About Intellectual Property
Intellectual Property refers to the property created by use of human intellect, ingenuity and creativity. Intellectual property can be broadly classified in four different categories, viz. trade mark, copyrights, patents & designs.
Real property refers to actual or physical property that is owned by a person. It is a tangible property having a real existence and can be perceived by human senses such as sight, touch etc. Intellectual property is an intangible property created through human intellect and is not physical and cannot be perceived through human senses.
Both types of properties have values attached to them and both are afforded legal protection. Both can be legally owned, acquired, sold, transferred, assigned, licensed etc.
Trade marks and copyrights mostly relate to manufacturing as well as service industry whereas patents and designs are primarily concerned with the manufacturing industry.
No. It is not compulsory to register a trade mark or a copyright, though it is advisable to get them registered since registration confers various rights on the proprietor/owner of the trade mark or copyright, such as exclusive right to use the mark and to obtain relief in case of infringement of the trade mark or copyright.
No. It is not compulsory to register patents or designs. If person develops any new technology or product and if does not file an application before launching of the same in the market then it comes in public domain and any other person can copy the same. Therefore it is very much important to get the protection for new technology or design under patent act or design act respectively to avail of the exclusive commercial benefits of the said patent or design.
Registration of the intellectual property offers nationwide protection to the same. If protection is sought in international market separate applications are required to be made in every country in which registration is sought.
About Trade mark
Trade Mark means a mark capable of being represented graphically and which is capable of distinguishing one’s goods and services from those of others. Trade mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of the goods, packaging or combination of color or any combination thereof. It also includes an abbreviation of a name.
Registration confers various rights on the proprietor/owner of the trade mark such as exclusive right to use the mark and to obtain relief in case of infringement of the trade mark etc.
It is of utmost importance to conduct a thorough trade mark search with the Trade Mark Registry because the use of any trade mark which is same or similar to any existing registered/unregistered trade mark is liable for legal prosecution entailing heavy financial losses and also loss of goodwill.
Yes. A trade mark can be used prior to registration. A symbol of ™ can be used along with the mark after application for registration has been made for the trade mark.
The registration of a trade mark is valid for a period of ten years but may be renewed from time to time in accordance with the provisions of the Trade Marks Act, 1999.
Marks which are used to identify the services and distinguish the services of one service provider from those of others are known as Service Marks. They may consist of words, symbols, letters and other devices.
Copyright means the exclusive right to do or authorise others to do certain acts in relation to:
- Literary, dramatic or musical works
- Computer programme
- Artistic work
- Cinematograph film
- Sound recording
Copyright in any work (literary, dramatic, artistic etc.) subsists as soon as the work is created and given a material form. Copyright is a protection given to the expression of an idea, and not to the idea itself. It is a form of intellectual property. It is a negative right afforded to the author who has used his judgement, skill, labour or capital for creation of the work, ie. it gives the author the right to prevent others from copying or reproducing the work.
The object of copyright law is to encourage authors, composers and artists to create original works by rewarding them with exclusive right for a limited period to reproduce the works and get financial benefits from them. On the expiry of that period the work enters the public domain and anyone can reproduce them without permission. Monopoly is granted to the author for the purpose of preventing other persons from unfairly benefiting themselves from the work of others.
The term of copyright varies for different kinds of work.
Copyright serves different types of industries such as information industry (books, magazines etc.), entertainment industry (cinema, television, dramatic works, musical works etc.)
Designing of a logo as a trade mark involves artistic work which is a subject of copyright Act and the logo can be registered under Copyright Act.
No. Registration of a copyright is not compulsory. Registration of Copyright is a prima facie evidence of the particulars entered therein. It is admissible as evidence in the court of law without further proof or production of the original.
If any work is carried out by a person other than the owner without a license from the owner or a competent authority under the Act, it constitutes infringement of the work. However if the work is carried out. after the term of the copyright has expired, it does not constitute infringement.
There are 3 types of remedies against infringement:
- Civil – injunction, damages and accounts, delivery of infringing copies and damages for conversion
- Criminal – imprisonment or fine or both, seizure
- Administrative – Moving the Registrar of Copyright to ban the import of infringing copies into India and delivery of such copies to the owner
- Sound recording