CHAPTER – 9

SUMMARY OF INTELLECTUAL
PROPERTY

9.1. Patents
Definition: Patent is an exclusive right granted for an innovation
that generally provides a new way of doing something or offers a
new technical solution to a problem.
Eligibility Criteria: Invention must be novel (new; not in the
public domain), not obvious to the person (s) skilled in the art and
must be of industrial use.
Acts & Laws: In India, Patents are governed by the Patent Act,
1970.
Administration: The administration of matters pertaining to patents
is carried out by the Office of CGPDTM, under DPIIT, Ministry of
Commerce and Industry, GoI.
Right: A patent owner has the right to decide who may or may not
use the patented invention.
Validity: Patent Rights are protected for a period of 20 yrs. In
return, the process of the invention must be disclosed inthe public
domain.
Exceptions: As per Section 47 of the Act, a patent may be used by
any person for teaching and research purposes. It will not be
considered an infringement.
Items that cannot be patented: According to The Patent Act,
1970, the following items fall under the category of no-patentability
criteria: a discovery, scientific theory or mathematical method; a
computer program; a presentation of information; a procedure for
surgical or therapeutic treatment, or diagnosis, to be practised on
humans or animals; Software and business methods; Medical
methods; Perpetual motion machines; Inventions which are contrary
to Law or Mortality or injurious to public health; and Mere
arrangement or re-arrangement of known devices.

233
Treaties /Conventions/Agreements: To ensure and regulate the
hassle-free exchange of IPR related activities amongst all the
nations, the United Nations (UN) has created an organization called
the World Intellectual Property Organization (WIPO) in Geneva.
This agency is at the forefront of imparting knowledge about IP and
governs international filing and registration of IP through various
Conventions and Treaties like Paris Conventions, Patent
Cooperation Treaty (PCT), Budapest Treaty, Strasbourg Agreement
Concerning the International Patent Classification, Patent Law
Treaty, etc.
Additional Information:
 Patents are awarded not only for major scientific breakthrough
but also for minor improvements over existing inventions.
 Avoid public disclosure of an invention before patenting:
Generally, an invention that has been either published or
publicly displayed cannot be patented, as the claimed invention
will lose the ‗Novelty‘ criterion.
 In our daily life, we use many patented items, such as
toothbrush, toothpaste, shoes, pen, eyeglasses, textiles, mobile
phones, wristwatch, bicycle, scooter, car, television, cold drinks,
beverages and many more.
 A single product may contain several inventions (patents) e.g.
the laptop computer, car, and mobile phone contain scores of
inventions, working together.
 ‗Prior Art Search‘ (information lying in the public domain
before the filing of the patent application) is a critical step prior
to the filing of the Patent application.
 There is no such term as ‗Universal Patent‘ or ‗World Patent‘ or
‗International Patent‘ as the patent rights are territorial. An
application for a patent must be filed with a ‗Patent Office‘ of
the country in which one wishes to seek patent protection.
 If one wishes to seek patent protection in several countries
worldwide, it is preferred to file an international patent under
the Patent Cooperation Treaty (PCT).
 In general, Indian residents are required to file the patent
234
 application first in India.
9.2. Copyrights and Related Rights
Definition: ‗Copyrights‘ refer to the legal rights provided by law to
the original creator of the work in the fields of literature and
computer software. The ‗Related Rights‘ encompasses the author‘s
work in the fields of dramatics, sound recording, film/video
recordings, paintings, architecture, etc.
Eligibility Criteria: To qualify for Copyright protection, a work
must exist in some physical (or tangible) form. The Copyright
work has to be original i.e. the author created it from independent
thinking void of duplication. It may appear similar to already
existing works but should not be the same. The original work may
lack in quality or quantity or aesthetic merit or all these parameters;
still, it will pass the test of copyrightable work.
Acts & Laws: Copyright Act, 1957 of India. This Act provides
rights of reproduction, communication to the masses, adaptation and
translation of the work.
Administration: The administration of matters pertaining to
Trademarks is carried out by the Office of CGDPDTM, Department
for Promotion for Industry and Trade (DPIIT) under the Ministry of
Commerce and Industry, GoI.
Rights: Copyrights provide exclusive rights to the author in the
areas of publication, distribution, and usage. A Copyright owner
enjoys two types of rights i.e. Economic Rights (or Proprietary
Rights) and Moral Rights (or Personal Rights). Economic Rights
are associated with financial benefits accruing from the sale of
copyrights. Moral Rights include ‗Right of Paternity‘ and ‗Right of
Integrity‘. The ‗Right of Paternity‘ - even if the Copyright has been
licensed to another party, the original author of the work retains the
right to claim authorship. The ‗Right of Integrity‘- the original
author has the right to prevent misuse of the work e.g.
alterations/additions/deletions in work resulting in misrepresentation
of the said work or harming the honour and reputation of the author.
Validity Period: In general, the validity of Copyright is for 60
years. This period starts either from the year after the death of the
author (in case of literature, dramatic, musical and artistic works) or

235
from the date of publication of the work (in case of cinematograph
films, sound recordings, photographs, posthumous publications,
works of government and works of international organisations).
Exceptions to Rights: The Act provides for certain exceptions to
infringement of Copyright, and is termed as ‗Fair Use Doctrine‘. A
few examples of ‗Fair Use Doctrine‘ are the use of copyrighted
work for personal use i.e. studies or research, reproduction of the
work by teachers or scientific researchers, making copies (up to 3)
of copyrighted material and playing songs/music during bonafide
religious ceremonies including a marriage function.
Items that cannot be registered as Copyrights: The works not
under the jurisdiction of Copyrights include ideas, concepts, facts,
titles, names, slogans, short phrases, short word combinations,
methods, or factual information. Certificates are not considered as
Copyrightable subject matter as there is not much scope for
creativity.
Treaties/Conventions/Agreements: India is a member of the
following Conventions: Berne Convention for the Protection of
Literary and Artistic Works, 1886; Universal Copyright Convention,
1952. Rome Convention is for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations, 1961;
TRIPS Agreement, 1995.
Enforcement: Using the copyrighted work without the consent of
the copyright owner is termed ‗infringement‘. The owner can take
legal action against the infringement of his rights.
Additional Information:
 In India, the following classes of Copyrights exist: Literature
(Books, Essays, Research articles, Oral speeches, Lectures,
Computer Programme, Software, Databases); Dramatics
(Screenplays, Dramas); Sound Recordings (Recording of
sounds); Artistic (Drawing, Painting, Logo, Map, Chart,
Photograph, Work of Architecture, Engraving, Craftsmanship);
Musical: Musical notations). A musical work need not be
written down to enjoy Copyright protection. Cinematograph
Films (visual recording such as motion pictures, TV
programmes; sound recording), etc.

236
 The Copyright symbol © (the letter C in a circle), or the word.
‗Copyright‘, or the abbreviation ‗Copr.‘ The elements for sound
recordings generally require the same three elements, except the
symbol is ℗ (the letter P in a circle) instead.
 The duration of the existence of the physical form may vary
from a very short period to many years. Even hurriedly
scribbled notes for an impromptu speech is considered
copyrightable material.
 It is not necessary to register a work to claim Copyright. Once a
work is created via any medium, the work receives automatic
Copyright safety. There is no formal request to be submitted to
the office of the Copyright, for acquiring Copyright.
 Copyright registration does not confer any rights. It is merely a
prima facie proof of an entry in respect of the work in the
Copyright register maintained by the Registrar of Copyrights.
 The person who created the work is considered as the first
(original) holder (owner) of the copyright.
 In case the author is an employee and has been contracted to do
the work by a proprietor (of the company/firm/society
/organization, etc.), the owner of the Copyright shall be the
proprietor.
 The person delivering a speech is the first owner of the
Copyright.
 There can be more than one legal holder of a single copyright
e.g. a musical sound recording has many rights holders, such as
the lyricist, music composer, singer, musicians and sound
recorders.
 The Copyright registration for a Website, as a whole, is not
possible. However, different components of a website can be
granted Copyright registration.
 A computer or mobile App qualifies for Copyright registration.
An Application (App) is a complete, self-contained computer
program designed to perform a specific task.

237
 Creative work is not protected and enforced automatically
worldwide because Copyright laws are territorial by nature i.e.
Laws are valid only within the country in which they have been
created. To secure protection to Indian works in foreign
countries, the author needs to apply separately to each country
or through dedicated international ‗Conventions on Copyright
and Neighbouring (related) Rights‘, provided a country is a
member of such Conventions.
 Copyrights and Internet:One should be careful of Copyright/fair
use principles when downloading material from the internet.
Note that material may have been placed on the internet without
the author‘s permission.
 If someone swipes your picture/song/video from the internet
and uses it (without seeking your consent), it is a Copyright
infringement.
9.3. Trademarks
Definition: A Trademark (or Trade Mark) is a unique symbol that is
capable of identifying as well as differentiating products or services
of one organization from those of others. The word ‗Mark‘ stands
for a sign, design, phrase, slogan, symbol, name, numeral, devise or
a combination of these. Essentially, the Trademark is anything that
identifies a brand to a common consumer.
Eligibility Criteria: Distinctiveness - it should be unique and
should not be having similarities to the existing marks.
Descriptiveness -Trademark should not be describing the
description of the concerned goods or services. However,
descriptive words may be registered if they acquire ―secondary
meaning‖, such as the brand name ‗Apple‘ of a company
manufacturing electronic gadgets.
Acts & Laws: In India, Trademarks are governed under The
Trademarks Act, 1999 and ruled under Trademarks Rules, 2002.
Administration: The administration of matters pertaining to
Trademarks is carried out by the Office of CGPDTM, GoI under
DPIIT.
Rights: Following rights are conferred to a Trademark holder: Right

238
to exclusive use; Right to seek statutory remedy against an
infringement; Right of registered trademark holder of the identical
trademark; Right to assign; and Right to alter registered trademark.
Validity: In India, a registered Trademark is valid for 10 years. The
period can be extended every 10 years, perpetually.
What cannot be registered as Trademarks: The marks which
cannot distinguish the goods or services of one person from that of
another cannot be registered; Descriptive trademarks cannot be
registered;hurt religious sentiments, are obscene cannot be
registered; Well-known Trademark cannot be registered even if the
goods are not similar.
Treaties/Conventions/Agreements: The Madrid Agreement for
International Registration of Marks (1891); Nice Agreement for
International Classification of Goods and Services (1957); the
Trademark Law Treaty (TLT) (1994); Vienna Agreement (1973) for
the Classification of Figurative Marks.

Additional Information:
Designation of Trademark Symbols

Represents that the Trademark is unregistered. This

mark can be used for promoting the goods of the
company.
Represents that the Trademark is unregistered. This
mark can be used for promoting brand services.
Represents a registered Trademark/Service. The
applicant of the registered Trademark is its legal
owner.
Classification of Trademarks: Goods and Services under
Trademarks are classified as per the ‗Nice Agreement‘ (1957)
administered by WIPO.
Registration of a Trademark is Not Compulsory: However,
registration provides certain advantages to the proprietor of the
Trademark. In case of legal suits, a registered Trademark can serve
as potent evidence of the lawful proprietorship of the Trademark.
No legal course of action can be taken against the unlawful use of
an unregistered Trademark.
239
Types of Trademark Registered in India: Distinctive General
Word (‗Apple‘, an IT company); (Distinctive Personal Names
(‗Ford‘, an Automotive company); Picture (Allegator, a textile
company); Number (‗4711‘, a perfume company); Slogan (‗Drink it
to believe it‘, a cold drink company). Sound or smell is registrable
as a mark, as long as it is distinct and can be reproduced graphically.
9.4. Industrial Designs
Definition: The word ‗Design‘ is defined as the features of shape,
configuration, pattern, ornament or composition of lines or colours
applied to any article. The main object of registration of industrial
Designs is to protect and incentivize the original creativity of the
originator and encourage others to work towards the art of
creativity.
Eligibility Criteria: Design must be novel or original and should be
significantly distinguishable from the already registered Designs
existing in the public domain.
Acts and Laws: In India, Industrial Designs are governed under
‗The Designs Act‘, 2000 and ‗Design Rules‘, 2001 and have been
amended from time to time.
Administration: The administration of matters pertaining to
Industrial Designs is carried out by the Office of CGPDTM, GoI
under DPIIT.
Rights: Registration of Design ensures the exclusive rights of the
applicant on the Design. The Design registration confers a
monopolistic right to the proprietor by which he can legally exclude
others from reproducing, manufacturing, selling, or dealing in the
said registered Design without his prior consent. The owner can
prevent the registered Design products from piracy and imitation.
Validity: The registered Designs are protected for 10 years in India
and can be extended by 5 years after making a renewal application.
Items which cannot be registered as Industrial Design: Flags,
emblems or signs of any country, and any Industrial Design which
is against public moral values.
Treaties/Conventions/Agreements: Hague Agreement for
international registration (1925); Locarno Agreement (1968) for

240
international classification
Additional Information: Designs are registered in different classes
as per the Locarno Agreement, 1968.

9.5. Geographical Indications

Definition: A GI is defined as a sign which can be used on products
belonging to a particular geographical location/region and possesses
qualities or a reputation associated with that region. In GI, there is a
strong link between the product and its original place of production.
Eligibility: The goods should be essentially attributable to any
geographical origin and in case where such goods are manufactured
things, one of the activities of either the production or of processing
or preparation of the goods concerned must take place in a territory,
region or locality, as the case may be.
Acts/Laws: In India, GI is governed under the Geographical
Indications of Goods (Registration & Protection) Act, 1999 and the
Geographical Indications of Goods (Registration & Protection)
Rules, 2002. The two common methods of protecting a GI are Sui
generis systems (i.e. special regimes of protection) and under
certification or collective mark systems.
Administration: The administration of matters pertaining to GI is
carried out by the Office of CGDPDTM, under DPIIT, Ministry of
Commerce and Industry, GoI.
Rights: A GI holder has the right to gift, sell, transfer/grant a
license, mortgage, or enter into any other arrangement for
consideration regarding their product. The holder of GI has the right
to use and take legal action against a person who uses the product
without his consent.
Validity: Time limit of the GI tag is 10 years and can be renewed
from time to time for a further period of 10 years each.
Items that cannot be registered as GI: Non-Registerable GIs are
the ones that would be contrary to any law, contains scandalous or
obscene matter and any matter likely to hurt the sentiments of
society.

241
Treaties/Conventions: International Agreements for GI
Administered by WIPO - Madrid Agreement (1891) for the
International Registration of Marks; Nice Agreement (1957) for the
International Classification of Goods and Services for the
Registration of Marks; Lisbon Agreement (1958) for the Protection
of Appellations of Origin.
Additional Information:
 The ownership/holders of GI (registered) can be the producers,
as a group/association/cooperative society, or association or in
certain cases, government too.
 GI products registered in India belong to the domains of
handicrafts, agricultural, foodstuffs, alcoholic beverages, etc.
The first GI tag in India was granted in 2004 to Darjeeling Tea
and the latest being Kashmir Saffron and Manipur Black Rice
(Chakhao) in 2020. A total of 370 GI have been registered in
India till May 2020. Nearly 58% of these belong to handicrafts,
followed by agriculture (30%). Other categories belong to
foodstuff, manufacturing, and natural goods. A few standout GI
are Mysore Silk (Karnataka), Kashmir Pashmina (Jammu &
Kashmir), Banaras Sarees (Uttar Pradesh), Phulkari (Punjab,
Haryana, Rajasthan). Tirupathi Laddu (Andhra Pradesh).
 Registered GI products are granted a tag, which is printed on the
registered products. The tag confirms the genuineness of the
product in terms of its production (by set standards) and
location of production.
 GI registered products can be grown/produced in any part of the
world using standards laid down by the GI Registry. However,
these products cannot be labelled as GI as they are not
produced/manufactured in a specific geographical location, as
mentioned in the official records maintained by the Office of
GI.
 GI certified goods are classified under 34 different classes.
 India is among the geographically and traditionally rich
countries. The scope of generating GI products in India is
enormous. However, till May 2020, a total of 370 GI have been
registered in India.

242
Generic GI - When a GI-certified product becomes more popular by
the name of the origin of the place, it is termed as Generic GI. For
example, Camembert Cheese. Camembert is the name of the place
in France where this special cheese is produced. In food places,
merely saying the word Camembert denotes Camembert cheese.
Homonymous GI - When two or more products, which have been
granted GI status, are spelt or pronounced alike, but their source of
origin is different (usually in different countries), such GI are
termed as Homonymous GI. One of the examples of the
homonymous GI is a wine named ‗Rioja‘, which is a GI for wine
produced in two countries (Argentina and Spain). In such a case, the
applicants (of GI) need to prove different characteristics of their
products. People may get confused if two Homonymous GI‘s are
being sold at the same place.
Difference between GI and Appellation of Origin - In the case of
an appellation of origin, the link with the place of origin is very
strong. This generally means that the raw materials should be
sourced in the place of origin and that the processing of the product
should also take place there. In the case of GI, a single criterion
attributable to the geographical origin is sufficient, be it quality or
another characteristic of the product – or even just its reputation.
9.6. Trade Secrets
Definition: Trade Secret deals with a practice or a process of a
company that is generally not known outside the company. The
confidential secret provides the company with a commercial
advantage over its rivals and is often a product of internal R&D.
Trade Secret document comprises of ‗technical information‘
involving manufacturing processes, experimental research data,
formulas, recipes, software algorithms, and ‗commercial
information‘ comprising of marketing strategies and a list of
product/process recipients. The document may also have a
combination of elements, each of which by itself is in the public
domain, but where the combination, which is kept secret, provides a
competitive advantage.
Eligibility: For a product/process to qualify as a Trade Secret, the
information should be of commercial value, should not be in the
public domain, and known to a limited group of people. The legal

243
owner/s of the secret must ensure taking reasonable steps to keep
the secret information and agreements (if any) confidential.
Acts/Laws: In India, there is no specific legislation regarding Trade
Secrets. However, these are governed under Section 27 of ‘The
Indian Contract Act, 1872.
Administration: This aspect of IP is governed under the Indian
Contract Act and administered by the Ministry of Law and Justice.
Rights: The owner of the Trade Secret has the legal right to use the
secret for economic gains and can sell the secret to anybody for any
length of time.
Validity: Contrary to the other forms of IP, a Trade Secret
protection has no time period. Many Trade Secrets are more than
100 years old. In addition, there is no formal registration
procedure/form to be followed/filled for maintaining a Trade Secret.
In simple terms, Trade Secrets are protected without registration.
Also, there is no annual renewal fee for keeping the Trade Secret a
secret.
Exceptions: A trade secret owner cannot stop others from using the
same technical or commercial information if anyone develops such
information independently by himself through the reverse
engineering or marketing analysis or the owner himself declares it
publically.
Non-Trade Secret Items: The items having toxic substances
cannot be protected under trade secrets.
Enforcement: If somebody acquires the secret through illegal
means or indulge in dishonest use of a Trade Secret acquired
through legal agreement, the rightful owner can approach the court
to seek an injunction and/or claim financial damage accrued as a
result of dishonest commercial practice. If a person/company
independently develops a process/technology/product which is
already a Trade Secret, it is not considered a violation of Trade
Secret protection. The newly developed process/technology can also
claim Trade Secret rights.
Treaties/Conventions/Agreements: Paris Convention, 1883 for the
Protection of Industrial Property and TRIPS Agreement, 1995 deal
partly with the protection of Trade Secret.
244