TRIPS Agreement

Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on international

IP rights.
•The TRIPS Agreement is also described as a “Berne and Paris-plus” Agreement.
•TRIPS came into force in 1995, as part of the agreement that established the World
Trade Organisation (WTO).
•TRIPS establishes minimum standards for the availability, scope, and use of seven forms
of intellectual property namely, trademarks, copyrights, geographical indications, patents,
industrial designs, layout designs for integrated circuits, and undisclosed information or
trade secrets.
•It applies basic international trade principles regarding intellectual property to member
states.
•It is applicable to all WTO members.
•TRIPS Agreement lays down the permissible exceptions and limitations for balancing
the interests of intellectual property with the interests of public health and economic
development.
•TRIPS is the most comprehensive international agreement on IP and it has a major role
in enabling trade in creativity and knowledge, in resolving trade disputes over intellectual
property, and in assuring WTO members the latitude to achieve their domestic policy
objectives.
•It frames the IP system in terms of innovation, technology transfer and public welfare.
•The TRIPS Council is responsible for administering and monitoring the operation of the
TRIPS Agreement.
•TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs
and Trade (GATT) in 1986–1994.

Assignment of Copyrights: Section 18 of Copyrights Act

The owner of the copyright of a work has the right to assign his copyright to any other person.
The effect of assignment is that the assignee becomes entitled to all the rights related to the
copyright to the assigned work.[2] However, mere grant of right to publish and sell the
copyrighted work amounts to publishing right and not assignment of copyright.
Where the assignee of a copyright becomes entitled to any right comprised in the copyright, he
shall be treated as the owner of the copyright in respect of those rights. The assignor shall also
be treated as the owner of copyright with respect to unassigned rights. The legal representatives
of the assignee shall be entitled to the benefits of assignment, if the assignee dies before the
work comes into existence.
 Copyright in Literary work
Literary works are protected by copyright as they are present in physical form. Literary works
include books, magazines, newspapers, journals, anthologies, novels, computer software and
programmes, letters, e-mails, poetry, lyrics of songs, tables and compilations. Literary works
are not only confined to the above mentioned things but also abstracts, encyclopedia entries,
dictionary meanings and individual poems are protected within the shield of copyright laws.

Duration of Copyright: In case of a copyright pertaining to literary work both published and
unpublished the creator/ author owns the copyright which extends to his lifetime plus 60 years
after his death.

Ownership :The author or the creator of a work is generally regarded as an owner of a work in
case of literary works.

Video piracy

Video piracy is the act of copying video images and sound that are protected by a
copyright, without the permission or consent of the copyright owner. As technology improves
and changes the ways in which video and audio media are stored and distributed, this type of
piracy has changed as well. This form of copyright infringement is typically illegal, regardless
of how the pirated content is going to be used. Piracy is often cited as a major factor in
contributing to the expense of making films and television, and numerous efforts have been
made to prevent this type of piracy.

In general, video piracy refers to any act of copying images and audio that is protected by
copyright law without the permission of the copyright owner. This means if someone makes a
copy of a movie and sells that copy, then he or she has pirated that video and has likely broken
the law. Similarly, someone who copies a movie or television program and distributes that copy
without financial gain is still typically guilty of piracy and may have still broken the law.

WIPO
The World Intellectual Property Organisation or WIPO is a global body for the promotion and
protection of Intellectual Property Rights (IPR).
•It acts as a global forum for IP Services.
•WIPO is a self-funded agency of the United Nations.
•With 192 members, WIPO’s motto is to encourage creative activity, to promote the
protection of intellectual property throughout the world.
•It is at present headed by Francis Gurry, who is its Director-General. WIPO is
headquartered in Geneva, Switzerland.
•WIPO has its origins in the United International Bureaux for the Protection of
Intellectual Property (BIRPI), which was established in 1893.
WIPO’s Mandate
‘WIPO is dedicated to developing a balanced and accessible international Intellectual Property
(IP) system, which rewards creativity, stimulates innovation and contributes to economic
development while safeguarding the public interest.’
Functions of WIPO The World Intellectual Property Organisation (WIPO) was established
with the intent to perform the following functions:
•To assist the development of campaigns that improve IP Protection all over the globe
and keep the national legislations in harmony.
•Signing international agreements related to Intellectual Property Rights (IPR) protection.
•To implement administrative functions discussed by the Berne and Paris Unions.
•To render legal and technical assistance in the field of IP.
•To conduct research and publish its results as well as to collect and circulate
information.
•To ensure the work of services that facilitate the International Intellectual Property
Protection.
•To implement other appropriate and necessary actions.
The Berne Convention,

The Berne Convention, adopted in 1886, deals with the protection of works and the rights of
their authors. It provides creators such as authors, musicians, poets, painters etc. with the means
to control how their works are used, by whom, and on what terms. It is based on three basic
principles and contains a series of provisions determining the minimum protection to be
granted, as well as special provisions available to developing countries that want to make use of
them.

(1) The three basic principles are the following:

(a) Works originating in one of the Contracting States (that is, works the author of which is a
national of such a State or works first published in such a State) must be given the same
protection in each of the other Contracting States as the latter grants to the works of its own
nationals (principle of "national treatment").

(b) Protection must not be conditional upon compliance with any formality (principle of
"automatic" protection).

(c) Protection is independent of the existence of protection in the country of origin of the work
(principle of "independence" of protection). If, however, a Contracting State provides for a
longer term of protection than the minimum prescribed by the Convention and the work ceases
to be protected in the country of origin, protection may be denied once protection in the country
of origin ceases.
 What is Honest Concurrent Use of Trade Mark?
An Honest Concurrent Use of a Trade Mark is said to exist where two distinct entities have
coexisted for an extended period of time while honestly utilizing the same or a strikingly
similar representation of the same name or mark that is registered. It is important to note that in
India, even the unregistered Trade Marks have been given statutory protection by the virtue of
Sections 34 and 35 of the Trade Marks Act, 1999.
Thus, the concept of honest concurrent use acts as a barrier of protection for those entities who
have been honestly using such marks and/or names that are same or have a strikingly similar
representation, thereby also allowing for the same to be registered as per S.12 of the Trade
Marks Act, 1999, provided that it satisfies the Registrar that it is a result of special circumstance
and not an ordinary case of infringement.

What is Deceptive Similarity

The phenomenon of Deceptive similarity whether of Trademark, Trade name or Logo stirs the
anger of well established giants when they encounter the local entrepreneurs blatantly earning
on their goodwill. The word ‘similar’ is not defined in The Trade marks Act, 1999 but the act
defines ‘deceptively similar’ under section 2(1)(h) as a mark shall be deemed to be deceptively
similar to another mark if it so nearly resembles the other mark as to be likely to deceive or
cause confusion. Whether there is Deceptive similarity or not depends on many factors which
can be understood with recent case laws and defenses therein which highlights its different
interpretation.
Geographical Indications
Italian Parmigiano, Mexican Tequila, French Roquefort, Bikaneri Bhujia, Kolhapuri Chappals,
Mysore Silk are all some examples of Geographical Indications and appellations of everyday
life. The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI
Act), in Section 2(e), defines the term “geographical indication” as –
“An indication which identifies such goods as agricultural goods, natural goods or
manufactured goods as originating, or manufactured in the territory of a country, or a region or
locality in that territory, where a given quality, reputation or other characteristic of such goods
is essentially attributable to its geographical origin and in case where such goods are
manufactured goods one of the activities of either the production or of processing or
preparation of the goods concerned takes place in such territory, region or locality, as the case
may be.”

This is the legally accepted definition of geographical indication in India since the Act came
into force since the 15th of September, 2015.

In simpler terms, GI is a status accorded to a good which is unique to a particular region or

area, and are originated from there. These goods have a reputation for their quality. They are
associated with a sense of legitimacy and trust simply because they have the tag of belonging to
that region. For example, Basmati rice is known for its unique aroma and long grains. It is
unique to the Indo-Gangetic plains. Seven states of India, after a long drawn legal battle have
been accorded with the status of Geographical Indication (GI) in 2016.
The following types of goods are covered under the ambit of GI –

•Agricultural (example, Basmati rice)

•Natural (example, Makrana marble)
•Handicraft or of any industry (example, Kashmiri pashmina)
•Food stuff (example, Dharwad pedha)
This has been mentioned in Section 2(g) of the GI Act.

Trade secret in intellectual property

Intellectual property rights consist of trade secrets that can be licensed or sold. For being a trade
secret, it needs to be kept secret, very few people should know it. The protection of such trade
secrets is on the owner. He has the responsibility for the protection. These trade secrets are kept
confidential, hidden, secreted. For the protection of the competitive advantage of the business,
we always relied or were dependent upon secrecy. Trade secret means something which is
happening in the company and should not be known outside the company.

Examples of trade secret

1.The secret formula for coca-cola (the most famous trade secret all over the world,
this is not revealed since it is not patented).
2.Google inc.’s search algorithm (this exists in code and is regulated and improved
regularly).
3.Recipes for food products ( special ingredients).
4.Processes for the conversion of raw materials to used materials.
5.Technological processes.
6.Formula for WD-40.
7.Chemical formulas for cleaning products.