Intellectual Property is defined under Article 2 (viii) of the Convention establishing the World Intellectual Property Organization, 1967 which is an inclusive definition rather than being exclusive definition and safeguards rights such as the rights which relates to protection of literary, artistic and scientific invention, phonograms, and broadcasting in all fields of human endeavor, scientific discoveries, designs, trademarks, service marks, and trade names and position, protection against unfair trade practices, and such other rights which results from intellectual property in the business, science, literature or artistic fields.1
In India intellectual property has been recognized under various legislation such as Trade Marks Act, 1999, The Patents Act, 1970 (as amended in 2005), The Copyright Act, 1957, The Protection of Plant Varieties and Farmers' Right Act, 2001,The Designs Act, 2000, Geographical Indications of Goods (Registration and Protection) Act, 1999, and The Information Technology Act, 2000.
A patent is a right in the form of intellectual property that is granted to the owner to exclude others from making, using, selling and invention for 20 years in exchange for published public disclosure of the invention. The idea behind patents is to encourage creative and unique inventions. Intellectual property is the field of law which integrates and encompasses trademark, patent and copyright law.
There are different criteria for an invention to be allowed to be patented.
Invention has to be unique and one of its kind, which also means that any addition in current technology cannot be patented. This new invention should be valuable to a common man and should not include any illegal or unethical things. A law of nature or a scientific principle cannot be patented. Likewise, any new progress in the agricultural and medicinal department cannot be patented.
After the application is submitted, a request for examination has to be made in the Indian patent office. A report is issued which gives the patentee an opportunity to clear all the objections. This has to be done within six months. After this is done, the patent is granted.
A foreigner can also file for grant of patent in India because India Is a part of Paris Convention for the Protection of Industrial Property, 1883 and the Patent Cooperation Treaty (PCT), 1970.
It is necessary that the patent is renewed regularly through payment of patent renewal fees during these 20 years under section 53 of the Indian patent act. This payment is done to the Indian Patent Office before each year has expired, that is, before the commencement of the next year. No form is required to be filled for it. For the same, the patent number and date and year of the patent is required.
No separate fee needs to be paid for patents of addition, unless it becomes an independent patent.
In case one requires an extension, it is granted for a period of up to 6 months by payment of the penalty fee.
The late fee for a six-month extension increases with each month after the patent has expired.
Individual owner – Rs.4 80 per month, small entity – Rs.1200 per month, large entity – Rs.2400 per month. In case of e-filing, the charges are more- Individual owner – Rs.528 per month, small entity – Rs.1320 per month, Large – Rs 2640 per month. The patent is passed for the use of the public if the renewal fee is not paid on time.
In case of non-renewal of the patent, the patentee can also file form 15 within 18 months for the restoration of the patent. Evidence should be attached for proving that the design was not intentionally. This process is relatively time-consuming and very expensive
1) A patent is much more valuable and has more commercial value and profit margins.
2) A patent makes your idea a brand, Toaster is a higher market share.
3) One can commercialise on the patent, because it gives them the Freedom of being exclusive.
4) Patenting or invention also saves you from theft.
Trademarks are one of the major Intellectual Property Rights in India, the others being patents, copyright and designs. Role of trademark Registrar is to administers that rules of Trademarks Act, 1999, acts are useful as a resource and information centre and is a answer to matters relating to trade marks in the country. According to Section 2(zb) of the Act, “trade mark” a trademark means a mark which is capable of being used graphically and which is used for differentiating the goods or services of one individual from the others who are selling or proving same services and could include look of goods, their wrapper and combination of colors. Trademarks play an important role in product recognition of a particular brand and hence it is very important to register trademarks for brand protection and to reduce unauthorised usage of the brand. The trademarks also help customers to identify products of the brand they want and to distinguish it from other brands. For classification of goods or services, India follows the widely recognised Nice Classification, which was established by an agreement at the Nice Diplomatic Conference at Geneva in 1977. There are 45 classes in the Nice classification where classes 1 to 34 are for goods and classes 35 to 45 are for services. These serve as an important tool to ascertain the exact nature of goods and services, for which trademark is obtained.
1. Under section 18 of the Trademark act, 1999 an application should be filed with registrar for getting registration of the mark. Single application can be made for registration in different classes of the mark.
2. On the satisfaction of the registrar, he may accept or reject the application for the mark. It absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think fit.
3. After filing application under section 18, registrar takes another 18 months for examining the mark under section 19 of the act. Registrar if found an error in the mark then a chance is given for correction of the error to applicant.
4. An error free mark is published in the journal for giving chance to other trademark holder for raising concerns for infringement and if any opposition is raised then unless such opposition is cleared it can’t not be registered
5. If above steps are cleared then applied mark can be registered as trademark under section 23 of the trademark act.
Registration of patent and trade mark is not mandatory on our country but it is something that is advised by the legal attorneys. IPR laws when compared with laws such as IPC and Companies act is fairly new law and is still at developing stage in India. Registration process for both patent and trademark is online mostly and less cumbersome, so it makes process transparent and fast. Saying that there are flaws and limitation on what could be registered and what can’t be registered, such as there is no separate laws for trade secrets. These limitations are addressed by many pioneers in the industry and relevant steps have being taken to make registration of IPR more stream line and transparent. As Intellectual Property such as Trademark, Patent and trade secrets are as important to business growth as land and machine.
Ayantika Mondal @ Prime Legal