Beruflich Dokumente
Kultur Dokumente
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INTELLECTUAL PROPERTY RIGHTS
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INTELLECTUAL PROPERTY RIGHTS
INDEX
5 Patent 7
- Evolution 7
- Definition Of Patent 8
- Invention 9
- Invention Not Patentable 9
- Principles 10
- Kinds Of Patent 11
- Main Objects Of Patent 12
- Term Of Patent 12
- Rights Of Patent 13
- Application Of Patent 14
- Date Of Patent 14
- Infringement 14
- Exclusive Marketing Rights (EMR) 15
- Patent Co-Operation Treaty (PCT) 16
- Amendments 17
- Case Study 19
6 Trademark 20
- Legislation 20
- What Is Trademark 21
- Requirements Of Good Trademark 21
- Functions Of Trademark 22
- Types Of Trademark 22
- Benefits Of Trademark 23
- Registration Of Trademark 25
- Protection Of Trademark 26
- Criminal Proceedings 26
- Amendments 27
- Case Study 28
7 Brands 30
- Definition Of Brand 30
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9 Industrial Design 38
- Introduction 38
- Amendment 39
- Objectives 41
- Definition Of Design 42
- Features Of Design 43
- Essentials Of Design 44
- Registration Of Design 47
- Exclusions From Scope Of Design 48
- Infringement 48
- Case Studies 49
10 Geographical Indicators 52
- Introduction 52
- Who Is Producer 52
- Who Can Apply For Registration 53
- Registration Process 53
- Case Studies 55
11 Conclusion 59
12 Bibliography 62
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The modern IPR tool kit provides a range of distinct legal platforms for protection of the
fruits of human creativity that span from innovations in technical fields, products and
services, literary/artworks, performances, computer programs. It should be appreciated
that each of these instruments is governed by a set of laws with frameworks that offer
varying degrees of protection, rights, obligations, enforcement procedures and relief’s.
Therefore every nation interested in protecting intellectual property within its geopolitical
control has to enact laws related to patent, copyright, trademark, geographical indication
etc. For business and trade, Intellectual and Property Rights (IPR) act as key components
of strategy formulation that influence global business practices.
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PATENT
TRADEMARK
COPYRIGHT BRANDS &
LOGOS
INTELLECTUA
L PROPERTY
RIGHTS
GEOGRAPHICAL
INDICATORS DESIGN
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The World Trade Organization ("WTO") is the principle international body concerned
with solving trade problems between countries and with negotiating trade-liberalizing
agreements. The WTO takes the place of the former General Agreement on Tariffs &
Trade (GATT) and is the embodiment of the results of the 1986-1994 Uruguay Round
of trade negotiations concluded under GATT. The WTO was established on 1st
January 1995 and it encompasses previous GATT legal instruments, as they existed
when the Uruguay Round was completed. However, the WTO extends new disciplines
to economic and trade sectors not covered in the past. While the GATT was limited to
trade in goods, the WTO covers trade in services, including such sectors as banking,
insurance, transport, tourism and telecommunications sectors as well as the provision
of labour. In addition, the WTO covers all aspects of trade related intellectual property
rights. The WTO joins the International Monetary Fund (IMF) and the World Bank as
the third pillar of the global economic management system. In terms of governance,
the WTO’s principle one-member, one-vote makes it unique among multilateral
institutions. (Both IMF and World Bank operate a weighted voting system with voting
power depending on the amount of money contributed to the budget.) Despite this, in
the WTO, there is still a noticeable imbalance when it comes to the attentiveness with
which a country’s voice is heard. The WTO and the Agreements under it are treaties
concluded by member states and therefore forms part of international economic law as
opposed to international trade law.
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The TRIPS Agreement which is binding on all WTO members entered into
force on January 1, 1995. The Agreement is based on negotiations held during the
Uruguay Round of multilateral trade negotiations on aspects of intellectual property
rights which impacted an international trade. The Uruguay Round of negotiations was
concluded on December 15, 1993.The WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS), negotiated during the Uruguay Round,
introduced intellectual property rules for the first time into the multilateral trading
system. The Agreement, while recognizing that intellectual property rights (IPRs) are
private rights, establishes minimum standards of protection that each government has
to give to the intellectual property right in each of the WTO Member countries. The
Member countries are; however, free to provide higher standards of intellectual
property rights protection.
The Paris Convention (1967) for Industrial Patents and the Berne Convention
(1971) for Copyrights are the starting points of the TRIPS. Members are expected to
comply with these standards. Similarly the obligations under the Rome Convention
(1961) and the IPIC Treaty (1989) are also protected under TRIPS
1(a) Copyrights and related rights;
2(b) Trade marks;
3(c) Geographical Indications;
4(d) Industrial Designs;
5(e) Patents;
6(f) Layout designs of integrated circuits; and
7(g) Protection of undisclosed information (trade secrets).
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The WIPO Convention, the constituent instrument of the World Intellectual Property
Organization (WIPO), was signed at Stockholm on July 14, 1967, entered into force in
1970 and was amended in 1979. WIPO is an intergovernmental organization that became
in 1974 one of the specialized agencies of the United Nations system of organizations.
The origins of WIPO go back to 1883 and 1886 when the Paris Convention for the
Protection of Industrial Property and the Berne Convention for the Protection of Literary
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and Artistic Works, respectively, were concluded. Both Conventions provided for the
establishment of an “international bureau”. The two bureaus were united in 1893 and, in
1970, were replaced by the World Intellectual Property Organization, by virtue of the
WIPO Convention.
WIPO has two main objectives. The first is to promote the protection of intellectual
property worldwide. The second is to ensure administrative cooperation among the
intellectual property Unions established by the treaties that WIPO administers.
The WIPO, through its appropriate organs has the following functions:
1. To promote the development of measures designed to facilitate the efficient
protection of Intellectual Property Rights throughout the world to harmonize the
national legislation in this field;
2. To perform the administrative tasks of the Paris union, the Special Unions
established in relation with that union, and the Berne Union;
3. To encourage the conclusion of international agreements designed to promote the
protection of intellectual property;
4. To offer its cooperation to states requesting legal-technical assistance in the field
of intellectual property;
5. To assemble the and disseminate information concerning the protection of
intellectual property, carry out and promote studies in this field, and publish the
results of such studies; and
6. To maintain services facilitating the International Protection of Intellectual
Property and wherever appropriate, provide for registration in this field and the
publication of the data concerning the registrations etc. (Art. 4)
Membership of WIPO:
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The membership of WIPO is open to any state which is a member of any of the
Unions. Even if it is not a member of a Union, a nation can join WIPO if it is a
member of the United Nations or other specialized agencies, or if it is invited by the
General Assembly. Even the members of the International Atomic Energy agency and
parties to the statute of the International court of Justice are also entitled to the WIPO
membership.
PATENT
INTRODUCTION
In India, the national regime pertaining to patents is contained in Patents Act, 1970 as
amended time and again and the recent amendment was done by patents amendment act-
2006. This legislation has been enacted to amend and consolidate the law relating to
patents.
The object of patent law is to encourage scientific research, new technology and
industrial progress. Grant of exclusive privilege to own, use or sell the method or the
product patented for a limited period stimulates new inventions of commercial utility.
The price of the grant of the monopoly is the disclosure of the invention at the Patent
Office, which, after the expiry of the fixed period of the monopoly, passes into the public
domain.
The fundamental principle of the Patent Law is that a patent is granted only for an
invention, which must be new and useful. That is to say, it must have novelty and utility.
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It is essential for the validity of a patent that it must be the inventor’s own discovery as
opposed to mere verification of what was already known before the date of the patent.
The history of Patent regime in India is a history of legislative enactments. Even during
the British rule, in 1859, the ‘Act for granting exclusive privileges to inventors’ was
passed. The main aim of this act was to enable the English Patent holders to acquire
control over Indian markets.
The Patents and Designs Act, 1911 was a comprehensive legislation. It occupied the field
in India, till the passing of the Patent Act of 1970. After independence, the parliament
appointed two expert committees headed by Justice Bakshi Tek Chand and Justice
Rajagopala Iyengar. These committees found that the foreign multinational corporations
misused the patent laws in India, and they registered about 90 percent of patents
registered in India. This led to a thorough debate in Parliament and outside.
As a result, the Patents Act 1970 has been separately enacted separating from the Patents
And Design Act, 1911.
DEFINITION OF PATENT
Section 2 (1) (m) of the Patents Act,1970 defines patent as : "Patent" means a patent
granted under this Act and includes for the purposes of sections 44, 49, 50, 51, 52, 54, 55,
56, 57, 58, 63, 65, 66, 68, 69, 70, 78, 134, 140, 153, 154 and 156 and Chapters XVI,
XVII and XVIII, a patent granted under the Indian Patents and Designs Act, 1911 (2 of
1911)
The word patent originated from the Latin Word “Patene” which means, “to open”. It is a
legal document issued by the government to an inventor, his heirs, assigns, etc. It defines
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an “invention” and grants the right to prevent others from making, using, or selling the
invention in the country. The right exists for a definite period from the date of grant.
The patent is a license given to an inventor to make exclusive use of his invention. The
patent can be correctly defined as the exclusive right to use or exercise an invention
granted to a person for a limited period in consideration of the disclosure of the invention.
It is the protection assures by the state to use the invention in monopoly. The patent must
be in respect of Invention and not of a Discovery. The invention must be new, useful and
industrially applicable.
INVENTIONS
Section 2 (1) (j) of the Patents Act, 1970 defines invention:"Invention" means any new
and useful-
a) Art, process, method or manner of manufacture;
b) Machine, apparatus or other article;
c) Substance produced by manufacture.
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(d) The mere discovery of any new property or new use for a known substance or of
the mere use of a known process, machine or apparatus unless such known process
results in a new product or employs at least one new reactant;
(e) A substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance;
(f) The mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;
(g) A method or process of testing applicable during the process of manufacture for
rendering the machine, apparatus or other equipment more efficient or for the
improvement or restoration of the existing machine, apparatus or other equipment or for
the improvement or control of manufacture;
(h) A method of agriculture or horticulture;
(i) Any process for the medicinal, surgical, curative, prophylactic or other treatment of
human beings or any process for a similar treatment of animals or plants to render
them free of disease or to increase their economic value or that of their products.
Similarly, the Act clearly provides that inventions relating to Atomic energy are not
patentable (under section 4). Further in section 5 of the Act, the grant of a patent is
restricted in the following cases in the sense that only a process patent can be granted in
their respect:
Inventions where only methods or processes of manufacture patentable.
In the case of inventions-
(a) Claiming substances intended for use, or capable of being used, as food or as
medicine or drug, or
(b) Relating to substances prepared or produced by chemical processes (including
alloys, optical glass, semi-conductors and inter-metallic compounds),
No patent shall be granted in respect of claims for the substances themselves, but claims
for the methods or processes of manufacture shall be patentable.
PRINCIPLES:
Novelty
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Non-obviousness
Usefulness
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. Prior use of the
invention in the country of interest before the filing date can also destroy the novelty.
Novelty is determined through extensive literature and patent searches.
Non-obviousness
The invention must be non-obvious to a person skilled in the art to which the invention
relates.
Usefulness
An invention must possess utility for the grant of patent. No valid patent can be granted
for an invention devoid of utility.
Exceptions
Some inventions in spite of being new, non-obvious and useful cannot be patented under
the act. Such non-patentable inventions would be:
Injurious to public health or violates morality or public interest
New method s of agriculture or horticulture.
Process of treatment
KINDS OF PATENT
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PROCESS PATENT
Process patent means that when a substance is invented or produced, a patent is not
granted to the substance itself but it is only the method or the process of manufacturer of
a substance that is granted a patent. Therefore the patent is granted to process but not to
the product, in this kind of patent.
PRODUCT PATENT
In product patent, the patent is granted not to the method or process of manufacture of a
substance but to the substance itself. Therefore in this kind of patent, it is the product that
is covered and protected.
The invention for which patent is claimed may be a product or an article or a process. In
the case of an article, the patent is the end product or the article. In the case of a process,
the patent does not lie in the end product, but only in the process by which it is arrived in
Section 5 of the Patent Act, 1970. The entire scientific process is to be looked into before
granting the process.
A granted patent has a maximum term that is fixed by the statute. However, the patentee
has to pay renewal fee to maintain the patent rights in the country where the right was
obtained. Maintenance systems vary from country to country.
TERM OF PATENT
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(1) Subject to the provisions of this Act, the term of every patent granted under this
Act shall-
(b) In respect, of any other invention, be fourteen years from the date of the patent.
(2) A patent shall cease to have effect notwithstanding anything therein or in this Act
on the expiration of the period prescribed for the payment of any renewal fee, if that fee
is not paid within the prescribed period or within that period as extended under this
section.
(3) The period prescribed for the payment of any renewal fee shall be extended to such
period, not being more than six months longer than the prescribed period, as may be
specified in a request made to the Controller if the request is made and the renewal fee
and the prescribed additional fee paid before the expiration of the period so specified.
RIGHTS OF PATENTEES
(1) Subject to the other provisions contained in this Act, a patent granted before the
commencement of this Act, shall confer on the patentee the exclusive right by himself,
his agents or licensees to make, use, exercise, sell or distribute the invention in India.
(2) Subject to the other provisions contained in this Act and the conditions specified in
section 47, a patent granted after the commencement of this Act shall confer upon the
patentee-
(a) Where the patent is for an article or substance, the exclusive right by himself, his
agents or licensees to make, use, exercise, sell or distribute such article or substance in
India;
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a) Any person claiming to be the true and first inventor of the invention,
c) The legal representatives of any deceased person who could be either the first true
inventor or the assignee.
DATE OF PATENT
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Under section 45 of act, every patent should be dated as of date on which the complete
specification was filed. Therefore, the actual date will be backdated to the date of filing
the complete specification and it will not be the date of sealing.
INFRINGEMENT OF PATENTS
The Patents Act confers upon the patentee an exclusive right to use, make exercise, sell
or distribute the patented article or substance through him or through agents or licensees.
Any interference or violation of these rights means an infringement. The remedy in this
case is an injunction to restrain the future infringement and an action for recovery of the
damages caused or profit made using the patented substance or process as the case may
be. An action for infringement means enforcement of the patentee’s rights and many
times provoking counter claims for revocation of the patent. Actions can be taken by
filing a suit in District/High Court. The relief, which a court may grant, includes
injunctions (temporary or permanent) and at the option of the plaintiff, either damages or
an account of profit.
a) Injunction
b) Damages
c) An account of profits; or
e) Certificate of validity; or
f) Costs
The term EMR means the exclusive marketing rights to sell or distribute the article or
substance covered in a patent or patent application in the country. The purpose of EMRs
is to ensure that the innovator can market free copies of his product.
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The application for the grant of an EMR can be made for an invention relating to an
article or substance intended for use or capable of being used as a drug or medicine,
developed after 1.1.2005. The Act specifically debars grant of EMR to substance based
on traditional system of medicine. Upon getting the EMR, the applicant has the exclusive
right to sell or distribute the product of the invention for a period of five years from the
date of grant or till the date of grant or rejection of the application for patent, whichever
is earlier. The corresponding patent application would be taken up for examination after
1.1.2005, which is the time provided to India to bring a product patent regime in all the
fields of science and technology.
· Eli Lilly & Company, USA for erectile dysfunction medicine, Cialis (Tadalafil)
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AMENDMENTS
The amendment was largely concerned with a transitional period until TRIPs is
implemented. The Indian parliament implemented a mailbox for accepting product patent
applications, and Exclusive Marketing Rights, which gave protection akin to a product
patent for the 5 year transitional period.
Salient Features of The Patents (Amendment) Act, 2002 And The Patents Rules, 2003:
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• Now the request for examination can be made within 48 months from priority
date or from the international filing date, which ever is earlier etc. (It was 36
months earlier). The application for grant of patent should be put in order within
12 months from the date of issue of First Examination Report. (Earlier it was 6
months with a provision of extension up to three months). The fee may be paid
through electronic means.
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• The proof of the right to apply for the patent for invention can be furnished
within six months from the date of application (Earlier it was three months). The
information about name of other countries in which Patent application for same
or substantially invention filed or objections received (under Section 8) can be
furnished within six months (earlier it was three months).
• On request for early publication of application, the Controller shall ordinarily
publish application within one month.
• Request for examination can be made within forty eight months from the date of
priority or from date of application (international filing date), whichever is earlier
(It was earlier thirty six months.
After a long wait of 10 years on March 8, 2005 the European Patent Office rejected the
appeal filed by the Transnational Company to grant patent on use of Neem as fungicide.
European Patent Office had granted patent for the neem-based bio-pesticide for the use of
food crops. Due to strong opposition from India the patent was revoked in the year 2000.
Vandana Shiva who represented India put forward evidence to show that the use of Neem
in varied forms is part of Indian Traditional knowledge. She opined there was no novelty
in the so-called neem-fungicide. The neem derivatives have been in use traditionally as
insect soaps, cosmetics, and contraceptives. The appeal was rejected by European Patent
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Office on the ground that the technique used was well known to local farmers, lacked any
incentive step and that such indigenous knowledge could therefore not be Patented.
TRADEMARK
The Government of India has notified the Trade Marks Act 1999 on
15 September 2003, thereby repealing the old Trade and Merchandise Marks Act 1958.
The new Act brought into force statutory framework with respect to trademarks in
India in line with emerging worldwide trends as well as with India’s obligations under
the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
WHAT IS A TRADEMARK
A ‘Mark` may consist of a word or invented word, signature, device, letter, numeral,
brand, heading, label, name written in a particular style, the shape of goods other than
those for which a mark is proposed to be used, or any combination thereof or a
combination of colors and so forth. Subject to certain conditions, a trademark may also be
symbolized by the name of a person, living or dead.
FOR E.g.: One of the most famous Brand which Recognizes the Food Products.
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The "TM" or “SM” notation is merely a means of informing third parties that the person
claims trademark rights to the word, slogan, or phrase associated with ‘TM’ or ‘SM’
notation. The same can be used once the application is made for registration of a
Trademark. After the grant the symbol is used.
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FUNCTIONS OF TRADEMARKS:
E.g.: “HAMAM” identifies the soap originating from the company manufacturing the
soap.
2) It guarantees quality
E.g.: “HAMAM” Soap could be similar but different from the soap label with mark “:
LUX “
E.g.; the trademark “LG” is associated swiss electric items so the trademark ‘LG a/c’
of particular quality and particular class of goods. Thus it advertises the product while
distinguishing it from LG’s competitors.
TYPES OF TRADEMARKS:
Letter mark: mark includes a letter mark. The identity created by this letter mark is
unique and distinctive from others.
1) Symbol mark: These may take shape of brands or logos .A logo is a visual
depiction of a company and gives an identity to it.
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3) Label and Ticket: It means a mark having various features usually painted on a
paper and attached to the goods themselves. And a Ticket may be said to do a
label attached to goods by a string.
E.g.: Label attached to the readymade clothes, like Van Heusen shirts.
9) Device: It would refer to such a mark, which does not fall under any other
category already mentioned.
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BENEFITS OF A TRADEMARK:
Trademark registration protects the goodwill of a business and also helps to identify and
distinguish the source of the goods or services of one party from those of others.
Trademark registration is an evidence of ownership of the trademark and also
constructive notice nationwide are issued of the trademark owner's claim. Trademark
registration in India can also be used as a basis for obtaining registration in foreign
countries.
The Purchaser and ultimately Consumers of trade marks goods and services.
Any person, claiming to be the proprietor of a trade mark which is either used by him or
is proposed to be him, if he is desirous of registering it, may apply to Registrar of Trade
Mark in the prescribed manner, for the registration of his trade mark.
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DOCUMENTS REQUIRED:
REGISTRATION:
When an application for registration of a trademark has been accepted and
either
The application has not opposed and the time for notice of opposition has
acquired or;
Application has been opposed and the opposition has been decided in the
favour of applicant
The Registrar should be registered the said trade mark unless the Central
Government directs otherwise.
On the basis of “FIRST COME FIRST SERVE “it takes on an average about 5-6 years
before the mark is registered provided no opposition is entered by any third party.
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The Registrar, while deciding the application, has to keep himself aware abreast of
the following factors
Absolute grounds for refusal of registration
Limitation as to colour
Relative grounds for refusal of registration
Honest and concurrent use
Prohibition of registration of names of chemical elements etc.
Names and representations of living persons or persons who recently died etc.
At the prescribed time before the expiry of a trade mark the Registrar will send
notice to the registered proprietor by which a renewal of registration may be
obtained. If at the proprietor is not able to pay the fee then the Registrar may
remove the trademark from the register.
Where a trademark has been removed, after 6 months or within 1 year from the
expiry of the last registration, on payment of the prescribed fee the Registrar
restore the trade mark to the register and renew the registration of the trade mark.
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If the mark is a registrable one the best way to protect it is by registration. Infringement
of the mark can be easily established. If the infringing mark is identical and the goods
covered by registration, the success in an action for infringement is almost certain unless
the registration can be attacked on the ground of invalidity of registration or the
defendant could establish honest concurrent user on the part of the registered proprietor
or prior user.
In the case of unregistered marks and marks which are not registrable the only they can
be protected is by an action for passing of. The plaintiff will have to prove sufficient use
of the mark so as to create valuable goodwill of the business connected with the goods
bearing the mark.
CRIMINAL PROCEEDINGS.
Under the Trade Mark Act 1999, the individual or business firms who unauthorizedly
deal with the trademarks can be punished for various offences.
The punishment of these offences include a minimum imprisonment of 6 months and
minimum fine of Rs 50,000 / - which may extend to a maximum 3 years and Rs
2,00,000 /- respectively. On second or subsequent conviction sec 105 of ACT provides
Provision for enhanced penalty.
Major changes that have taken place in the Trade Marks Act, 1999 (in force since
15th Sept. 2003) which has replaced the earlier Trade & Merchandise Marks Act,
1958 (now repealed) includes the following:
It has enlarged the definition of trademark. It now includes shape of goods,
packaging and combination of colors, which can be adopted as a trademark.
The Act provides for registration of trade mark for services in addition to goods
It provides for a single Register of Trade Marks with simplified procedures for
registration.
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The Act has simplified the procedure for registration of registered user (licensing of
registered trade mark).
Provides for registration of collective marks owned by association of persons.
Provides for establishment of an Intellectual Property Appellate Board for speedy
disposal of appeal from Registrar orders and decision
Transferred the final authority for registration of certification of trade marks to the
Registrar.
Provides for enhanced punishment for the offences relating to trade marks on par
with the Copyright Act, 1957 to prevent the sale of spurious goods.
Prohibits use of someone else’s trademarks as part of corporate names or of business
concern.
Provides for filing of a single application for goods or services falling in more than
one class (multi class filing).
Increased the period of registration and renewal from 7 yrs to 10 yrs.
Has made some trade mark offences cognizable.
The Act has amplified the powers of the court to grant ex parte injunction in certain
cases.
There are other related amendments to simplify and streamline the administration of
the trade marks law and procedures in the country
CASE STUDY:
V/S
French clothing company Lacoste has won a key trademark infringement litigation in the
latest round of its long-running trademark battle in China.
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In October 2004, the Changsha Intermediate People's Court in Hunan province ruled that
a department store in the city must stop selling products, which infringe Lacoste's
crocodile mark and pay damages to Lacoste.
It was reported that after revealing a department store in the city sold leather bags, belts,
and briefcases with a crocodile device mark that was similar to its famous crocodile
mark, Lacoste initiated legal proceedings in the court against the store in August 17,
requesting for an injunction and damages.
The defendant argued that the crocodile on its products faced to the left, while Lacoste's
crocodile faced to the right. In addition, the store tried to argue that it would be exempted
from paying damages to the plaintiff because it had bought the goods from a Chinese
supplier who had, in turn, bought the goods from a manufacturer licensed by Crocodile
International, a Singapore company who had registered a crocodile device mark in China
with its head turning to the right. The store also requested the court to suspend the legal
proceedings due to other pending litigations between Lacoste and Crocodile International
in other courts.
The court ruled that ordinary consumers would pay attention to the image of crocodile
itself, and neglect the facing of the crocodile. The crocodile facing to the left was a mirror
image of crocodile facing to the right. They were confusingly similar.
The argument that the store would be exempted from paying damages to the plaintiff was
not accepted by the court. The court believed that the store must have known the
plaintiff's mark due to the popularity of the mark in China. The evidence proving that it
had obtained the goods from a legitimate channel was deemed insufficient.
The suspension request was also refused because the court was of the opinion that the
products in question and parties involved in this litigation and other litigations were
different.
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An injunction was granted and damages of RMB 5,000 ($600) were rendered.
The decision will be regarded as a valuable victory for Lacoste after it lost copyright
infringement litigation with Crocodile International earlier this year.
According to the trademark law, any person who sells goods that infringe the trademark
right of another person, without knowing the goods are infringing, shall not be liable to
pay damages to the trademark owner if he can prove that he obtains the goods from a
legitimate source and can identify the supplier
BRANDS
DEFINITION
As per the Marketing Concept, The Consumer is assumed as a “KING”. And the
main aim is to provide satisfaction to them.
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A brand often includes an explicit logo, fonts, color schemes, symbols, sound which
may be developed to represent implicit values, ideas, and even personality.
FEATURES OF BRAND:
1) It must be Unique, Distinctive and Original.
DAIRY MILK
3) It must inspire the feeling of trust and confidence among customers
EXAMPLES OF BRANDS :
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INTELLECTUAL PROPERTY RIGHTS
1) HYUNDAI MOTORS:
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INTELLECTUAL PROPERTY RIGHTS
COMPANY BRAND
NAME
MCDONALD’
S
One of the best brands
in food products.
CADBURY
One of the best brands
in chocolates.
RAYMOND
The oldest brand in
garment industry.
BMW
One of the best brands
in Automobile
Industry.
LOGOS
DEFINITION:
A logo is a graphic element, symbol, or icon of a trademark or brand and together with its
logotype, which is set in a unique typeface or arranged in a particular way. A typical logo
is designed to cause immediate recognition by the viewer. The logo is one aspect of the
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brand of a company or economic entity, and the shapes, colors, fonts and images are
usually different from others in a similar market. Logos may also be used to identify
organizations or other entities in non-economic contexts.
A logo is an iconic symbol designed to represent a company, organization, product,
service, and sometimes certain places.
In recent times the term 'logo' has been used to describe signs, emblems, coats of arms,
symbols and even flags. True logos may generally be contrasted with emblems, or
marks, which include non-textual graphics of some kind. Emblems with non-textual
content are considered one aspect of a complete logo.
The uniqueness of a logo is often necessary to avoid confusion in the marketplace among
clients, suppliers, users, affiliates, and the general public. To the extent that a logo
achieves this objective, it may function as a trademark, and may be used to uniquely
identify businesses, organizations, events, products or services. Once a logo is designed,
one of the most effective means for protecting it is through registration as a trademark, so
that no unauthorized third parties can use it, or interfere with the owner's use of it.
E.g.: The Coca-cola logo can be identified in any language because of the standards of
color and the iconic ribbon wave.
BRAND SLOGANS:
Sometimes a slogan is included in the logo. If the slogan appears always in the logo, and
in the same graphic shape, it can be considered as part of the logo. In this case it is a
brand slogan also called a claim, a tagline or an end line in the advertising industry. The
main purpose is to support the identity of the brand together with the logo. The difference
between a slogan and a brand slogan is that brand slogan remains the same for a long
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time to build up the brand's image, while different slogans link to each product or
advertising campaign.
Color:
Color is important to the brand recognition, but should not be an integral component to
the logo design, which would conflict with its functionality. Some colors are associated
with certain emotions that the designer wants to convey. For instance, loud colors, such
as red, that are meant to attract the attention of drivers on freeways are appropriate for
companies that require such attention.
For Eg :
In the United States red, white, and blue are often used in logos for companies
that want to project patriotic feelings.
Green is often associated with health foods,
Light blue or silver is often used to reflect diet foods.
Do not use face of a living person.
Avoid photography or complex imagery as it reduces the instant recognition a
logo demands. For other brands, more subdued tones and lower saturation can
communicate dependability, quality, relaxation, etc
LOGO DESIGN:
Logo design is commonly believed to be one of the most important areas in graphic
design, thus making it the most difficult to perfect. The logo, or brand, is not just an
image, it is the embodiment of an organization. Because logos are meant to represent
companies and foster recognition by consumers it is counterproductive to redesign logos
often.
When designing (or commissioning) a logo practices to encourage are to
To avoid over-the-top in an attempt to be unique.
Use few colors, or try to limit colors.
Avoid gradients (smooth colours) as a distinguishing feature.
Produce alternatives for different contexts.
Design using vector graphics, so the logo can be resized without loss of fidelity.
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INTELLECTUAL PROPERTY RIGHTS
Coca Cola's script is known the world over, but is best associated with the
color red; its main competitor, Pepsi has taken the color blue, although they have
abandoned their script logo.
IBM, also known as "Big Blue" has simplified their logo over the years,
and their name. What started as International Business Machines is now just
"IBM" and the color blue has been a signature in their unifying campaign as they
have moved to become an IT services company.
There are some other logos that must be mentioned when evaluating what the
mark means to the consumer. Automotive brands can be summed up simply with
their corporate logo- from the Chevrolet "Bow Tie" mark to the circle marks of
VW, Mercedes-Benz and BMW, to the interlocking "RR" of Rolls-Royce each
has stood for a brand and clearly differentiated the product line.
Logos can represent any organization or entity, not just corporations. Perhaps the most
recognizable and possibly the oldest of these is the emblem of the Olympic Games: the
Olympic Rings, five interlocking rings (blue, yellow, black, green, and red respectively)
on a white field.
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COMPANY LOGO
NAME
MONSTER.
COM
AIRTEL
COCA-COLA
CASE STUDY:1
SAHARA VS. STAR
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V/S
The Sahara Group's petition in the Delhi High Court sought to restrain Star from using
'One', but after the hearing, Star agreed to the court's suggestion to use the word Star
along with One in the logo. The Star counsel pointed that it would take three months to
alter the logo and that the company will launch the channel as scheduled on November 1
and then effect a change in the logo.
Ashok Desai, who represented Sahara in the case, had submitted that numbers could be
trade marks and as they had been protected by courts in several cases. He urged the court
to restrain Star India to use One in the logo of its new channel but alternatively suggested
that the court could ask Star to add the word Star to its logo and make it Star One. In its
petition filed in the high court, Sahara India Mass Communication, which owns Sahara
One, had sought to restrain Star from using One as the former had already registered the
brand with the Registrar of Trade Marks.
Sahara started its campaign for Sahara One and its logo was unveiled on October 1 2004
in London, the company said, adding Star's campaign for the proposed channel 'One' was
creating confusion among the viewers.
Star's contention was that it had announced its intention to launch the new channel 'One'
in June 2004, much before the rebranding of Sahara's entertainment channel.
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Originally “the Design Act” was a part of “the Patents and Designs Act, 1911”.The
Patent Act, 1970 was separately enacted by the Parliament keeping in view the
importance of patents world-wide, and also due to growing litigation. The sections
relating to patents were deleted from the Patents and Design Act, 1911, thus remaining
only the provisions of the Designs Act. Since 1970, the Patents and Design Act, 1911 was
called Designs Act, 1911. Hence a number of gaps in the numbers of sections as the
sections relating to the designs were not renumbered.
OBJECT: The Preamble of the Designs Act, 1911 explains the object of the Act, “An
Act to amend the law relating to the protection of designs.”
Design Right protection is the primary objective of the Designs Act, 1911 to offer
protection for original, industrial design articles. Protection is given to the shape or
configuration (whether internal or external) of the whole or part of the designed article.
Design right protection is concerned with original industrial design, focusing on the
actual article and without any mandatory requirement for original drawings to claim
ownership, unless that was how the design was first recorded.
Design right for industrial design is copy-right based allowing the owner the exclusive
right to produce articles to a particular design, but it is not a monopoly-based right for
original industrial design (as opposed to registered designs).
The design and brand names are inter-related. For example, ‘Guinness’ which on the first
financial brand assessment was valued at 1.7 billion pounds. In India, the Bajaj Chetak is
a favorite two-wheeler to several millions of people. The design attribute to Chetak
should not be imitated by any two-wheeler manufacturer.
Therefore, design is viewed as a financial asset, it becomes quite obvious that designers
and company managers should take a keen interest in making sure that the intellectual
property and its ownership is effectively and sufficiently protected.
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The problem with plagiarism (literary theft) is that reproduction of design products does
not require sophisticated know-how, creative skills or cost-consuming Research and
Development (R&D). it is therefore important that appropriate measures, such as
effective legal protection should be framed to deal with the design piracy to protect the
interests of design inventing persons and companies. This is achieved by enacting “The
Designs Act, 1911”.
AMENDMENTS:
The parliament of India has recently passed the Designs Act, 2000 to consolidate and
amend the law relating to protection of designs. The Legislature in its wisdom by
enacting the Design Act, 2000 does not want to stop the progress in industrial products as
that would amount to pin down the competitors and in the process the technology would
be blocked, same would result in clogging the economic growth. This Act has a total of
48 Sections that deal with the various definitions, registrations of designs, copyright in
registered designs, exhibition of designs at Industrial and Industrial exhibitions, and
powers and duties of the Controller & the Central Government. Since the enactment of
the Designs Act, 1911 considerable progress has been made in the field of science and
technology. The legal system of the protection of industrial designs requires to be made
more efficient in order to ensure effective protection to registered designs. It is also
required to promote design activity in order to promote design element in an article of
production. This Act is essentially aimed to balance these interests. It is also intended to
ensure that the law does not unnecessarily extend protection beyond what is necessary to
create the required incentive for design activity while removing impediments to the free
use of available designs.
To achieve these purposes, the new Act incorporated inter alia, the following, namely:-
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INTELLECTUAL PROPERTY RIGHTS
It contains provision for appeal against order of the Controller before the High
Court instead of Central Government as existing.
It provides for compulsory registration of any document for transfer of right in the
registered design.
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face the possibility of losing reputation and customer goodwill across their other
brands.
3 To tackle the nefarious designs of the brand counterfeiters, the Design Act, 2000
offers design registration that provides protection for visual appeal/appearance of a
product.
4 Sometimes purchase of articles for use is influenced not only by their practical
efficiency but also by their appearance. The objective of design registration is to see
that the artisan, creator, originator, of a design having aesthetic look is not deprived
of his bona fide reward by others applying it to their goods.
DESIGN
DESIGN means only the features of shape, configuration, patterns or ornament applied
to any article by any industrial process or means, whether manual, mechanical or
chemical, separate or combined, which in the finished article appeal and are judged solely
by the eye; but not include any mode or principle of construction or anything which is in
substance a mere mechanical device, and does not include any trade mark as defined in
clause (v) of sub-section (1) of section 2 of the Trade Merchandise Marks Act, 1958, or
property mark as defined in section 479 of the Indian Penal Code, 1860
Section 2 (d) of the Designs Act, 2000 defines a “DESIGN”. This definition is similar to
the one given under the Act of 1911 except the following added features.
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FEATURES OF DESIGN
Novelty:-
Designs are not register able unless they are “new”. This novelty must be reflect
manifestly and is to be tested against those designs which are already published or
registered in the country. The difference in “immaterial details or in features which are
variants commonly used in the trade” are not sufficient to render the design “new”. The
designer must have applied some further skill and labour of a draftsmanship. However
common trade usage is not the only criterion for judging the novelty of registered
designs.
An article for which a design may be registered includes “any part of an article if that
part is made and sold separately”.
“Must Match”:-
To secure conformity with unregistered design right , the 1988 Act (UK) excludes
consideration of features of shape and configuration which are dependant on the
appearance of another article of which article is intended by the author of the design to
form an integral part.
Immaterial Appearance:-
An exclusive where, the appearance of the article is not material. I.e. if aesthetic
considerations are not normally taken into account to a material extent by persons
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acquiring or using articles of that description and, would not be taken into account if the
design were applied to the article
.FUNCTIONAL FEATURES :-
A registrable design does not include features of shape or configuration, which are
dictated solely by the function which the article has to perform. Thus in England, the
emphasis is on “eye appeal”. An electrical terminal for washing machines was held
“unregistrable” because a potential customer would decide to buy it solely for its utility
and not because of any attraction in its shape. Thus strictly utilitarian articles were
excluded from registration as designs.
ESSENTIALS OF A DESIGN
It’s clear that an industrial design must fulfill the following essential conditions, to be
protected under the law.
A design is something which is applied to an article and not the article itself. An article
to which the design is to be applied must be something which can be delivered to the
purchaser / customer as a finished article. Therefore, buildings and structures like a 5-star
hotel or a petrol filling station cannot be considered as article within may be subject-
matter for registration as design E.g. models of buildings, structures and toys etc.
As can be seen from the definition under the 1911 as well as the 2000 Acts, features of
shape, etc, which in the finished article must appeal to the eye and be capable of being
judged solely by the eye. In other words, all shapes or configurations or patterns are not
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capable of being registered. The features should appeal to the eye and should be judged
solely by the eye and not by any functional considerations. There must be a special.
Peculiar, distinctive, significant or striking appearance - something which catches the
eye.
A design, for the purpose of registration must be both new and original, not previously
published in India. It should be substantially different from pre-existing designs applied
to the class of article. The introduction of ordinary trade variants into an old design
cannot make it new or original. For e.g. colour may form an element in a design, but
colour or colouring as such does not constitute a design, unless the change of colour
creates a new pattern or ornament. In deciding the question of novelty or originality, the
evidence of experts in the trade is admissible. What amounts to a substantial difference
must depend on the particular facts of each case. A design which is a fraudulent or
obvious imitation of an existing design will be considered a pirate copy. Similarly a
design of a water dispenser in a cylindrical shape has been held to be “no novelty” in
“Hello Mineral Water Pvt Ltd” vs. “Thermoking California Pure” on the ground that
mere novelty of form or shape is insufficient. Novelty involves the presence of some
element or new position of an old element in combination, different from anything found
in any prior structure.
Copyright In Drawings:-
Whatever be the nature of the drawing, the purpose and intention would be the relevant
criterion to consider whether the drawings are designs in the light of the provision
Designs Act, 1911 and the Copyright Act, 1957. Therefore where a design comes within
the meaning of the definition, under the Act of 1911 and also within the meaning of
section 15 of the Act of 1957, if the same is not registered under the previous Act, cannot
be claimed under the latter Act.
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Presumption Of Originality: -
Where the statement of novelty filed by the petitioner was in respect of shape,
configuration and surface pattern particularly the ridged side of the container. The
novelty was not claimed either in relationship to the proportion of the shape or in the
colour used. Therefore difference in the proportion of the container and the difference in
the colour of the petitioner’s containers and the defendant’s containers are immaterial, as
neither the colour nor the proportions were part of the registered design.
No Prior Publication:-
An application for the registration of a design should be for a new or original design, not
previously published in India. The Design Act does not define “publication”. In order to
constitute publication, a design must be made available to the public or it is shown to be
disclosed to some person without any obligation to keep in a secret / confidential. It is not
necessary the design should be actually used. Generally the publication may be classified
into two types, (a) publication in prior document; and (b) publication by prior user. If it’s
published already, it cannot be registered as a “design” under the Act. In Kemp and
company and others vs. Prima Plastics Ltd. The Bombay High Court held that a
disclosure of a design by the proprietor to any other person in good faith is not deemed to
be a publication of design sufficient to invalidate the copyright thereof, if the registration
is obtained subsequent to the disclosure.
For instance, if goods are imported from the abroad and are used by the importer
without its disclosure to anyone else and goods of such design are not available freely in
India, then possibly, can be said that there is no publication of the design of the goods so
imported. However, if such imported goods are used in full view of general public, then
the design of the goods so imported and use, will have to be regarded as having been
published in India, apart from the fact that such a design, of later used for manufacture of
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INTELLECTUAL PROPERTY RIGHTS
goods in India, would not be regarded as a new or original design. If for example, an
importer imports a car which works on solar energy and even though the car so imported
may be only is of its kind in India, but when it is driven on the roads here, it would mean
that the design of the car has been made public in India.
7. Effect Of Pre-Publication:-
Design is a conception, suggestion, or idea of a shape and not an article. It has been
already anticipated, it is not “new” or “original”. If it has been pre-published, it cannot
claim protection. Publication before registration defeats the proprietor’s right to
protection under the Act.
REGISTRATION OF DESIGN
Sections 3 to 10 of the Designs Act 2000 and rules 11 to 25 of the Designs Rule Act 2001
deal with the registration of designs. The registering authority is the Controller-General
of Patents. Designs and Trade Marks, appointed by the Central Government. He will be
controller of Designs for the purpose of the Act.
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Cancellation of design.
Designs that are primarily literary or artistic in nature are not protected under this act.
They are as follows:
1 Book, Jackets, Calendars, certificates, greeting cards, maps, post cards, stamps,
medals
2 Labels, tokens, cartoons
3 Any principle or mode of construction of an article
4 Mere mechanical contrivance
5 Buildings and structures
6 Parts of articles not manufactured and sold separately
7 Mere change in size of an article
8 Flags, emblems or signs of any country
9 Layout designs of Integrated circuits
2 If anyone contravenes the copyright in a design he is liable for every offence to pay a
sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of
Rs. 50,000/- recoverable as contract debt in respect of any one design.
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CASE STUDY:1
FACTS:-
In this case, The Britannia Industries filed a suit for interim injunction restraining the
respondent I.e. Saraa Lee Bakery, from committing the acts of piracy of the applicants
design, which was registered. Sara Lee Bakery manufactured the impugned product
“MILK WALA”, “MILK CREAM BISCUITS” becoming the design which was identical
or similar to applicants design.
JUDGEMENTS:-
The Honorable Court, held that main features in both the biscuits are not substantially
same in the eye of the customer specially children. Therefore it was held that there is no
infringement by the respondent in respect of the Design Act and the application of
Britannia Biscuits was refused.
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CASE STUDY:2
A recent controversy
erupted on the 25th April
2005 at the Lakme India
Fashion Week. One
designer accused another
of copying his creation.
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INTELLECTUAL PROPERTY RIGHTS
The accusation: Aki, who is designing for the Yashraj film, Bunty Aur Babli, has used a
creation from Suneet's 2003 Fall/Winter collection to dress Rani Mukherjee. Suneet
Verma alleges that the chiffon poncho and embroidered black dress worn by Rani
Mukherjee in the said movie is his creation which was taken by Aki Narula without his
prior permission.
The damages: Rani's costume by Aki costs Rs 8,500
Suneet's design from the fall collection costs Rs 14,500.
GEOGRAPHICAL INDICATION
What is a Geographical Indication?
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INTELLECTUAL PROPERTY RIGHTS
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accompanied by such fees as may be prescribed for the registration of the geographical
indication
REGISTRATION PROCESS :
The Register of geographical indication is divided into two parts. Part ‘A’ consists of
particulars relating to registered geographical indications and Part ‘B’ consists of
particulars of the registered authorized users .The Registration process is similar to both
for registration of a geographical indication and an authorized user which is illustrated
below.
1. Registration and protection.
2. Assignment and transfer
3. Infringement advice and litigation.
BENEFITS OF REGISTRATION :
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INTELLECTUAL PROPERTY RIGHTS
• 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. 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 goods originate in another
territory, region or locality, as the case may be.
Case Studies :1
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BASMATI RICE
The Basmati case, which was initially a battle over patents, soon turned into a struggle
over geographical indications.
Basmati is an aromatic variety of rice grown in the Himalayan region of India and
Pakistan. It is slender, aromatic rice that grows in this region and is a major export crop
for both countries. The soil and the climate of the region are primarily responsible for the
special character of the rice grown there. Although there are other varieties of aromatic
rice, like the Thai aromatic rice well know as 'Jasmine,' Basmati rice is more renowned
and is totally associated with the geographical region from which it originates. Annual
Basmati exports are worth about $300 million and constitute the livelihood of thousands
of farmers. The battle for Basmati began in 1997, when the US rice breeding firm,
RiceTech Inc. was awarded a patent (US5663484) relating to plants and seeds, seeking a
monopoly over various rice lines, including some having characteristics similar to
Basmati lines.
India requested a re-examination of this patent in 2000 and, in response to this request;
the patentee withdrew a number of claims, including those covering Basmati type lines.
Further claims were also withdrawn following concerns raised by the USPTO. The
dispute has, however, moved on from the patent issue to the misuse of the name
“Basmati.”
In some countries the term “Basmati” can be applied only to the long-grain aromatic rice
grown in India and Pakistan. RiceTech also applied for the registration of the trademark,
‘Texmati,’ in the UK, claiming that “Basmati” was a generic term. It was successfully
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opposed and the UK has established a code of practice for marketing rice. Saudi Arabia
(the world’s largest importer of Basmati rice) has similar regulations on the labelling of
Basmati rice. The code states, “The belief in consumer, trade and scientific circles is that
the distinctiveness of authentic Basmati rice can only be obtained from the northern
regions of India and Pakistan due to the unique and complex combination of
environment, soil, climate, agricultural practices and the genetics of the Basmati
varieties.”
But in 1998 the US Rice Federation submitted that the term “Basmati” is generic and
refers to a type of aromatic rice. In response, to a petition filed by the US and Indian civil
society organizations which sought to prevent US-grown rice from being advertised with
the word “Basmati”, the US Department of Agriculture and the US Federal Trade
Commission rejected it in May 2001. It opined that the label “American-grown Basmati”
did not mislead the consumers, and deemed “Basmati” as a generic term.
CASE STUDY: 2
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INTELLECTUAL PROPERTY RIGHTS
The famous Pochampally Ikat tie-and-dye sari has won Intellectual Property Rights
Protection, more than a year after it first applied for the same. It is the first traditional
Indian craft to receive this status.
Under Geographical Indications, a product and its attributes are linked to a specific
region; in this case the Ikat fabric is linked to Pochampally. A GI can also be non-
geographical name like basmati rice. Producers spend time and money in developing
products that are unique to their territory. They should, therefore be protected from
misappropriation and unfair competition. Besides, consumers should also be protected
from the misuse of the GI associated with the product. Although registration of a GI is
not compulsory, it provides a legal protection to a product to facilitate action against
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INTELLECTUAL PROPERTY RIGHTS
The powerloom clusters at Solapur and Salem also following the path of Pochampally
cluster.
Remedies :
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.
CONCLUSION
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It’s true that globalization and open markets are here not only to stay but to grow and
cover all the countries under its blanket, and various international agencies and
international financial institution such as WTO, World bank and the IMF reinforce the
thought that “globalization and free markets is the only way to go”.
The current scenario shows a similar picture with countries trading with each other on a
huge scale and on a continuous basis; the world in a true sense has become a “global
village”. As countries come close due various reason primarily due to trade coupled with
a technological and information boom, the breed of researchers, inventers, innovators and
discoverers have found a replenishing tonic- IPR (Intellectual Property Rights).
As countries trade and numerous inventions, products, services, ideas, creative works are
born it is imperative for any country big or small, strong or weak, to safeguard the
interest of it’s indigenous inventors, products, service, solutions, ideas and creative work
at large. It’s obligatory for a country, organization, an association or an individual to
protect ones interest and discourage others from taking unfair advantage.
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IPR is going to play a crucial role in near future, which can be attributed to the following
few reasons :-
As it is said nothing is perfect, so is the case with IPR. Following are few
suggestions which would make IPR more efficient:
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The days are changing fast and the material based society is changing into a knowledge
based society. In this context we can easily say that IP would play a very important role
in the coming generations.
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BIBLIOGRAPHY
WEBLIOGRAPHY:
www.wto.org
www.wipo.org
www.laws4india.com
www.newmedia.agencyfaqs.com
www.legalservice.com
SEARCH ENGINES:
www.google.co.in
www.yahoosearch.com
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