 1961
The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for
broadcasting organizations.
(1) Performers (actors, singers, musicians, dancers and those who perform literary or artistic works) are protected against certain acts to which
they have not consented, such as the broadcasting and communication to the public of a live performance; the fixation of the live performance; the
reproduction of the fixation if the original fixation was made without the performer's consent or if the reproduction was made for purposes different
from those for which consent was given.
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(2) Producers of phonograms have the right to authorize or prohibit the direct or indirect reproduction of their phonograms. In the Rome
Convention, “phonograms” means any exclusively aural fixation of sounds of a performance or of other sounds. Where a phonogram published
for commercial purposes gives rise to secondary uses (such as broadcasting or communication to the public in any form), a single equitable
remuneration must be paid by the user to the performers, to the producers of the phonograms, or to both. Contracting States are free, however, not
to apply this rule or to limit its application.
(3) Broadcasting organizations have the right to authorize or prohibit certain acts, namely the rebroadcasting of their broadcasts; the fixation of
their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made
in places accessible to the public against payment of an entrance fee.
The Rome Convention allows for limitations and exceptions to the above-mentioned rights in national laws as regards private use, use of short
excerpts in connection with reporting current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its
own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases where national law provides exceptions to
copyright in literary and artistic works. Furthermore, once a performer has consented to the incorporation of a performance in a visual or
audiovisual fixation, the provisions on performers' rights have no further application.
As to duration, protection must last at least until the end of a 20-year period computed from the end of the year in which (a) the fixation was
made, for phonograms and for performances incorporated therein; (b) the performance took place, for performances not incorporated in
phonograms; (c) the broadcast took place. However, national laws increasingly provide for a 50-year term of protection, at least for phonograms
and performances.
WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural
Organization (UNESCO), for the administration of the Rome Convention. These three organizations constitute the Secretariat of the
Intergovernmental Committee set up under the Convention consisting of the representatives of 12 Contracting States.
The Convention does not provide for the institution of a Union or budget. It establishes an Intergovernmental Committee composed of Contracting
States that considers questions concerning the Convention.
This Convention is open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal
Copyright Convention. Instruments of ratification or accession must be deposited with the Secretary-General of the United Nations. States may
make reservations with regard to the application of certain provisions.
World Trade Organisation (WTO)
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The World Trade Organisation (WTO) replaced the General Agreement on Tariffs and Trade (GATT) in the year 1995. GATT had come into
effect in the year 1947 which regulated the international trade. However, over the years the need for replacement of GATT was felt and WTO was
introduced.
The World Trade Organisation (WTO) is an international organization which intends to supervise and liberalize international trade amongst the
member States.
The organization deals with regulation of trade between participating countries by providing a framework for negotiating an formalizing trade
agreements and a dispute resolution process aimed at enforcing participant’s adherence to WTO Agreements, which are signed by representatives
of member governments and ratified by their Parliaments.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is based on and has adopted the provisions of Paris
Convention. Is is an international agreement administered by the World Trade Organization (WTO). In fact, TRIPS is one of the most useful and
effective global agreement of WTO. It provides minimum standards for many forms of intellectual property (IP) regulation as applied to nationals
of other WTO members. TRIPS require WTO members to provide copyright rights, covering content producers including performers, producers
of sound recordings and broadcasting organizations; geographical indications, industrial designs, integrated circuit layout-designs; patents; new
plant varieties’ trade marks’ and confidential information. TRIPS also includes enforcement procedures and dispute resolution procedures. India
is a member of TRIPS Agreement and therefore is bound to comply by the same.
The three main features of the TRIPS Agreement are:
 Standards: In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the
minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the
subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of
protection. The Agreement sets these standards by requiring, first, that the substantive obligations of the main conventions of the WIPO,
the Paris Convention and the Berne Convention in their most recent versions, must be complied with. With the exception of the
provisions of the Berne Convention on moral rights, all the main substantive provisions of these conventions are incorporated by
reference and thus become obligations under the TRIPS Agreement between TRIPS Member countries. The TRIPS Agreement is thus
sometimes referred to as a Berne and Paris-plus Agreement.
 Enforcement: The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual
property rights. The Agreement lays down certain general principles applicable to all IPR enforcement procedures. In addition, it
contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border
Unit I IPR & International Perspectives PL03ELCBL23

measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so
that right holders can effectively enforce their rights.
 Dispute settlement: The Agreement makes disputes between WTO Members in respect of the TRIPS obligations subject to the WTO’s
dispute settlement procedure.
In addition, the Agreement provides for certain basic principles, such as national and most-favoured nation treatment, and some general rules to
ensure that procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits that should flow from the Agreement.
The obligations under the Agreement will apply equally to all Member countries, but developing countries will have a longer period to phase them
in. Special transition arrangements operate in the situation where a developing country does not presently provide product patent protection in the
area of pharmaceuticals.
The TRIPS Agreement is a minimum standards agreement, which allows Members to provide more extensive protection of intellectual property
if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the Agreement within their own legal
system and practice.