- Dr.

Thomas Kurma
 Outline
- Intellectual Property Rights

- What is covered under IPR, Types, Infringement and

protection

- WIPO (World Intellectual Property Organization)

- Laws governing IPR

- Everyone of us want our hard work to be recognized especially
intellectual creativity.

- This recognition and protection enhances innovation and

invention of new things.

- Intellectual property rights existed from the ancient times, for

instance, a symbol was stamped on the bricks in Rome by the
brickmakers and Sybaris granted monopoly for one year on
cooking a delicious dish to its creator.

- In the modern world Intellectual Property Rights are protected

under law in force, both nationally and internationally.

- Analysis of the consequences of infringement of certain

intellectual property rights.

- Over view of International conventions, agreements (TRIPS)

and organizations (WIPO) with regard to the protection of
Intellectual Property Rights.
- WIPO https://www.wipo.int/portal/en/index.html
- WTO https://www.wto.org/
 INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights (IPR): “are legal rights granted by

governments to encourage innovation and creative output.”

I INTELLECTUAL PROPERTY RIGHTS INCLUDE

COPYRIGHTS

P PATENTS

R TRADEMARKS

INDUSTRIAL DESIGNS

TRADE SECRETS

GEOGRAPHICAL INDICATION
 COPYRIGHT

Copyright (or author’s right): “Is a legal term used to describe

IPR the rights that creators have over their literary and artistic works.”

C - Works covered by copyright range from books, music,

O paintings, sculpture, and films, to computer programs,
P databases, advertisements, maps, and technical drawings.
Y
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Picture Source: WIPO

 Protected under copyright

Literary works such as

Novels, Poems, Plays, Reference works,
Newspaper articles;
IPR

C Computer programs, Databases

O
P Films, Musical compositions,
Y and Choreography
R
I
G Artistic works such as Paintings,
H Drawings, Photographs, and Sculpture
T
Architecture and

Advertisements, Maps, and

Technical drawings.
 Copyright protection extends: only to expressions, and not to
ideas, procedures, methods of operation or mathematical concepts
as such.

IPR Copyright may or may not be available: for a number of objects

such as titles, slogans, or logos, depending on whether they
contain sufficient authorship.
C
O Two types of rights under copyright
P
Y Economic rights: which allow the rights owner to derive financial
R reward from the use of their works by others; and
I
G Moral rights: which protect the non-economic interests of the
H author.
T
Most copyright laws state that the rights owner has the economic
right to authorize or prevent certain uses in relation to a work or,
in some cases, to receive remuneration for the use of their work
(such as through collective management).
 The economic rights owner of a work can prohibit or authorize:
- Its reproduction in various forms, such as printed publication or
sound recording
- Its public performance, such as in a play or musical work
IPR - Its recording, for example, in the form of compact discs or
DVDs
C - Its broadcasting, by radio, cable or satellite;
O - Its translation into other languages; and
P - Its adaptation, such as a novel into a film screenplay.
Y
R
Moral rights: Include the right to claim authorship of a work and
I the right to oppose changes to a work that could harm the creator's
G reputation.
H
T Registration of copyright:
In most of the countries, and according to the Berne Convention,
copyright protection is obtained automatically without the need for
registration or other formalities.
 Voluntary registration of works: Most countries nonetheless
have a system in place to allow for the voluntary registration of
IPR works. Such voluntary registration systems can help solve
disputes over ownership or creation, as well as facilitate financial
C transactions, sales, and the assignment and/or transfer of rights.
O
- WIPO does not offer a copyright registration system or a
P
searchable copyright database.
Y
R To obtain certified proof of existence a creative work:
I Using WIPO PROOF complements voluntary copyright
G registration systems by offering creators the possibility of
H recording and digitally certifying possession of the work. This
T digitally encrypted proof, which cannot be modified, can certify
the existence of the work at a moment in time.
 PATENT

Patent: Is an exclusive right granted for an invention, which is a

product or a process that provides, in general, a new way of doing
something, or offers a new technical solution to a problem.

- To get a patent, technical information about the invention must be

disclosed to the public in a patent application.
IPR
Protection under patent:
In principle, the patent owner has the exclusive right to prevent or
P stop others from commercially exploiting the patented invention.
A
T - In other words, patent protection means that the invention cannot be
E commercially made, used, distributed, imported or sold by others
N without the patent owner's consent.
T
Patent validity in other countries:
Patents are territorial rights. In general, the exclusive rights are only
applicable in the country or region in which a patent has been filed
and granted, in accordance with the law of that country or region.

Patent duration: The protection is granted for a limited period,

generally 20 years from the filing date of the application.
JAIPUR: Drawing inspiration from scientist Stephen Hawking,
a wheelchair-bound boy has invented a game of six-player
circular chess. The boy, Hridayeshwar Singh Bhati has got the
game's design patented in his name in 2012, making him the
youngest patent-holder in India at that time.
 TRADEMARK
Trademark: Is a sign capable of distinguishing the goods or
services of one enterprise from those of other enterprises.

Protection under trademark:

IPR At the national/regional level, trademark protection can be obtained
through registration, by filing an application for registration with the
T national/regional trademark office and paying the required fees.
R
A - At the international level, there are two options:
D - File a trademark application with the trademark office of
each country in which one seeks protection, or
E
- Use WIPO’s Madrid System.
M
A Trademark registration:
R In principle, a trademark registration will confer an exclusive right
K to the use of the registered trademark. This implies that the
trademark can be exclusively used by its owner, or licensed to
another party for use in return for payment. Registration provides
legal certainty and reinforces the position of the right holder, for
example, in case of litigation.
 Trademark protection duration:
The term of trademark registration can vary, but is
usually ten years. It can be renewed indefinitely on
payment of additional fees. Trademark rights are private
rights and protection is enforced through court orders.
IPR
Kinds of trademarks that can be registered:
T A word or a combination of words, letters, and numerals
R can perfectly constitute a trademark. But trademarks may
A also consist of drawings, symbols, three-dimensional
D features such as the shape and packaging of goods, non-
E visible signs such as sounds or fragrances, or color
M shades used as distinguishing features – the possibilities
A are almost limitless.
R
Proof of Trademark:
K WIPO PROOF can prove in-market use of a trademark at
an exact point in time by producing immutable digital
evidence of such use. This is useful, and essential in
certain jurisdictions, for applying for new trademarks or
renewing existing trademark registrations.
IPR

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 Cases with regard to the infringement

Zara Food vs Zara Fashion

- A case of food industry vs fashion for the brand name Zara.

- It is a renowned fashion brand having major operations across the

world found a restaurant operating in Delhi under the same name.

- It is highly possible that any consumer would confuse one for the
other and take into consideration that the restaurant was started by
the fashion brand.
- And this what Delhi High Court ruled out. Zara had a presence in
India since 2010 when it opened its first store through a joint
venture and has also applied for a few trademarks in India.

- The restaurant was forced to change its name and now it operates
under the name of Tapas Bar.
Yahoo! Inc. v. Akash Arora & Anr
- It was for the first time that the Delhi High Court held a registered
domain name equivalent to the trademark giving it the entitled, equal
protection.

- The defendant, in this case, was ‘Yahoo India!’ for protecting their
domain name. Now, this was identical and even phonetically similar
to the plaintiff’s trademark ‘Yahoo!’

- The court believed that people will be deceived into thinking that
both the domain will carry the same source.

- Here, the defendant was of an argument that it has put a notice,

stating the same, on the website. Though, the court didn’t approve the
disclaimer to be sufficient since the nature of the internet is such that
it is difficult to rectify the domain name simply by putting up a
disclaimer.

- Also, Yahoo! was quite renowned even globally and the court
observed that ‘Yahoo India’ of the defendants is almost similar
except that it uses the suffix ‘India’.

- The concern of deception was large and since Yahoo! was the
Plaintiff, the injunction was done in their favor.
 INDUSTRIAL DESIGN
IPR
Industrial design: In a legal sense, an industrial design
I constitutes the ornamental aspect of an article.
N
- An industrial design may consist of three dimensional features,
D
such as the shape of an article, or two dimensional features, such
U as patterns, lines or color.
S
T Protection under Industrial Design:
R In principle, the owner of a registered industrial design or of
I a design patent has the right to prevent third parties from making,
A selling or importing articles bearing or embodying a design which
L is a copy, or substantially a copy, of the protected design, when
such acts are undertaken for commercial purposes.
D
Products that can benefit from Industrial Design protection:
E Industrial designs are applied to a wide variety of products of
S industry and handicraft items: from packages and containers to
I furnishing and household goods, from lighting equipment to
G jewelry, and from electronic devices to textiles. Industrial designs
N may also be relevant to graphic symbols, graphical user interfaces
(GUI), and logos.
IPR

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IPR

I Industrial Designs protection:

N In most countries, an industrial design needs to be registered in
D order to be protected under industrial design law as a “registered
U design”. In some countries, industrial designs are protected under
S patent law as “design patents ”.
T
R WIPO PROOF provides proof of existence and proof of active use
that may be required by these laws to protect the designs.
I
A - Industrial design laws in some countries grant – without
L registration – time- and scope limited protection to so-called
“unregistered industrial designs”.
D
E - Depending on the national law and the kind of design, industrial
S designs may also be protected as works of art under copyright
I law.
G
N
Video Source: WIPO
IPR GEOGRAPHICAL INDICATION

G Geographical indication (GI): Is a sign used on products that

E have a specific geographical origin and possess qualities or a
O reputation that are due to that origin.
G
R
- In order to function as a GI, a sign must identify a product as
A
P originating in a given place. In addition, the qualities,
H characteristics or reputation of the product should be essentially
I due to the place of origin. Since the qualities depend on the
C geographical place of production, there is a clear link between the
A product and its original place of production.
L
Geographical Indication provides:
I
A geographical indication right enables those who have the right
D
I to use the indication to prevent its use by a third party whose
C product does not conform to the applicable standards. (For
A example, in the jurisdictions in which the Darjeeling
T geographical indication is protected, producers of Darjeeling tea
I can exclude use of the term “Darjeeling” for tea not grown in
O their tea gardens or not produced according to the standards set
N out in the code of practice for the geographical indication.)
IPR
- However, a protected geographical indication does not
G enable the holder to prevent someone from making a
E product using the same techniques as those set out in the
O standards for that indication. Protection for a geographical
G indication is usually obtained by acquiring a right over the
R
sign that constitutes the indication.
A
P
H Type of products that can use Geographical
I Indications:
C Geographical indications are typically used for agricultural
A products, foodstuffs, wine and spirit drinks, handicrafts,
L and industrial products.
I
Protection under Geographical Indication:
D
I Three main ways :
C 1. Sui generis systems (i.e. special regimes of
A protection);
T 2. Collective or certification marks; and
I 3. Methods focusing on business practices, including
O administrative product approval schemes.
N
 TRADE SECRET
IPR
Trade Secret:
Trade secrets are intellectual property (IP) rights on confidential
T information which may be sold or licensed.
R
A - In general, to qualify as a trade secret, the information must be:
D - commercially valuable because it is secret,
E - be known only to a limited group of persons, and
- be subject to reasonable steps taken by the rightful holder
S of the information to keep it secret, including the use of
E confidentiality agreements for business partners and
employees.
C
R -The unauthorized acquisition, use or disclosure of such secret
E information in a manner contrary to honest commercial practices
T by others is regarded as an unfair practice and a violation of the
trade secret protection.
Video Source: WIPO
Video Source: WIPO
 Information that can be protected by Trade Secrets:
IPR In general, any confidential business information which provides an
enterprise a competitive edge and is unknown to others may be
protected as a trade secret.
T
R - Trade secrets encompass both technical information, such as
A information concerning manufacturing processes, pharmaceutical test
D data, designs and drawings of computer programs, and commercial
E information, such as distribution methods, list of suppliers and
clients, and advertising strategies.
S
E - A trade secret may be also made up of a combination of elements,
each of which by itself is in the public domain, but where the
C
combination, which is kept secret, provides a competitive advantage.
R
E - Other examples of information that may be protected by trade
T secrets include financial information, formulas and recipes and
source codes.
 Protection under Trade Secret:
Depending on the legal system, the legal protection of trade secrets
forms part of the general concept of protection against unfair
IPR competition or is based on specific provisions or case law on the
protection of confidential information.
T - While a final determination of whether trade secret protection is
R violated or not depends on the circumstances of each individual
A case, in general, unfair practices in respect of secret information
D include industrial or commercial espionage, breach of
E contract and breach of confidence.

S - A trade secret owner, however, cannot stop others from using the
E same technical or commercial information, if they acquired or
developed such information independently by themselves through
C
their own R&D, reverse engineering or marketing analysis, etc.
R Since trade secrets are not made public, unlike patents, they do
E not provide “defensive” protection, as being prior art. (For
T example, if a specific process of producing Compound X has been
protected by a trade secret, someone else can obtain a patent or a
utility model on the same invention, if the inventor arrived at that
invention independently.)
IPR
WIPO services for Trade Secrets:
Software algorithms, formulas, recipes, manufacturing processes,
T
lists of clients and business plans, can all be protected by law, but
R only if you can prove you gain economic value from them and that
A you have taken steps to preserve their confidentiality and prevent
D misuse or misappropriation. It is difficult for the owner of a trade
E secret to seek an injunction or claim damages: how can you prove
that you possessed and used a trade secret at a certain point in
S time, if you always kept it secret?
E
C You can solve this problem with WIPO PROOF. It not only
provides evidence that you possessed a trade secret at a given point
R
in time, it can also discourage possible theft or misuse by signaling
E to partners and employees that protective measures are in place.
T
 Intellectual Property Laws in India

Copyright
- The Copyright Act, 1957 (amended in1982, 1984,1992, 1994 &
1999)

Patents
- The Patents Act, 1970 (amended in 1999 & 2005)

Trademarks
- Trade Marks Act, 1999 (amended in 1994, 1996 & 2000)

Industrial Designs
- The Designs Act, 2000
- The Semiconductor Integrated Circuits Layout Design Act, 2000

Geographical Indication
- The Geographical Indications of Goods (Registration & Protection)
Act, 1999
- The Biological Diversity Act, 2002
- The Protection of Plant Varieties and Farmers' Rights Act, 2001.

- Official Website for IPR in India: https://ipindia.gov.in/

 Infringement of Trademark

Section 29 of the Trademarks Act 1999 defines, “Infringement of

registered trade marks.—(1) A registered trade mark is infringed by
a person who, not being a registered proprietor or a person using by
way of permitted use, uses in the course of trade, a mark which is
identical with, or deceptively similar to, the trade mark in relation
to goods or services in respect of which the trade mark is registered
and in such manner as to render the use of the mark likely to be
taken as being used as a trade mark.”

Cases of Infringement
Apple v. Samsung
- The patent battle started in 2011
- Resulted in a $1 billion ruling in Apple’s favor.
- But it didn’t end there. A series of appeals pushed the dispute to
the Supreme Court and back, as the companies continually
rehashed which patents were infringed.
- The case revolved around a number of design and utility
patents for basic functions of a smartphone, like

- tap to zoom and the home screen app grid.

- But while the fight was hashed out using specific patents, the
battle was ultimately about whether Samsung copied Apple in
the early days of smartphones to gain an edge.

- The jury decided that, in many ways, it had.

- the Samsung had to pay $539 million for Apple.

- Samsung filed to appeal but the two companies were able to

reach an agreement before it could be litigated again.
Paytm v. Paypal
- Both the brand names begin with the same word ‘Pay’.

- The logos of both companies use the same colour combination.

In fact, it's very easy to get mystified by the 2 logos.

- Moreover, both the entities deal with the same type of business
activity i. e. online payments and transactions, which further
widens the conflict between the 2 parties in question.

- It was held that pay pal is used as an international online

payment and transaction service whereas paytm is used within
India for the same online payment and transaction service. The
outreach of pay pal is international whereas pay tm is of within
India. As a result, held that it didn’t infringe the rights of pay pal.
 Conclusion

- Avoid using the trademarks or designs similar to another

company in order to avoid unwelcomed consequences

- For instance, Samsung and Apple have been in a business

relationship since the year 2008 and since then Apple has been
one of Samsung's biggest clients, this relationship in no way
functions when it comes to the protection of intellectual
property rights.

- It is very important to pay attention to the IPR. Apple in its

statement said, “We believe deeply in the value of design,”.
“This case has always been about more than money.” It is to
do with the creative and innovative hard work of an individual.

- One needs to take care that one doesn’t infringe the intellectual
property rights of others and take steps to safeguard one’s own
intellectual property rights by acquiring adequate knowledge
of the laws governing them in a particular country.