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TBFT/U3 Topic 6 Concepts, Objectives, TRIPs , Law and procedure, Trademarks, Copy Rights

The concept of Intellectual Property is define in general is that the important feature of property is that the proprietor or owner may use his property as he wishes and that nobody else can lawfully use his property without his authorization. Of course there are certain recognized limits for the exercise of that right.

The term intellectual property includes, in the broadest sense, all rights resulting from intellectual activity in the industrial, scientifically, literary, or artistic fields. The conventions establishing the WIPO defines ‘Intellectual Property’ in a broad sense .But the term Intellectual Property is define first time in Paris Convention.

Intellectual Property is derived from the term Industrial Property which includes trademarks, design marks, service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition.

The main objectives of Paris Convention provides that “the protection of industrial property like patents, utility models, industrial designs, trademarks, service marks and the repression of unfair competition”. But in the WIPO defines it broadly and intellectual property shall include the right relating to:

  1. Literary, artistic and scientific works;
  2. Performance of performing artists;
  3. Inventions in all fields of human Endeavour;
  4. Scientific discoveries;
  5. Industrial designs;
  6. Trademarks, service marks and etc;
  7. Protection against unfair competition.

This definition although inclusive in nature, is very comprehensive.

As we know that the intellectual property is intangible. It is a new form of property which got greater recognition only in the 18th century. The Intellectual Property is a property in mental labour as distinguished from physical labour.

Therefore the Intellectual Property is to be understood as a result of mental labour in contradistinction with purely physical labour. It is mostly intangible in nature.

The development of international trade can be adversely affected, if the standards adopted by countries to protect Intellectual Property Rights (IPRs) vary widely from one country to another.

Furthermore, the ineffective enforcement of such rights can encourage trade in counterfeit and pirated goods, thereby damaging the legitimate commercial interests of manufacturers who hold or have acquired these Rights.

The TRIPS Agreement, negotiated in the Uruguay Round, therefore lays down the minimum standards for the protection of OPRs as well as procedures and remedies for their enforcement.

It establishes a mechanism for consolation and surveillance at the international level to ensure compliance with these standards by member countries at the national level.

The obligations of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) came into effect for developed countries on 1 January, 1996.

The Agreement provides a transitional period of five years (up to 1 January, 2000) for developing countries to bring their IPR legislation in conformity with the provisions of the Agreement. The transitional period for the least developed countries is 11 years (up to 1 January, 2006).

Developing countries which do not at present provide product patent protection in an area of technology have up to 10 years to introduce such protection.

However, in the case of pharmaceutical and agricultural chemical products, they must accept the filing of patent applications from the beginning of the transitional period, though these applications need not be granted until the end of this period.

If authorisation for the marketing of the relevant pharmaceutical or agricultural chemical is obtained during the transition period, the developing country concerned must, subject to certain conditions, provide an exclusive marketing right for the product for five years, or until a product patent is granted, whichever is shorter.

During any transitional period, a standstill clause applies which forbids members to reduce the levels of protection for Intellectual Property such as exist in their territory. Subject to certain exceptions, the general rule is the obligations in the Agreement apply to existing as well as to new Intellectual Property Rights.

The objects of Intellectual Properties are the creations of the human mind, the human intellect. Intellectual Properties include copyright, patents industrial designs and trademarks. Copyright relates to the rights of creators of literary, scientific, and artistic works.

Patents give exclusive rights to inventors. However, inventions can be patented only if they are new, non- obvious and are capable of industrial applications. Industrial designs are new or original aesthetic creations determining the appearance of industrial products.

These three rights are available for a limited duration. A trademark distinguishes a product or a service from those of others; they also assist consumers in making informed choices on the basis of the information provided by manufacturers about the quality of the product.

Intellectual Property Rights (IPRs) are, for many companies, as much a commercial commodity as a manufactured product is for the innovator, and his invention is as important as the automobiles are for a car manufacturer. If everybody can freely use the invention, the innovator would be ‘out of business’ in a short time.

The enormous technological development of transport and communications has resulted in the globalization of trade and commerce. This has its impact on intellectual property which is becoming international in character.

Important types of property rights covered by TRIPS under intellectual properties are listed below:

  1. Patents
  2. Industrial designs
  3. Trade marks
  4. Copyrights and related rights

All these Intellectual Properties can be protected in one way or another.

1. Patents:

Inventions are protected if they are new, non-obvious and industrially applicable. The TRIPS Agreement requires that at least 20-year patent protection be available for all inventions, whether of products or processes, in almost all fields of technology.

Inventions may be excluded from patent ability, if their commercial exploitation is prohibited for reasons of public order or morality. Otherwise, the permitted exclusions are for diagnostic, therapeutic and surgical methods, and for plants (other than microorganism’s processes).

Plant varieties, however, must be protectable either by patents or by an effective sui generis system (such as the breeder’s rights provided in the conventions of UPOV, the Intellectual Union for the Protection on New Varieties of Plants). Compulsory licensing and governmental use of patents without the authorisation of the patent owner are subject to detailed conditions.

Rights conferred in respect of patents for processes must extend to the products directly obtained by the process. Under certain conditions, alleged infringes may be ordered by a Court to prove that they have not used a patented process.

2. Industrial designs:

Industrial designs are, for example, applicable in the field of textiles, motor cars and electronics. The designs are ornamental. Industrial designs are protected, under the Agreements, for a period of not less than 10 years.

Owners of protected designs must be able to prevent the manufacture, sale or importation of articles bearing or embodying a design, which is a copy of the protected design.

3. Trademarks:

The Agreement defines what types of signs and logos must be eligible for protection as trademarks or service marks and what the minimum rights conferred on their owners must be.

Marks that have become well- known in a particular country enjoy additional protection. More attention is paid to trade marks, particularly in the EU market, in the module about the European Union.

4. Copyright:

The TRIPS Agreement ensures that computer programmes are protected as literary words and outlines as how databases should be protected. An important addition to existing international rules in the area of copyright and related rights is the provision on rental rights.

Authors of computer programmes and producer.3 of sound recordings have the right to authorise or prohibit the commercial rental of their words to the public. A similar exclusive right applies to films, where commercial rental has led to widespread copying, which is materially impairing the right of reproduction.

Performers are protected from unauthorised recording, reproduction and broadcast of live performances (bootlegging) for no less than 50 years. Producers of sound recordings must have the right to prevent the reproduction of recordings for a period of 50 years.

The contribution of intellectual property to the economic and cultural development of a country is substantial. The granting of patent monopoly in consideration of the disclosure of the invention enables competitors in the field to manufacture new products or improved products or effect improvements in the process of manufacture.

Industrial design protection encourages people with creative faculty to devote their talent and energy in developing new designs for products. This is particularly so in the case of consumer products including toys, garments, furniture and so on.

Protection of trademarks enables consumers to obtain their products of the right quality which they are accustomed to get identifying the product by the mark. If trademarks cannot be protected from infringement the market will be flooded with shoddy and spurious goods by unscrupulous Persons by copying well-known trademarks.

Piracy of intellectual property has become international in character. This is particularly important in the case of copyright. The international character of intellectual property is recognized in the various international conventions for the protection of such property.

As technology in all fields of human activities is developing exponentially the field of intellectual property is also expanding correspondingly.

Protection of plant varieties, prevention of various forms of unfair competition or misappropriation of goodwill, reputation or trade values, unfair business practices, slavish copying of the details of products, dilution of reputed trademarks and their commercial value by using them by competitors in the field of activity different from the owner’s are becoming more and more difficult.

So intellectual property law is one of the fastest growing branches of law all over the world. Now the internet website and cyber space facilities have produced many problems relating to protection of intellectual property.

England is the birth place of all the rights of intellectual property. These rights came into existence by statutes and common law. The same trend has been spread throughout the world, including India.

There are statutes enacted on copyrights, rights of performance, patents, designs and trademarks. The law of confidence, passing off, trade libel etc. are covered under the common law and also in other statutes.

There are many similarities in between these forms of properties, and at the same time, there are also differences. Some rights give monopoly to the creator, and some merely prevent the unfair use by others. The period of right vested in such properties also varies from one form to another. Some require registration, and some do not.

Majority of the intellectual properties are ‘chose in action’. ‘Chose in action’ means thing in action. It means the rights of the owner of any intellectual property can be enforced only by legal action.

It is a known legal expression used to describe all personal rights which only be enforced by action, and not by taking physical possession. It is a substantive law, which creates the rights and duties.

It embraces property law, contract law, tort, criminal law, commercial law, corporation laws, global laws and also procedural laws such as evidence, criminal procedure, civil procedure, limitation, prescription etc.

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