Exploring Intellectual Property Rights in India
Written by Meher Makwana
Intellectual property rights are those legal rights that are used for the protection of the creative ideas of the human mind. The intellectual property rights have recent recognition and protection of these rights is recent origin. These legal rights are exclusive rights to the inventor/ creator or his assignee to fully utilize his invention/creation for the given period of time. These rights are outlined in Article 27 of the Universal Declaration of Human Rights which provides for the right to benefit from the protection of moral and material interests resulting from authorship of specific, literacy or artistic production. The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literacy and Artistic Works. Both these treaties are administered by the World Intellectual Property Organization. India is a member of the World Trade Organization and committed to the Agreement on Trade-Related Aspects of Intellectual Property.
The need for Intellectual property rights was mainly to encourage Innovation as the legal protection of the new creation encourages the commitment of additional resources for further innovation, it also helps in the facilitation of the transfer of technology in the form of foreign direct investment, joint ventures and licensing. IPR also ensures that there is ease of doing business while promoting and protecting the Intellectual Property.
Intellectual property rights are in different forms: Copyrights, Trademarks, Patents, Geographical Indications; Design; Semiconductor integrated circuit layouts and Plant varieties.
The Copyright Act, of 1957; defines a copyright as (i) in relation to a dramatic work, the conversion of the work into a non-dramatic work; (ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise; (iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; (iv) in relation to a musical work, any arrangement or transcription of the work; Copyright protects the expression of an idea rather than the idea itself. The Copyright Act under section 17, clearly states that the author of the original work shall be the first owner of the work. Further, the owner has the right to license the copyright of their work to third parties through a written agreement.
The Trademark Act defines a trademark as a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and may include the shape of goods, their packaging and a combination of colours. The Trademark Act, of 1999 defines the validity of trademark registration as for an initial period of 10 years which can be renewed perpetually for successive periods of 10 years.
In the case of Clinique Labourites LLC & Gufic Ltd. & Anr, it is related to infringement of trademark and passing off i.e. selling goods by falsely misrepresenting the goods to belong to some other. In this, the plaintiff Clinique had registered a trademark and had come to know about a similar trademark ‘Derma Cliniq’ registered by the defendant. The plaintiff then filed a petition later before the court for an injunction regarding the infringement of its trademark by the defendant and for restraining the defendant from passing off its goods as that of the plaintiff.
However, under section 124 (1) of the Trademark Act 1994 any suit for infringement should be stayed by the court till the cancellation/rectification petition is finally decided and disposed of by the Registrar of the Trademark. But, at the same time, section 124(5) of the act states that it has the authority to pass an interlocutory order. The court held that identical and similar trademarks, though registered later; can be challenged by the owner of an earlier registered trademark. The court further held that pending rectification or infringement suit the court is allowed to pass such interim orders as it deems necessary and proper. The court therefore upon being primarily convinced about the invalidity of the registration of the defendant’s trademark restrained the defendant from using its registered trademark till disposal of the rectification petition by the Registrar of Trademark.
A patent is an intellectual property that protects any new invention, which is an exclusive right of the inventor and prevents other people from unauthorizedly using and misappropriating the registered patent, a patent is granted for a term of 20 years from the date of filing of the application. It is important to also note that a patent for a new invention is registered only if the invention is ‘novel’ or ‘original’. With rapid advancement in patent laws, several countries favour patent protection for software innovation. The Indian Patent law does not contain any specific provision regarding the protection of computer software, but are still working on it to make it any part of the act.
In the case of Novartis v. Union of India (2013), the Novartis Pharmaceutical Company applied for patenting a drug ‘Gleevec’ which was rejected by the Indian patent office. This court held that there was no invention done and a mere discovery of an already existing drug does not amount to the invention as Novartis has not shown any evidence of any therapeutic efficacy of its modified medicine over the already existing drug which was in the public domain since 1993, which is the mandatory condition under section 3(d) Of the Patents Act, 1970.
There are other acts to name which include the Design Act of 2000, the Geographical Indication of Goods [Registration and Protection] Act, of 1999, The Protection of Plant Varieties and Framers’ Right Act, 2001 and the Semiconductor Integrated Circuits Layouts- Design Act,2000.
It is obvious that the management of IP and IPR is a multidimensional task and calls for many different actions and strategies that need to be aligned with national laws and international treaties and practices. It is no longer driven purely by a national perspective. IP and its associated rights are seriously influenced by the market needs, market response, cost involved in translating IP into commercial venture and so on. In other words, trade and commerce considerations are important in the management of IPR. Different forms of IPR demand different treatment, handling, planning, and strategies and engagement of persons with different domain knowledge such as science, engineering, medicine, law, finance, marketing, and economics.
Each industry should evolve its own IP policies, management style, strategies, etc. depending on its area of speciality. The pharmaceutical industry currently has an evolving IP strategy. Since there exists an increased possibility that some IPRs are invalid, antitrust law, therefore, needs to step in to ensure that invalid rights are not being unlawfully asserted to establish and maintain illegitimate, albeit limited, monopolies within the pharmaceutical industry. Still, many things remain to be resolved in this context.
Keywords: Exploring Intellectual Property Rights in India, Exploring Intellectual Property Rights, Exploring Intellectual Property Rights in Todays world.
