Intellectual property refers to creations of the mind: Inventions, literary and artistic works, symbols, names, and images used in commerce. Intellectual property is divided into two categories:
- Industrial property includes patents for inventions, trademarks, industrial designs, and geographical indications.
- Copyright includes literary works (novels, poems, and plays), films, music, artistic works (such as drawings, paintings, photographs, and sculptures), and architectural designs. Rights associated with copyright also include the rights of performers in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.
Intellectual property rights are like any other property right. They allow creators or owners of patents, trademarks, or copyrighted works to profit from their own work or investment in a creation.
A patent is an exclusive right granted for an invention – a product or process that provides a new way to do something or provides a new technical solution to a problem. A patent offers its holders protection for their inventions. However, the protection is granted for a limited period, usually 20 years.
Patents provide incentives to individuals by recognising their creativity and offering the possibility of material reward for their marketable inventions. These incentives encourage innovation, which enhances the quality of human life.
Patent protection means that an invention may not be commercially manufactured, used, distributed, or sold without the patent owner’s consent. Patent rights are usually enforced by courts, which have the power to stop patent infringement in most systems. Conversely, a court may also invalidate a patent if it is successfully challenged by a third party.
A patent owner has the right to decide who may – or may not – use the patented invention during the protection period. Patent holders may grant permission or licences to other parties to use their creations on mutually agreed terms.
Patent owners can also sell their invention rights to another person, who then becomes the patent’s new owner. Once a patent expires, protection ends, and the invention becomes public domain. This means that the patent holder no longer has exclusive rights to the invention. Instead, it becomes available for commercial use by others.
Patented inventions have been intertwined into the fabric of human life, from electric lighting (patents by Edison and Swan) and sewing machines (patents by Howe and Singer) to magnetic resonance imaging (MRI) (patents by Damadian) and the iPhone (patents held by Apple).
In exchange for patent protection, all patent holders are required to publish information about their inventions to enrich the world’s total body of technical knowledge. This ever-growing body of public knowledge encourages further creativity and innovation. Patents, therefore, provide protection for their owners’ valuable information, which inspires future generations of researchers and inventors.
The first step in obtaining a patent is to file a patent application. The application usually contains the title of the invention and a statement of the technical field.
It must contain the background and a description of the invention, in plain language and in sufficient detail to enable a person having an average understanding of the field to use or reproduce the invention.
Such descriptions are usually accompanied by pictorial material – drawings, plans, or diagrams – that describe the invention in more detail. The application also contains various “claims,” i.e., information that helps determine the scope of protection afforded by the patent.
An invention must generally meet the following conditions to be protected by a patent. First, it must be of practical utility; it must have an element of “novelty,” a new feature that is not part of the existing knowledge in the technical field in question. This existing knowledge is referred to as “prior art”. Second, the invention must have an “inventive step” that could not be derived by a person with average knowledge in the technical field.
The subject matter of the invention must be recognised as “patentable” according to the law. In many countries, scientific theories, mathematical methods, plant or animal species, discoveries of natural products, commercial practices, or medical treatments (as opposed to medical products) are generally not patentable.
A trademark is a distinctive sign identifying specific goods or services produced or offered by a person or company. Its origin dates back to ancient times when craftsmen applied their signatures or “marks” to their artistic works or products of a functional or practical nature.
Over the years, these marks have evolved into today’s system of trademark registration and protection. The system helps consumers identify and purchase a product or service based on whether its specific characteristics and quality, as indicated by the unique mark, meet their needs.
Trademark protection ensures that the trademarks holders have the exclusive right to use them to identify goods or services or allow others to use them in exchange for payment. The duration of protection varies, but a trademark may be renewed indefinitely upon payment of the appropriate fees. Trademark protection is enforced by courts, which in most systems can stop trademark infringement. More broadly, trademarks promote initiative and entrepreneurship worldwide by bringing recognition and financial gain to their owners.
Trademark protection also hinders efforts by unfair competitors, such as counterfeiters, to use similar distinctive marks to market inferior or different products or services. The system enables people with skills and enterprise to produce and market goods and services under the fairest possible conditions, facilitating international trade.
First, an application for trademark registration must be filed with the appropriate national or regional trademark office. The application must clearly represent the sign for which registration is sought, including any colours, shapes, or three-dimensional features. It must also contain a list of the goods or services to which the sign is to apply. The mark must meet certain conditions to be protected as a trademark or other type of mark. It must be distinctive so that consumers can distinguish it from marks identifying other products and identifying a particular product. It must not mislead or deceive customers or be contrary to public policy or morality.
Finally, the rights sought must not be identical or similar to rights already granted to other trademark owners. This may be established by prefiling searches and examinations by national offices or by opposition from third parties claiming similar or identical rights.
Trademarks may consist of one or a combination of words, letters, and numerals. In addition, they may consist of drawings, symbols, or three-dimensional signs, such as the shape and packaging of goods. In some countries, non-traditional trademarks may also be registered for distinctive signs such as holograms, motion, colour, and non-visible signs (sound, smell, or taste).
In addition to identifying the commercial origin of goods or services, there are several other trademark categories. Collective marks are owned by an association whose members use them to identify products with a certain level of quality and agree to comply with specific requirements set by the association. Such associations may represent, for example, accountants, advocates, or architects. Certification marks are awarded for compliance with specific standards but are not tied to a particular membership.
Remember, conducting a pre-filing search is undoubtedly critical before making any financial, time, and effort investment to secure a trademark registration. It’ll save you from considerable expenses and headaches.
Almost all countries in the world register and protect trademarks. In addition, each national or regional office maintains a trademark register that contains complete application information on all registrations and renewals, facilitating examination, search, and possible opposition by third parties.
However, the effects of registration are limited to the country (or countries in the case of regional registration) in question. Therefore, WIPO administers an international trademark registration system to avoid filing separate applications with each national or regional office. This system is governed by the Madrid Agreement concerning the International Registration of Marks and the Madrid Protocol.
Persons having a connection (whether by nationality, residence, or establishment) with a country that is a party to one or both of the treaties may, based on registration or application filed with the trademark office of that country (or a related region), obtain an international registration having an effect in some or all of the other countries of the Madrid Union.
In India, the registration will be valid for 10 years from the date of the filing of the application. After this period, you can renew the trademark again. Renewal can be done indefinitely.
There is no requirement to apply for a trademark prior to using it. Trademark rights are granted to the first one who uses a mark in commerce on particular goods or services, not to those who are first to file with the exception of Intent-To-Use applications that ultimately mature into registrations.
An industrial design refers to the ornamental or aesthetic aspects of an item. A design may consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as a pattern, lining, or colour.
Industrial designs are applied to various industrial products and crafts: from technical and medical instruments to watches, jewellery, and other luxury items; from household goods and electrical appliances to vehicles and architectural structures; from textile designs to recreational items.
To be protected under most national laws, an industrial design or model must be new or original and not functional. This means that a design is primarily aesthetic, and any technical features of the article to which it is applied are not protected by design registration. However, these features could be protected by a patent.
Industrial designs make an item attractive and appealing; In other words, they contribute to the commercial value of a product and increase its marketability.
When a design is protected, the owner – the person or company that registered the design – is given an exclusive right and protection against unauthorised copying or imitation of the design by third parties.
This helps to ensure a reasonable return on investment. An effective protection system also benefits consumers and the public by promoting fair competition and honest trade practices, stimulating creativity, and encouraging more aesthetically pleasing products.
Industrial design protection contributes to economic development by encouraging creativity in industry and manufacturing and traditional arts and crafts. Designs contribute to the expansion of trade and the export of national products.
Design patent development and protection can be relatively inexpensive and straightforward. As a result, they are relatively accessible to small and medium-sized enterprises and individual artists and craftspeople in developed and developing countries.
A design must be registered to be protected under design law in most countries. To be registrable, the design must usually be “new” or “original.” Different definitions of these terms exist in each country, and the registration process itself varies.
In general, “new” means no known identical or very similar design that previously existed. Once a design is registered, a certificate of registration is issued. After that, the term of protection is usually five years, with the possibility of further renewal, in most cases for a period of up to 15 years.
A geographical indication is a sign used on goods that have a specific geographical origin and possess characteristics or a reputation attributable to that place of origin.
Most often, a geographical indication consists of the name of the product’s place of origin. Agricultural products usually have characteristics that derive from their place of production and are influenced by specific local geographic factors such as climate and soil. Whether a mark functions as a geographical indication is a matter of national law and consumer perception. Geographical indications can be used for various agricultural products, such as “Tuscany” for olive oil produced in a specific region of Italy or “Roquefort” for cheese made in that region of France.
The use of geographical indications is not limited to agricultural products. They can also highlight particular qualities of a product that are due to human factors in the product’s place of origin, such as specific production skills and traditions. The place of origin can be a village or town, a region or a country.
An example of the latter is “Switzerland” or “Swiss”, which many countries perceive as a geographical indication for products manufactured in Switzerland and especially for watches.
An appellation of origin is a particular type of geographical indication used for products with a specific quality that is exclusively or essentially due to the geographical environment in which the products are produced. The term geographical indication includes all designations of origin.
Examples of appellations of origin protected in states party to the Lisbon Agreement for the Protection of Appellations of Origin and their international registration are “Bordeaux” for wine from the Bordeaux region of France, “Prosciutto di Parma” – or Parma ham – for ham from the Italian province of Parma, or “Habana” for tobacco from the Havana region of Cuba.
When the name of a place is used to indicate a particular type of product rather than its place of origin, the term no longer functions as a geographical indication.
For example, “Dijon mustard,” a type of mustard that originated many years ago in the French city of Dijon, has come over time to refer to the mustard of this type produced in many places. Therefore, “Dijon mustard” is now a generic indication and refers to a kind of product rather than a place.
Geographical indications are protected by national laws and various concepts, such as laws against unfair competition, consumer protection laws, laws protecting certification marks, or specific laws protecting geographical indications or designations of origin.
Essentially, unauthorised persons may not use geographical indications if such use is likely to mislead the public as to the true origin of the product. Applicable sanctions range from court orders prohibiting unauthorised use to payment of damages and fines or, in severe cases, imprisonment.
Geographical indications are understood by consumers to indicate the origin and quality of products. As a result, many of them have acquired a valuable reputation that, if not adequately protected, can be misrepresented by commercial suppliers.
The misuse of GIs by unauthorised parties, e.g., “Darjeeling” for tea not grown in Darjeeling tea gardens, harms consumers and legitimate producers. The former are duped into believing that they are buying a genuine product with specific qualities and characteristics, and the latter are deprived of valuable business, and the reputation of their products is damaged.
A trademark is a sign used by a company to distinguish its goods and services from other manufacturers. It gives its owner the right to prevent others from using the mark.
A geographical indication guarantees to consumers that a product was produced in a specific place and has certain characteristics attributable to that place of production. It can be used by all producers who manufacture products with particular characteristics of the place designated by a geographical indication.
Copyright laws grant authors, artists, and other creators protection for their literary and artistic creations commonly referred to as “works.” An area closely related to copyright is “related rights,” which include similar or identical rights to copyright, although sometimes more limited and of shorter duration.
The beneficiaries of related rights are:
- performers (e.g., actors and musicians) in their performances by way of performance rights and image rights;
- Producers of phonograms (e.g. compact disks) for their sound recordings and broadcasters for their radio and television programs.
Works protected by copyright include novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreographies, paintings, drawings, photographs, sculptures, architecture, maps, and technical drawings.
Creators of copyrighted works and their heirs and successors (commonly referred to as “rights holders”) have certain basic rights under the Copyright Act.
They have the exclusive right to use the work or permit others to use it on agreed terms. The right holder(s) of work may authorise or prohibit the following:
- its reproduction in any form, including printing and sound recording
- its performance and communication to the public;
- its broadcasting, its translation into other languages; and
- its adaptation, e.g. of a novel into a screenplay for a film.
Similar rights, including fixation (recording) and reproduction, are granted under related rights.
Many types of works protected by copyright and related rights require mass distribution, communication, and financial investment for successful dissemination (e.g., publications, sound recordings, and films).
As a result, creators often assign these rights to companies that can better develop and market the works in exchange for compensation in the form of payments and/or royalties (compensation based on a percentage of the revenue generated by the work).
Copyright and related rights may be enforced by rights holders through various methods and forums, including civil actions, administrative remedies, and criminal prosecution. Methods used to implement these rights include injunctions, orders to destroy infringing items, and inspection orders.
The protection of copyright and related rights is essential for fostering human creativity and innovation. Moreover, giving authors, artists, and creators incentives in recognition and fair economic rewards increases their activity and output and improves outcomes.
When the existence and enforceability of rights are ensured, individuals and companies can more easily invest in the creation, development, and global distribution of their works. This, in turn, helps improve access to culture, knowledge, and entertainment worldwide and promotes economic and social development.
We now know What are Intellectual Property Rights and their types. Intellectual Property (IP) is an exclusive area for any business that needs to be handled from the start. Your Virtual Legal Counsel can help you protect your creative assets. YVLC will work with you as a partner to protect your company’s intellectual property. Schedule an appointment with YVLC to discuss your intellectual property protection strategy.