IPR are largely territorial rights, except copyright, which is global in nature in the sense that it is immediately available to all the members of the Berne Convention. These rights are awarded by the State and are monopoly rights, implying that no one can use these rights without the consent of the right holder. It is important to know that these rights must be renewed from time to time for keeping them in force, except in the case of copyright and trade secrets. IPR has a fixed term, except trademark and geographical indications, which can have an indefinite life provided that these are renewed after a stipulated time specified in the law by paying official fees. Trade secrets also have an infinite life, but they do not have to be renewed. IPR can be assigned, gifted, sold, and licensed like any other property. Unlike other moveable and immoveable properties, these rights can be simultaneously held in many countries at the same time. These rights, especially patents, copyrights, industrial designs, IC layout design, and trade secrets, are associated with something new or original and, therefore, what is known in the public domain cannot be protected through the rights mentioned above. Improvements and modifications made over known things can be protected. It would, however, be possible to use geographical indications for protecting some agriculture and traditional products.
IPR is majorly divided into 4 categories in India.
- Copy Rights
COPY RIGHT- Section 22 of the copyright act says that copyright is given for the lifetime of a person and 60 years after the death of the person and once the tenure is expired it is available in the Public Domain means that it can be used and re-used for free by anyone without the permission from the copyright owner. In addition, the altered or translated version can also be copyrighted. once the copyrights are expired there are no rights left with the author or with the legal heirs over the work however limitations acts provide the time of 3 years to institute the suit against copyright infringement if it is infringed before the expiry of copyright.
Trademark- Trademarks are the "sign" registered to distinguish the goods or services of one enterprise from that of the other enterprises. Initially, Trademarks are given for 10 years, and once the validity of 10 years lapses, and the Company or enterprise wishes to continue the business, it can extend the rights over the trademark by the process of renewal. The trademark can be renewed for 'n' number of times but after the lapse of the original registration or of the last renewal of registration, as the case may be. Once the prescribed time is expired before the registrar shall send notice to the registered proprietor in the prescribed manner and conditions as to payment of fees.
Provided that the registrar shall not remove the trademark from the register if the proprietor makes an application with fees including surcharge within 6 months from the date of expiry and where the trademark has been removed from the register the registrar shall restore the trademark once the proprietor fills the application in prescribed manner with prescribed fees and surcharge.
Union Of India V. Malhotra Book Depot lapsed trademark can be renewed.
Design- Designs are registered for a maximum of 15 years i.e., under section 11(1) fresh application is registered for 10 years the registered proprietor of the design shall be entitled to copyright protection for ten years, Section 11(2), once the design is lapsed design proprietor, can extend the design registration for the second time for 5 more years through the process specified in the Design Act 2000. Section 13 of the Design act says when the design lapsed after 10 years it can be renewed within 1 year from the date on which it lapsed but the application of renewal of design shall also be attached with an application which shall contain a statement in the prescribed manner stating the circumstances which led to delay to pay the prescribed fees. The design after the expiry is available in the public domain and once it gets expired the design proprietor has no right to protect its design unless the design was infringed before the expiry of design and the proprietor got to know after the expiry of design then the suit can be filed within 3 years from the date of cause of action.
Patent-Patents are the exclusive rights given for the invention. It is given for invention which is novel and has an inventive step involved in it. Before giving a patent in India three tests are to be done for the invention to be patentable.
Firstly- The invention is non-obvious.
Second- The invention must be novel.
Third- It must be of industrial usage.
In India Patent are generally given for 20 years and if a patent is expired there is no provision for extension of time beyond the said period, the patentee cannot sue for infringement of patent once the patent is expired but there is a chance to sue a person even after the expiry of the patent if patentee receives the knowledge of patent infringement during the period of 20 years within 3 years from the date of infringement Section 64 Patents Act 1970, Patents also gets expired once it gets revoked on the certain grounds by the court.
- Patent granted to a person who is not entitled in this act
- Patent was obtained wrongfully
- Patent claimed is not new
- Patent claim is not an invention under this act.
- Patent does not involve any inventive steps
- Patent is not useful
- Obtained on false suggestions or representations etc.
|1.||Who seeks protection?||Inventors||Owner of goods or services.||Author of the work||Designer, Inventors|
|2.||What does it protect?||Inventions that are novel, have been an inventive step and have industrial applicability.||Any name, word, slogan, symbol, design, and/or image that identifies a business or brand||Any original works of authorship, such as books, articles, songs, photographs||Any new, original, and ornamental design for an article of manufacture that does not affect the article's functions.|
|3.||Registration||Necessary, so as to gain the exclusive rights.||Registration is compulsory in India, only/registered marks can use trademark symbols. Though \, India provides a common law remedy of passing off.||Registration is not mandatory if registered serves as prima facie evidence.||Registration is not mandatory article manufactured with more than 50 pieces ceases to be a copyright.|
|4.||Duration||20 years from the date of fillings.||Protection for 10 years can be further renewed||Protection for Author's life+60 years after the death of an author.||Protection for 10 years can be renewed once for 5 years.|
IPR is the instrument that protects the creations of intellects since it gives exclusive rights to an applicant for its creation it also gives the right to sue if his rights are infringed, and it also takes away the rights once the IPR is expired.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.