GEOGRAPHICAL INDICATORS:-

What is a geographical indication?

A geographical indication (GI) is a sign used on products that have a specific geographical
origin and possess qualities or a reputation that are due to that origin. In order to function
as a GI, a sign must identify a product as originating in a given place. In addition, the
qualities, characteristics or reputation of the product should be essentially due to the place
of origin. Since the qualities depend on the geographical place of production, there is a clear
link between the product and its original place of production.
A geographical indication right enables those who have the right to use the indication to
prevent its use by a third party whose product does not conform to the applicable
standards. For example, in the jurisdictions in which the Darjeeling geographical indication is
protected, producers of Darjeeling tea can exclude use of the term “Darjeeling” for tea not
grown in their tea gardens or not produced according to the standards set out in the code of
practice for the geographical indication.

However, a protected geographical indication does not enable the holder to prevent
someone from making a product using the same techniques as those set out in the
standards for that indication. Protection for a geographical indication is usually obtained by
acquiring a right over the sign that constitutes the indication.

INDUSTRIAL DESIGNS:-

In a legal sense, an industrial design constitutes the ornamental aspect of an article.

An industrial design may consist of three dimensional features, such as the shape of an
article, or two dimensional features, such as patterns, lines or color.

In principle, the owner of a registered industrial design or of a design patent has the right to
prevent third parties from making, selling or importing articles bearing or embodying a
design which is a copy, or substantially a copy, of the protected design, when such acts are
undertaken for commercial purposes.

In most countries, an industrial design needs to be registered in order to be protected under

industrial design law as a “registered design”. In some countries, industrial designs are
protected under patent law as “design patents ”.
Industrial design laws in some countries grant – without registration – time- and scope
limited protection to so-called “unregistered industrial designs”.
Depending on the particular national law and the kind of design, industrial designs may also
be protected as works of art under copyright law.

INFRINGEMENT OF PATENT RIGHTS:-

Patent infringement means the violation of the exclusive rights of the patent holder. As
discussed earlier, patent rights are the exclusive rights granted by the Government to an
inventor over his invention for a limited period of time. In other words, if any person
exercises the exclusive rights of the patent holder without the patent owner's authorization
then that person is liable for patent infringement. Sections 104-114 of the Patents Act, 1970
provide guidelines relating to patent infringement.

Unlike the Design law, the Patents law does not specify as to what would constitute
infringement of a patented product or process. However, the following acts when
committed without the consent of the patentee shall amount to infringement:

(i) making, using, offering for sale, selling, importing the patented product;
(ii) using the patented process, or using, offering for sale, selling or importing the product
directlyobtained by that process

Types of Infringement
There are two kinds of infringement :
Direct Infringement
Direct patent infringement is the most obvious and the most common form of patent
infringement. Basically,direct patent infringement occurs when a product that is
substantially close to a patented product or inventionis marketed, sold, or used
commercially without permission from the owner of the patented product or invention.
Indirect Infringement
Indirect patent infringement suggests that there was some amount of deceit or accidental
patent infringementin the incident. For instance, A holds a patent for a device and B
manufactures a device which issubstantially similar to the A’s device. B is supplied with a
product from another person C to facilitatemanufacturing of the B’s device. If the device so
manufactured by B infringes upon A’s patent, then theperson C indirectly infringes A’s
patent. Further, if such a product is knowingly sold or supplied, it may lead to“contributory
infringement”. In the above example, if the person C knowingly supplies the product to B
thenthe infringement is construed as contributory infringement.

Exclusion From Infringement

The law however enumerates certain exceptions to infringement:
(a) Experimental and Research: Any patented article or process can be used for the
following purposes:
• Experiment
• Research
• Instructing the pupils
It is also permitted to make, construct, use, sell or import a patented invention solely for the
uses reasonablyrelated to the development and submission of information required under
any law for the time being in force,in India, or in a country other than India, that regulates
the manufacture, construction, use, sale or import ofany product. All such acts, if within the
bounds as created above, cannot be challenged as infringing therights of the patentee.

(b) Parallel Importation under certain conditions: Patented article or article made by using
the patented process can be imported by government for its own use. Also a patented
process can be used by the government solely for its own use. Moreover the government
can import any patented medicine or drug for the purposes of its own use or for distribution
in any dispensary, hospital or other medical institution maintained by the government or
any other dispensary, hospital or medical institution notified by the government. [Section27
& 47]

Burden of Proof
The traditional rule of burden of proof is adhered to with respect to patented product
andaccordingly in case of alleged infringement of a patented product the ‘onus of proof’
rests on the plaintiff.However, TRIPS-prompted amendment inserted by way of Section 104
(A) has ‘reversed burden of proof’ incase of infringement of patented process. Under the
current law, the court can at its discretion shift the burdenof proof on the defendant, in
respect of process patent if either of the following two conditions is met:
(a) the subject matter of the patent is a process for obtaining a new product; or
(b) there is substantial likelihood that an identical product is made by the process and
plaintiff hasmade reasonable efforts to determine the process actually used but has failed.
[Section 104 (A)]
While considering whether a party has discharged the burden imposed upon him under
Section 104(A), thecourt shall not require him to disclose any manufacturing or commercial
secrets, if it appears to the court thatit would be unreasonable to do so.

Doctrine of Equivalents And Doctrine of Colourable Variation

Patent infringement generally falls into two categories: literal infringement and
infringement under the doctrine of equivalents. The term "literal infringement" means that
each and every element recited in a claim has identical correspondence in the allegedly
infringing device or process.

However, even if there is no literal infringement, a claim may be infringed under the
doctrine of equivalents if some other element of the accused device or process performs
substantially the same function, insubstantially the same way, to achieve substantially the
same result. The doctrine of equivalents is a legal rule in most of the world's patent systems
that allows a Court to hold a party liable for patent infringement even though the infringing
device or process does not fall within the literal scope of a patent claim, but nevertheless is
equivalent to the claimed invention.

This "expansion" of claim coverage permitted by the doctrine of equivalents, however, is

not unbounded. Instead, the scope of coverage which is afforded the patent owner is
limited by (i) the doctrine of "prosecution history estoppel" and (ii) the prior art.

An infringement analysis determines whether a claim in a patent literally "reads on" an

accused infringer's device or process, or covers the allegedly infringing device under the
doctrine of equivalents.
The steps in the analysis are:
• Construe the scope of the "literal" language of the claims.
• Compare the claims, as properly construed, with the accused device or process, to
determine whether there is literal infringement.
• If there is no literal infringement, construe the scope of the claims under the doctrine of
equivalents.
The doctrine of equivalents is an equitable doctrine which effectively expands the scope of
the claims beyond their literal language to the true scope of the inventor's contribution to
the art. However, there are limits on the scope of equivalents to which the patent owner is
entitled.

IMPORTANT ARTICLES OF TRIPS :-

Article 15
Protectable Subject Matter
1. Any sign, or any combination of signs, capable of distinguishing the goods or services of
one undertaking from those of other undertakings, shall be capable of constituting a
trademark. Such signs, in particular words including personal names, letters, numerals,
figurative elements and combinations of colours as well as any combination of such signs,
shall be eligible for registration as trademarks. Where signs are not inherently capable of
distinguishing the relevant goods or services, Members may make registrability depend on
distinctiveness acquired through use. Members may require, as a condition of registration,
that signs be visually perceptible.

2. Paragraph 1 shall not be understood to prevent a Member from denying registration of a

trademark on other grounds, provided that they do not derogate from the provisions of the
Paris Convention (1967).

3. Members may make registrability depend on use. However, actual use of a trademark
shall not be a condition for filing an application for registration. An application shall not be
refused solely on the ground that intended use has not taken place before the expiry of a
period of three years from the date of application.

4. The nature of the goods or services to which a trademark is to be applied shall in no case
form an obstacle to registration of the trademark.

5. Members shall publish each trademark either before it is registered or promptly after it is
registered and shall afford a reasonable opportunity for petitions to cancel the registration.
In addition, Members may afford an opportunity for the registration of a trademark to be
opposed.

Article 16
Rights Conferred
1. The owner of a registered trademark shall have the exclusive right to prevent all third
parties not having the owner’s consent from using in the course of trade identical or similar
signs for goods or services which are identical or similar to those in respect of which the
trademark is registered where such use would result in a likelihood of confusion. In case of
the use of an identical sign for identical goods or services, a likelihood of confusion shall be
presumed. The rights described above shall not prejudice any existing prior rights, nor shall
they affect the possibility of Members making rights available on the basis of use.
2. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services. In
determining whether a trademark is well-known, Members shall take account of the
knowledge of the trademark in the relevant sector of the public, including knowledge in the
Member concerned which has been obtained as a result of the promotion of the trademark.

3. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or
services which are not similar to those in respect of which a trademark is registered,
provided that use of that trademark in relation to those goods or services would indicate a
connection between those goods or services and the owner of the registered trademark and
provided that the interests of the owner of the registered trademark are likely to be
damaged by such use.

Article 17
Exceptions
Members may provide limited exceptions to the rights conferred by a trademark, such as
fair use of descriptive terms, provided that such exceptions take account of the legitimate
interests of the owner of the trademark and of third parties.

Article 18
Term of Protection
Initial registration, and each renewal of registration, of a trademark shall be for a term of
no less than seven years. The registration of a trademark shall be renewable indefinitely.

Article 19
Requirement of Use
1. If use is required to maintain a registration, the registration may be cancelled only after
an uninterrupted period of at least three years of non-use, unless valid reasons based on
the existence of obstacles to such use are shown by the trademark owner. Circumstances
arising independently of the will of the owner of the trademark which constitute an obstacle
to the use of the trademark, such as import restrictions on or other government
requirements for goods or services protected by the trademark, shall be recognized as valid
reasons for non-use.

2. When subject to the control of its owner, use of a trademark by another person shall be
recognized as use of the trademark for the purpose of maintaining the registration.

Article 20
Other Requirements
The use of a trademark in the course of trade shall not be unjustifiably encumbered by
special requirements, such as use with another trademark, use in a special form or use in a
manner detrimental to its capability to distinguish the goods or services of one undertaking
from those of other undertakings. This will not preclude a requirement prescribing the use
of the trademark identifying the undertaking producing the goods or services along with,
but without linking it to, the trademark distinguishing the specific goods or services in
question of that undertaking.

Article 21
Licensing and Assignment
Members may determine conditions on the licensing and assignment of trademarks, it
being understood that the compulsory licensing of trademarks shall not be permitted and
that the owner of a registered trademark shall have the right to assign the trademark with
or without the transfer of the business to which the trademark belongs.

IPR AND HUMAN RIGHTS:-

Intellectual property regimes seek to balance the moral and economic rights of creators
andinventorswiththewiderinterestsandneedsofthesociety. Amajorjustificationfor patents and
copyrights is that incentives and rewards to inventors result in benefits for the society.

A human rights approach to intellectual property takes what is often an implicit balance
between the rights of inventors and creators and the interests of the wider society within
intellectual property paradigms and makes it far more explicit and exacting.

SECTION I: IP AS BEING COMPLEMENTARY TO HUMAN RIGHTS

The three important legislations about human rights

[1] enumerate intellectual rights with other rights in the same single article. As a matter of
fact, the protection of authors and creators must be understood as a necessary precondition
for completing, respecting and promoting cultural freedom, taking part in cultural life and
scientific progress. In other words, the rights of authors and creators have to facilitate, rather
than restrict, cultural participation and scientific access.
Besides, both intellectual property and human rights are fundamentally compatible in the
sense that intellectual rights try to strike the balance between incentives on the one hand
and access on the other hand. Indeed, one may recognize an intersection between both
systems by balancing positions and interests.

SECTION II: IP AS BEING DIFFERENT FROM HUMAN RIGHTS

The international authority responsible for the follow-up of the Universal Covenant of
economic, social and cultural rights was little interested in the interpretation of intellectual
property as a human right. Admittedly, most jurists specialized in intellectual property think
about the commercial aspect rather than the ethical and moral considerations. However, it is
of the present writer’s opinion that intellectual property considered as a human right with an
ethic interest is completely different from intellectual property considered with an economic
interest.

Firstly, by rewarding an individual for his personal effort, by giving him a guarantee for his
costs or by considering the creation as an extension of an individual’s personality, the
economic aspect of intellectual property emphasizes strongly on individualism.

In contrary, the logic of the ethical aspect of human rights is completely different. The
reasoning based on human rights admits the fact that the authors/creators/inventors can be
individuals as well as groups or communities. This theory recognizes the intrinsic value of
the intellectual products as an expression of the human dignity and creativity. Even if
utilitarian proponents raise their arguments by “fostering the social goals they posit at the
heart of their claims”[2] human rights system is fundamentally different. In other words,
human rights logic does not reduce the value of the product to a price or a degree of utility.

Secondly, the main character of human rights turns around the protection of human dignity
and the “common good”. In this respect, human rights take in consideration the interest of
the authors and creators but also the interest of the society in a larger sense. By contrast,
some authors claim that the economic aspect reduces the intellectual rights to the interest of
its titular. Nevertheless, such an analysis might be quite simplistic and reductive. Indeed,
“the incentive structure in utilitarian arguments focuses on promoting the general public
good, not on placing the individual creator as an independent object entitled to a right”[3].

SECTION III: IP AS AN OBSTACLE TO HUMAN RIGHTS

After having seen that intellectual rights are considered as human rights only if they promote
the other rights, this section will demonstrate the damaging effect of intellectual property on
human rights.

In the scientific domain, there is more and more privatization and reduction of the scientific
publications. Some researchers delay their publications and hide their information in order to
defend their intellectual property. Thus, instead of being an incentive, intellectual property is
a real brake on the scientific progress. The multiplication of patents and other intellectual
rights for a huge number of people will engender a situation in which everybody blocks the
other. Therefore, as terrible consequences, intellectual property will reduce the innovation
and the offer of products.

In addition, intellectual property is also an obstacle to another human right: the right to
health. As an example, most of the time, the titular’s of patents set their price at a level far
higher than generics, with the result that a huge number of people do not have any access
to some useful and appropriate medicine, in spite of the fact that those people represent the
majority of the developing states.

Besides, the right to alimentation is also hindered due to the fact that some big companies
got large patents giving them a colossal monopole on some important plant genome.

Finally, it seems well judged to conclude with the idea that the essence of human rights itself
is hindered by intellectual property. While patents and trademarks are registered rights,
copyrights are not subject to any examination. From this standpoint, such an automaticity of
protection does not lead to any exclusion on the grounds of morality. In addition, it has been
noticed that officials responsible for the deliverance of patents generally neglect their duty to
moral care. Most of them estimate neither necessary nor convenient to take in consideration
moral and ethic preoccupations in a patent exam, in spite of the fact that ethic
preoccupations are the soul of Human Rights.

CONCLUSION

In conclusion, one may wonder how we can maintain such privileges in our democratic
society when they clearly threaten our most fundamental rights. Finally, if the regime of
intellectual property is highly challenged, it is mainly because it threatens the fundamental
Individual Rights of our society. Consequently, it is doubtful to believe that such a privilege
holds water when it is generally accepted that fundamental freedoms and rights must never
be called into question.
Thus, the very basic debate is that how a balance to be maintained between the Intellectual Property
Rights and the Human Rights because the smooth existence of both is required for the appropriate and
rich economic and the social development of the society as a whole.

For resolving the conflict between Human Rights and Intellectual Property Rights, the precise Rights which
are being undermined should be identified. The Human Rights Organizations should develop specific
interpretations of the ambiguous Rights (mainly economic, social and cultural rights) in order to comply
with the terms of the TRIPS Agreement. Secondly, if the TRIPS Agreement is seen from the Human Rights
perspective, then the consumers of Intellectual Property products will be on an equal stage with the
owners of Intellectual Property Rights. The agreement regards the consumers of these products inferior to
the owners. But if the Human Rights purview is added to the agreement, then the consumers will also be
the holders of these internationally guaranteed Rights. Thirdly, rather than advocating minimum standards
for Intellectual Property Rights protection, the Government should impose maximum standards for
Intellectual Property Rights protections.

This would act as a limit for the multiplying standards of Intellectual Property Rights protection. It is also
suggested for better protection of the Human Rights if a minimum required standard of the protection of
the Human Rights is to be maintained while realizing any kind of Intellectual Property Rights. Lastly, the
international forums on Intellectual Property Rights, such as the World Intellectual Property Organisation
(WIPO), the World Trade Organisation (WTO), etc., while making new Laws on Intellectual Property Rights,
should analyse the Laws with a Human Rights perspective. It is only in such circumstances that the Human
Rights Law and Intellectual Property Rights Law will be able to co-exist with one another properly.