UNIT IV INTELLECTUAL PROPERTY RIGHTS

Intellectual Property – The concept of IPR, Evolution and development of concept of IPR,
IPR development process, Trade secrets, utility Models, IPR & Bio diversity, Role of WIPO
and WTO in IPR establishments, Right of Property, Common rules of IPR practices, Types
and Features of IPR Agreement, Trademark, Functions of UNESCO in IPR maintenance.

4.1 Intellectual Property

There is third type of property what we call intellectual property. It is the “

Property created by application of human mind”.
OR
Intellectual property is a term referring to a number of distinct types of creation of
the mind for which property rights are recognized in the corresponding fields of law
OR
The product / process / idea which is outcome of the brain of a person and can be
used on commercial scale for benefit of human kind is called intellectual property.
OR
Intellectual property refers to creations of the mind; inventions, literary and artistic
works, and symbols, names, images, and designs used on commercial Scale.
The main features of intellectual property are given below:
• It is measured in terms of new ideas, processes, products, inventions and
innovations developed by a person.
• It requires lot of intellectual inputs in terms of thinking, planning and fine tuning of
new ideas/products/processes etc.
• It requires considerable amount of funds and other resources to develop new
products/processes.
• The main problem with intellectual property is that it can be copied, reproduced
and used by others resulting in loss of inventor. Hence protection of intellectual
propertyis essential so that the inventor can derive maximum benefits from his
invention.
4.2 The concept of IPR,

The Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual
activity in the industrial, scientific and artistic fields. Countries have laws to protect
intellectual property for two main reasons. One is to give statutory expression to the moral
and economic rights of creators in their creations and such rights of the public in access to
those creations. The second is to promote, as a deliberate act of government policy, creativity
and the dissemination and application of its results and to encourage fair trading which would
contribute to economic and social development.

Generally speaking, IP law aims at safeguarding creators and other producers of intellectual
goods and services by granting them certain time- limited rights to control the use made of

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those productions. These rights do not apply to the physical object in which the creation may
be embodied but instead to the intellectual creation as such. IP is traditionally divided into
two branches: “industrial property and copyright”. The convention establishing the World
Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Art.
2(viii) provides that

“intellectual property shall include rights relating to:

1) literary, artistic and scientific works:

2) performances of performing artists, phonograms and broadcasts;

3) inventions in all fields of human behaviour;

4) scientific discoveries;

5) industrial designs;

6) trademarks, service marks, and commercial names and designations;

7) protection against unfair competition and all other rights resulting from intellectual
activity
in industrial scientific, literary or artistic fields”.
The areas mentioned under (1) belong to the copyright branch of intellectual property. The
areas mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on
copyright. The areas mentioned under 3, 5 and 6 constitute the industrial property branch of
IP. The areas mentioned may also be considered as belonging to that branch.

Scope of Intellectual Property Rights

Intellectual property rights include copyright, patent, trademark, geographic indication of

origin, industrial design, trade secrets, database protection laws, publicity rights laws, laws
for the protection of plant varieties, laws for the protection of semi-conductor chips (which
store information for later retrieval), etc.

There is a conventional mode of classification of intellectual property as industrial property

and copyrights. Industrial properties include inventions (patent), property interest on minor
invention (Utility model certificate) and commercial interests (Trade Marks, trade names,
geographical indications, and industrial design), plant breeder rights, biodiversity, etc.

Patents

A patent is a type of intellectual property right which allows the holder of the right to
exclusively make use of and sale an invention when one develops an invention. Invention is a
new process, machine, manufacture, composition of matter. It is not an obvious derivation of
the prior art (It should involve an inventive step). A person who has got a patent right has an
exclusive right. The exclusive right is a true monopoly but its grant involves an
administrative process.

Copyright

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It is an intellectual property which does not essentially grant an exclusive right over an idea
but the expressions of ideas which makes if different from patent law. Patent is related with
invention - technical solution to technical problems. Copyright is a field which has gone with
artistic, literary creativity- creativity in scientific works, audio-visual works, musical works,
software and others. There are neighboring rights. These are different from copyright but
related with it – performers in a theatre, dancers, actors, broadcasters, producers of sound
recorders, etc. It protects not ideas but expressions of ideas as opposed to patent.

Copyright protects original expression of ideas, the ways the works are done; the language
used, etc. It applies for all copyrightable works. Copyright lasts for a longer period of time.
The practice is life of author plus 50 years after his/her life. Administrative procedures are
not required, unlike patent laws, in most laws but in America depositing the work was
necessary and was certified thereon but now it is abolished.

Industrial Design Law

Some call this design right (European) and some call it patentable design, industrial design
(WIPO and other international organization). A design is a kind of intellectual property which
gives an exclusive right to a person who has created a novel appearance of a product. It deals
with appearance: how they look like. Appearance is important because consumers are
interested in the outer appearance of a product. It is exclusively concerned with appearance,
not quality.

The principles which have been utilized in developing industrial design law are from
experiences of patent and copyright laws. It shares copyright laws because the design is
artistic. It shares patent law because there are scientific considerations. Design law subsists in
a work upon registration and communication. It makes them close to patent law since they are
also founded in patent law. Duration is most of the time 20 years like the patent law
trademark Rights law.

Trademarks Rights Law

It is a regime of the law giving protection to graphic representation to words or logos or

depending on the jurisdiction question such as sound or smells which are distinctive in nature
and serve as source identification. There is also a recent phenomenon which is representing
goods in their smell and sound. It is to be found on the goods associated with them. It enables
the customer to identify the goods from others. They serve as a source identifier. Trademarks
perform communication function. Once there is a valid representation, it gives the mark
owner an exclusive right. It begins with registration and publication of the mark. But there
are exceptions which serve what trademarks registered serve which are not registered. It
means
they deserve protection even though they are not registered. They exist forever so long as the
good with which they are associated continue to be sold. But they require renewal.

Geographic Indication

It is indications on products of the geographic origin of the goods. It indicates the general
source. The indication relates to the quality or reputation or other characteristics of the good.
For example, “made in Ethiopia” is not influenced by the geographical Indication.
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Geographical indications are sometimes called appellations of origin. For example, “Sheno
lega”, “Shampagne” (name of a region in France) are geographical indications.

Trade Secrets

It gives the owner of commercial information that provides a competitive edge the right to
keep others from using such information if the information was improperly disclosed to or
acquired by a competitor and the owner of the information took reasonable precautions to
keep it secret. It protects confidential secrets of some commercial value. The holder of the
secret wants this information to be protected; some protect the holder from an unauthorized
disclosure of the information. A tort law, unfair competition or contract law can protect such
information which is secret /confidential information/. The holder (owner) has to do his/her
best to keep the information secret. Trade secrets exist without registration as it is to make the
information public, for example, the formula of Coca Cola. Information that are protected in
trade secrets can be patentable if they are novel and non obvious. But it is, most of the time,
not to make the secret public. However, their full-fledged IP rights are contestable.

4.3 Evolution and development of concept of

IPR, Evolution and Scope of the IPR

The WIPO Programme in the year 1998-99 budget, were initiated to address the
growing concerns related to the Intellectual Property Rights, of the indigenous knowledge
holders. The Intellectual Property gave rise to duties, specifically for the owner of the IP that
are certain functions to be performed by them, in relation to their work or products. The
various laws that come under the ambit of Intellectual property umbrella did not emerge or
evolve together and they are as a fact, quite dissimilar in many aspects. Thus, the
international treaties and agreements promote the intellectual workers and labours and bring
together all the related laws of IP together.

The Intellectual Property Rights are distinguished from other rights because of the
nature of intangibility. It ensures the Right to Sue or take any legal action against the person,
who gains unauthorised access to his creation or innovation against the property. The scope
of the Intellectual Property Rights is a broad one. They help in balancing the nature of
innovator’s interest and the benefit of the public by, providing them an environment where,
innovation,
invention and creativity can flourish to the highest and can benefit all. The Intellectual
Property systems have a common form of internal appeal procedure against the violators of
IPR.

Apart, from the initiatives of Government for training judicial officers in matters such as IPR
matters, the laws are also, updated and amended to provide the efficient speedy trials to the
citizens. Like in India, The Cell for IPR Promotion and Management (CIPAM), which is a
government body works with WIPO and the National Judicial Academy (NJA), India, for
organising training sessions and sensitisation programmes on IPR’s for the High Court and
District Court judges. Thus, ensuring that the law system has a greater understanding on
matters like IPR and its assertion in the society . The National Intellectual Property Rights
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(IPR) Policy, 2016 was a vision project of Indian government, to guide the future
developments of the Intellectual Property and its Rights in the country. It seemed to place an
institutional mechanism for implementation and monitoring of developments in global as
well as national IPR’s.

4.4 IPR development process,

4.5 Trade secrets,

A trade secret is anything a formula, process, method, mechanism, tool,

pattern ordevice which the disclosing party desires to keep secret. Trade secrets usually
include such things as the manufacturing details for a product, variations or alternative
uses.

The main points about trade secret are briefly presented as follows:

1. There is no specific period for trade secret.

2. It may continue lifelong or for generations together.

3. There is no need of registration for trade secret.
4. It does not provide opportunity to others for improvement of innovation.
5. It is not applicable to books, equipments, plant varieties, designs which are
openly used.
What are the requirements of trade secret protection?
For the protection of trade secret, conditions vary from country to country, some
general standards exist which are referred to in Art. 39 of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS Agreement):

✓ The information must be secret (i.e. it is not generally known among, or readily
accessible to, circles that normally deal with the kind of information in question).
✓ It must have commercial value because it is a secret.
✓ It must have been subject to reasonable steps by the rightful holder of the
information to keep it secret (e.g., through confidentiality agreements).
4.6 utility Models,

A utility model is an exclusive right granted for an invention, which allows the right
holder to prevent others from commercially using the protected invention, without his
authorization for a limited period of time. In its basic definition, which may vary from one
country (where such protection is available) to another, a utility model is similar to a patent.
In fact, utility models are sometimes referred to as "petty patents" or "innovation patents."
Only a small but significant number of countries and regions provide the option of
utility model protection. At present, India does not have legislation on Utility models.
The main differences between utility models and patents are the following:

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 The requirements for acquiring a utility model are less stringent than for patents.
While the requirement of "novelty" is always to be met, that of "inventive step" or "non-
obviousness" may be much lower or absent altogether. In practice, protection for utility
models is often sought for innovations of a rather incremental character which may not meet
the patentability criteria.
The term of protection for utility models is shorter than for patents and varies from
country to country (usually between 7 and 10 years without the possibility of extension or
renewal).
In most countries where utility model protection is available, patent offices do not
examine applications as to substance prior to registration. This means that the registration
process is often significantly simpler and faster, taking on an average six months.
Utility models are much cheaper to obtain and to maintain. In some countries, utility
model protection can only be obtained for certain fields of technology, and only for
products but not for processes.
Utility models are considered suitable particularly for SMEs that make "minor"
improvements to, and adaptations of, existing products. Utility models are primarily used for
mechanical innovations.

The "Innovation patent," launched in Australia some time back was introduced as a
result of extensive research into the needs of small and medium-sized enteprises, with the aim
of providing a "low-cost entry point into the intellectual property system."
4.7 IPR & Bio diversity,

In simple terms, the diversity among various life forms within the Biosphere refers to
biodiversity. Biodiversity is the foundation of life on Earth. It is crucial for the functioning of
ecosystems which provide us with products and services without which we cannot live. By
changing biodiversity, we strongly affect human well-being and the well-being of every other
living creature.
Biodiversity is normally classified under 3 major categories:

ecosystem diversity, representing the principal bio geographic regions and habitats;
species diversity, representing variability at the level of families, genera and species; and
genetic diversity, representing the large amount of variability occurring within a species.
Diverse activities and actions have been taken by several stakeholders at local, state, national
and international level to conserve/protect the valuable resource such as biodiversity to draw
the benefits accrued in it for the society.
It is a well-established fact that developing countries are rich in the world’s flora and
fauna and 80 percent of the earth’s terrestrial biodiversity is confined to these countries,
which is the “raw material” for biotechnology, i.e., genes, folk varieties, land races to
develop new varieties by biotechnology. Until the advent of molecular biology and genetic
engineering, the success of plant breeding depended on access to genetic variability within a
species. Genetic engineering has, however, rendered the transfer of genes across sexual
barriers possible and has thus enhanced the economic value of biodiversity.
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 The developed countries are not rich in biogenetic resources but are better equipped
in research and development. They use the biogenetic resources accessed from the
developing countries. As a result, there is a beginning in the unprotected flow of genetic
information from the developing countries to the capital-rich west, and a protected flow in
the reverse direction mainly through patents and Plant Breeders’ Rights (PBR). It has both
visible and invisible impacts. Genetic erosion is one of the most important invisible impacts
that is in the long run manifested visibly with the loss of biodiversity.
The Convention on Biological Diversity (CBD) 1992:

Opened for signature at the Earth Summit in Rio de Janeiro in 1992, and entering into
force in December 1993, the Convention on Biological Diversity is an international treaty for
the conservation of biodiversity, the sustainable use of the components of biodiversity and the
equitable sharing of the benefits derived from the use of genetic resources. The interface
between biodiversity and intellectual property is shaped at the international level by several
treaties and process, including at the WIPO, and the TRIPS Council of the WTO. With 193
Parties, the Convention has near universal participation among countries. The Convention
seeks to address all threats to biodiversity and ecosystem services, including threats from
climate change, through scientific assessments, the development of tools, incentives and
processes, the transfer of technologies and good practices and the full and active involvement
of relevant stakeholders including indigenous and local communities, youth, NGOs, women
and the business community. The Cartagena Protocol on Biosafety is a subsidiary agreement
to the Convention. It seeks to protect biological diversity from the potential risks posed by
living modified organisms resulting from modern biotechnology.
The treaty defines biodiversity as "the variability among living organisms from all
sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are part; this includes diversity within species, between
species and of ecosystems."
The Convention reaffirms the principle of state sovereignty, which grants states
sovereign rights to exploit their resources pursuant to their own environmental policies
together with the responsibility to ensure that activities within their own jurisdiction or
control do not cause damage to the environment of other states. The Biodiversity Convention
also provides a general legal framework regulating access to biological resources and the
sharing of benefits arising from their use. India is a party to the Convention on Biological
Diversity (1992).
The Convention on Biological Diversity establishes important principles regarding
the protection of biodiversity while recognizing the vast commercial value of the planet's
store of germplasm. However, the expansion of international trade agreements establishing a
global regime of intellectual property rights creates incentives that may destroy biodiversity,
while undercutting social and economic development opportunities as well as cultural
diversity. The member countries were pressurized to change their IPR laws to conform with
the TRIPS agreement. 12 PP-IPRL&P India also followed the suit by placing in place legal
frameworks for the management of biodiversity and Intellectual property laws. Following
India’s ratification of the Convention on Biological Diversity (CBD) at international level,
the Biological Diversity Act, 2002 was adopted. The Biological Diversity Act aims at
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conservation of biological resources and associated knowledge as well as facilitating access
to them in a sustainable manner and through a just process.
4.8 Role of WIPO and WTO in IPR establishments,

World Intellectual Property Organization

WIPO introduction:
i. The World Intellectual Property Organization (WIPO) is a specialized agency of
the United Nations with 193 member states. The mission of WIPO is to develop
a balanced and accessible international intellectual property (IP) system, which
rewards creativity, stimulates innovation and contributes to economic
development while safeguarding the public interest.
ii. WIPO was established by the WIPO Convention in 1967 with a mandate from
its Member States to promote the protection of IP throughout the world
through cooperation among states and in collaboration with other international
organizations. Its headquarters are in Geneva & Switzerland. The Director
General is Francis Gurry.
iii. India is a member of World Intellectual Property Organization a specialized agency of
UN in the area of Intellectual Property. The nodal activities related to WIPO were
transferred to this Department from Department of Higher Education in 2005.
iv. The member states of the World Intellectual Property Organization (WIPO) on
May 8, 2020, appointed by consensus Mr. Daren Tang as the Organization's next
Director General, with Mr. Tang's six-year term beginning on October 1, 2020.
v. Mr. Tang’s appointment by the General Assembly, WIPO’s highest governing
body, followed his nomination by the WIPO Coordination Committee in March,
2020. Mr. Tang will succeed Mr. Francis Gurry, who has served as WIPO's
Director General since October 1, 2008.
What does WIPO do?
a. WIPO cooperates with intellectual property (IP) offices, users and other
stakeholders to develop shared IP tools, services, standards, databases and
platforms.
b. This technical infrastructure is designed to help IP institutions collaborate more
effectively and deliver more efficient services to their users; as well as
enabling innovators and information-seekers worldwide to freely access the
knowledge contained in the IP system.
c. WIPO provide human capacity building across the full spectrum of intellectual
property (IP) rights: patents, trademarks, industrial designs, geographical
indications and copyright. Training takes place through in-depth programs
offered by the WIPO Academy or tailor-made technical workshops.
Legal Frameworks under WIPO
a. Patent Cooperation Treaty (PCT) under Paris Convention assists applicants in
seeking patent protection internationally for their inventions, helps patent offices
with their patent granting decisions, and facilitates public access to a wealth of
technical information relating to those inventions. By filing one international
patent application under the PCT, applicants can simultaneously seek protection
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 for an invention in a large number of countries.
b. Madrid Protocol: The Madrid System for the International Registration of
Marks is governed by the Madrid Agreement, concluded in 1891, and the
Protocol relating to that Agreement, concluded in 1989. The system makes it
possible to protect a mark in a large number of countries by obtaining an
international registration that has effect in each of the designated Contracting
Parties
c. Vienna Agreement establishes an International Classification of the Figurative
Elements of Marks called the Vienna Classification for marks that consist of,
or contain, figurative elements.
d. Nice Agreement concerns the International Classification of Goods and Services
for the Purposes of the Registration of Marks.
e. Locarno Agreement establishes an International Classification for Industrial
Designs called the Locarno Classification.
f. WIPO Copyright Treaty (WCT) is a special agreement under the Berne
Convention which deals with the protection of works and the rights of their
authors in the digital environment. The Treaty also deals with two subject
matters to be protected by copyright: (i) computer programs, whatever the
mode or form of their expression; and (ii) compilations of data or other material
("databases").
g. WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of
two kinds of beneficiaries, particularly in the digital environment: (i) performers
(actors, singers, musicians, etc.); and (ii) producers of phonograms (persons or
legal entities that take the initiative and have the responsibility for the fixation of
sounds).
h. WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore is, in accordance with its
mandate, undertaking text-based negotiations with the objective of reaching
agreement on a text(s) of an international legal instrument(s), which will
ensure the effective protection of traditional knowledge (TK), traditional
cultural expressions (TCEs) and genetic resources (GRs).
i. The Standing Committee on Copyright and Related Rights (SCCR) was set up in
the 1998-1999 biennium to examine matters of substantive law or harmonization
in the field of copyright and related rights.
j. Hague System for the International Registration of Industrial Designs provides a
practical business solution for registering up to 100 designs in 74 contracting
parties covering 91 countries, through the filing of one single international
application
k. Lisbon System for the International Registration of Appellations of Origin and
Geographical indications offers a means of obtaining protection for
an appellation of origin or a geographical indication in the contracting
parties through a single registration procedure and one set of fees.

WIPO and WTO

WIPO expanded its role and further demonstrated the importance of intellectual

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property rights in the management of globalized trade in 1996 by entering into a cooperation
agreement with the World Trade Organization (WTO). It provides for co-operation
concerning the implementation of the TRIPS Agreement, such as notification of laws and
regulations and legal-technical assistance and technical co-operation in favour of developing
countries. In July 1998, a joint initiative to help developing countries meet their TRIPS
obligations till the year 2000 was launched.

Mention should be made that today WIPO, administers 24 treaties (three of those
jointly with other international organizations) and carries out a rich and varied program of
work, through its member States and secretariat, that seeks to:
• harmonize national intellectual property legislation and procedures,
• provide services for international applications for industrial property rights,
• exchange intellectual property information,
• provide legal and technical assistance to developing and other countries,
• facilitate the resolution of private intellectual property disputes, and
• marshal information technology as a tool for storing, accessing, and using valuable
intellectual property information.

4.9 Right of Property,

What are intellectual property rights (IPR)?

Intellectual property rights are the rights given to persons over the creations of their
minds. They usually give the creator an exclusive right over the use of his/her
creation for a certain period of time.
OR
Intellectual property rights are like any other property right. They allow creators,
or owners, of patents, trademarks or copyrighted works to benefit from their own work or
investment in a creation.
Forms of Intellectual Property Rights
The Intellectual Property Rights are broadly divided into two groups, viz., Primary
Rights and Sui-generis Rights. These are briefly discussed below:
1. Primary Rights
Primary rights include, Copyrights, Patents, Trademarks, Trade Secret, Trade
names, Domain names, Industrial Designs, Geographical Indications etc.
2. Sui-generis Rights
Sui-generis refers to things of their own kind or things with unique characteristics.
Such rights include Database Rights, Mask work, Plant Breeders Rights, Traditional
Knowledge, Moral Rights and Supplementary Protection Certificate.
Who are Responsible for Administration of IPRs in the Country?
• Patents, designs, trademarks and geographical indications are administered by the
Controller General of Patents, Designs and Trademarks which is under the control
of the Department of Industrial Policy and Promotion, Ministry of Commerce and

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 Industry.
• Copyright is under the charge of the Ministry of Human Resource Development.
• The Act on Layout-Design of Integrated Circuits is administered by the Ministry of
Telecommunication and Information Technology.
• Protection of Plant Varieties and Farmers' Rights Authority, Ministry of
Agriculture administers the Act on Plant Variety.
What is History Behind Intellectual Property Rights?
The first low of patent was passed in 1474 in Venice, which gave monopoly rights
to artisans for their inventions.
In 1623,the house of commons of U. K. passed the act of Proprietorship.
George Alfred De Penning is supposed to have made the first application for a
patent in India in the year 1856.
On February 28, 1856, the Government of India promulgated (Circulated)
legislation to grant what was then termed as "exclusive privileges (rights/freedom)
for the encouragement of inventions of new manufactures" i.e. the Patent Act.
On March 3, 1856, a civil engineer, George Alfred De Penning of 7, Grant's Lane,
Calcutta petitioned (appealed/requested) the Government of India for grant of
exclusive privileges for his invention- "An Efficient Punkah Pulling Machine".
On September 2, De Penning, submitted the Specifications for is invention
along
with drawings to illustrate it's working. These were accepted and the invention wasgranted
the first ever Intellectual Property protection in India.
4.10 Common rules of IPR practices

Common Rules The Convention lays down a few common rules which all the contracting
States must follow. The more important are the following:
Patents

1. Patents granted in different contracting States for the same invention are independent of
each other.
2. The granting of a patent in one contracting State does not oblige the other
contracting States to grant a patent.
3. A patent cannot be refused, annulled or terminated in any contracting State on the ground
that it has been refused or annulled or has terminated in any other contracting State.
4. The inventor has the right to be named as such in the patent.

5. The grant of a patent may not be refused, and a patent may not be invalidated, on the
ground that the sale of the patented product, or of a product obtained by means of the
patented process, is subject to restrictions or limitations resulting from the domestic law.
6. Each contracting State that takes legislative measures providing for the grant of
compulsory licenses to prevent the abuses which might result from the exclusive rights
conferred by a patent may do so only with certain limitations. Thus, a compulsory license
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based on failure to work the patented invention may only be granted pursuant to a request
filed after three or four years of failure to work or insufficient working of the patented
invention and it must be refused if the patentee gives legitimate reasons to justify his inaction.
7. Forfeiture of a patent may not be provided for, except in cases where the grant of a
compulsory license would not have been sufficient to prevent the abuse. In the latter case,
proceedings for forfeiture of a patent may be instituted, but only after the expiration of two
years from the grant of the first compulsory license.
Marks

(1) The Paris Convention does not regulate the conditions for the filing and registration of
marks which are therefore determined in each contracting State by the domestic law.
Consequently, no application for the registration of a mark filed by a national of a contracting
State may be refused, nor may a registration be invalidated, on the ground that filing,
registration or renewal has not been affected in the country of origin. Once the registration of
a mark is obtained in a contracting State, it is independent of its possible registration in any
other country, including the country of origin; consequently.
(2) The lapse or annulment of the registration of a mark in one contracting State does
not affect the validity of registration in other contracting States.
(3) Where a mark has been duly registered in the country of origin, it must, on request,
be accepted for filing and protected in its original form in the other contracting States.
(4) The registration may be refused in well-defined cases, such as when the mark would
infringe acquired rights of third parties, when it is devoid of distinctive character, when it is
contrary to morality or public order, or when it is of such a nature as to be liable to deceive
the public.
(5) If, in any contracting State, the use of a registered mark is compulsory, the registration
cannot be canceled until after a reasonable period, and only if the owner cannot justify his
inaction.
(6) Each contracting State must refuse registration and prohibit the use of marks which
constitute a reproduction, imitation or translation, liable to create confusion, of a mark
considered by the competent authority of that State to be well known in that State as being
already the mark of a person entitled to the benefits of the Convention and used for identical
or similar goods.
(7) Each contracting State must likewise refuse registration and prohibit the use of marks
which consist of or contain without authorization, armorial bearings, State emblems and
official signs and hallmarks of contracting states, provided they have been communicated
through the International Bureau of WIPO.
(8) The same provisions apply to armorial bearings, flags, other emblems, abbreviations and
names of certain inter-governmental organizations.
(9) Collective marks must be granted protection.

4.11 Types and Features of IPR Agreement,

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Berne Convention for the Protection of Literary and Artistic Works

The Berne Union has an Assembly and an Executive Committee. Every country
member of the Union which has adhered to at least the administrative and final provisions of
the Stockholm Act is a member of the Assembly. The members of the Executive Committee
are elected from among the members of the Union, except for Switzerland, which is a
member ex officio.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in
1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at
Stockholm in 1967 and at Paris in 1971, and was amended in 1979.
The Convention rests 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.
Basic Principles

The three basic principles are the following:

1. Works originating in one of the contracting States must be given the same protection
in each of the other contracting States as the latter grants to the works of its own
nationals.
2. Such protection must not be conditional upon compliance with any formality.

3. Such protection is independent of the existence of protection in the country of origin of the
work.
If, however, a contracting State provides for a longer term 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.
The minimum standards of protection relate to the works and rights to be protected, and
the duration of the protection:
1. As to works, the protection must include every production in the literary, scientific
and artistic domain, whatever may be the mode or form of its expression.
2. Subject to certain permitted reservations, limitations or exceptions, the following
are among the rights which must be recognized as exclusive rights of authorization:
• The right to translate,

• The right to make adaptations and arrangements of the work,

• The right to perform in public dramatic, dramatico-musical and musical works,

• The right to recite in public literary works,

• The right to communicate to the public the performance of such works,

• The right to broadcast (with the possibility of a contracting state to provide for a

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 mere right to equitable remuneration instead of a right of authorization),

• The right to make reproductions in any manner or form,

• The right to use the work as a basis for an audiovisual work, and the right to
reproduce, distribute, perform in public or communicate to the public that
audiovisual work.
The Convention also provides for “moral rights,” that is, the right to claim authorship
of the work and the right to object to any mutilation or deformation or other modification of,
or other derogatory action in relation to, the work which would be prejudicial to the author’s
honor or reputation.
Trade Related Aspects of Intellectual Property Rights (TRIPS)

Agreement With the establishment of the world trade Organization (WTO), the
importance and role of the intellectual property protection has been Crystallized in the Trade-
Related Intellectual Property Systems (TRIPS) Agreement. It was negotiated at the end of the
Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994.
The general goals of the TRIPS Agreement are contained in the Preamble to the
Agreement, which reproduces the basic Uruguay Round negotiating objectives established in
the TRIPS area by the 1986 Punta del Este Declaration and the 1988-89 Mid-Term Review.
These objectives include the reduction of 20 PP-IPRL&P distortions and
impediments to international trade, promotion of effective and adequate protection of
intellectual property rights, and ensuring that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade.
The TRIPS Agreement encompasses, in principle, all forms of intellectual property
and aims at harmonizing and strengthening standards of protection and providing for
effective enforcement at both national and international levels. It addresses applicability of
general GATT principles as well as the provisions in international agreements on IP (Part I).
It establishes standards for availability, scope, use (Part II), enforcement (Part III), acquisition
and maintenance (Part IV) of Intellectual Property Rights. Furthermore, it addresses related
dispute prevention and settlement mechanisms (Part V). Formal provisions are addressed in
Part VI and VII of the Agreement, which cover transitional, and institutional arrangements,
respectively. The obligations under TRIPS apply equally to all member states. However
developing countries were allowed extra time to implement the applicable changes to their
national laws, in two tiers of transition according to their level of development. The transition
period for developing countries expired in 2005. For least developed countries, the transition
period has been extended to 2016, and could be extended beyond that.
The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most
comprehensive multilateral agreement on intellectual property. The areas of intellectual
property that it covers are:
(i) Copyright and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organisations);
(ii) (ii) Trade marks including service marks;
(iii) (iii) Geographical indications including appellations of origin;
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 (iv) (iv) Industrial designs;
(v) (v) Patents including protection of new varieties of plants;
(vi) The lay-out designs (topographies) of integrated circuits;
(vii) (vii) The undisclosed information including trade secrets and test data.

Features of the Agreement

The main three features of the TRIPS Agreement are as follows-

Standards: The TRIPS Agreement sets out the minimum standards of protection to be
provided by each Member.
Enforcement: The second main set of provisions deals with domestic procedures and
remedies for 21 the enforcement of intellectual property rights.
The Agreement lays down certain general principles applicable to all IPR
enforcement procedures.
Dispute settlement: The Agreement makes disputes between WTO Members about
the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.
In addition the Agreement provides for certain basic principles, such as national and
most-favoured-nation treatment (non-discrimination), and some general rules to ensure that
procedural difficulties in acquiring or maintaining IPRs do not nullify the substantive benefits
that should flow from the Agreement.
The TRIPS Agreement is a minimum standards agreement, which allows Members to
provide more extensive protection of intellectual property if they so wish. Members are left
free to determine the appropriate method of implementing the provisions of the Agreement
within their own legal system and practice.
Protection of Intellectual Property under TRIPS

The TRIPS Agreement provides for protection of various kinds of intellectual

property rights to ensure that adequate standards of protection exist in all member countries.
The starting point is the obligations of the main international agreement of the World
Intellectual Property Organization (WIPO) that already existed before the WTO was created;
namely, the Paris Convention for the Protection of Industrial Property (patents, industrial
designs, etc.) and the Berne Convention for the Protection of Literary and Artistic Works
(copyright). However, some areas were not covered by these conventions while in some
cases, the standards of protection prescribed were thought inadequate. So the TRIPS
agreement adds a significant number of new or higher standards for the protection of
intellectual property rights. Part II of the Agreement addresses, in its various sections, the
different kinds of IPR and establishes standards for each category

4.12 Trademark,
What Is a Trademark?
The term trademark refers to a recognizable insignia, phrase, word, or symbol that denotes a
specific product and legally differentiates it from all other products of its kind. A trademark
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exclusively identifies a product as belonging to a specific company and recognizes the
company's ownership of the brand. Trademarks are generally considered a form
of intellectual property and may or may not be registered.

KEY

 A trademark is an easily recognizable symbol, phrase, or word that denotes a specific

product.
 It legally differentiates a product or service from all others of its kind and recognizes
the source company's ownership of the brand.
 Trademarks may or may not be registered and are denoted by the ® and ™ symbols
respectively.
 Although trademarks do not expire, the owner must make regular use of it in order to
receive the protections associated with them.
Understanding Trademarks
Trademarks not only help distinguish products within the legal and business systems
—but just as significantly—with consumers. They are used to identify and protect words and
design elements that identify the source, owner, or developer of a product or service. They
can be corporate logos, slogans, bands, or the brand name of a product.
Similar to a trademark, a service mark identifies and distinguishes the source of a service
rather than a product, and the term trademark is often used to refer to both trademarks and
service marks.

Using a trademark prevents others from using a company or individual's products or

services without their permission. They also prohibit any marks that have a likelihood of
confusion with an existing one. This means that a business cannot use a symbol
or brand name if it looks or sounds similar, or has a similar meaning to one that’s already on
the books—especially if the products or services are related. For instance, a soft drink
company can't legally use a symbol that looks like that of Coca-Cola and it can't use a name
that sounds like Coke.

A trademark does not need to be registered for the owner to prevent others from using it or a
confusingly similar mark.

Trademarks in the United States are registered through the United States Patent and
Trademark Office (USPTO) and are identified with the ® symbol. But trademarks don't have
to be registered in order to give the company or individual protection rights. Unregistered
trademarks can be recognized with the ™ symbol. By using this symbol, the trademark user
indicates they are using common law to protect their interests.

The laws governing trademarks never expire. This means the holder has the right to
the trademark for the life of the product or service. But there are certain exceptions. The user
is required to make continuous, lawful use of the trademark in order to take advantage of
trademark laws. So a company or individual must regularly manufacture, produce, market,
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and sell a product with a particular trademark in order for the trademark law to be
enforceable. This can be done every five years by filing a section 8 declaration through the
USPTO. Failure to file this can result in the loss of registration.

Special Considerations
Trademarks can be bought and sold. For instance, Nike (NKE) purchased the
instantly recognizable Swoosh logo in 1971 from a graphic arts student for a one-time price
of $35. Trademarks also can be licensed to other companies for an agreed-upon time or
under certain conditions, which can result in crossover brands. Take the relationship LEGO
has with certain movie franchises, for example. The private company licenses many famous
sub-brands such as Star Wars and DC Comics to produce LEGO versions of popular
products.

As mentioned above, trademarks are also used as an effective way to market brand
names. In fact, the power of branding in business is critical and can fill volumes, and the use
of brands in marketing is legendary. Some brands, like Kleenex, are so prominent and have
such successful brand identities that they have almost replaced the noun that was the original
word for the item or service, like asking for a Kleenex instead of a tissue. Kimberly Clark
(KMB) owns the Kleenex trademark and launched the brand in 1924 as a disposable tissue
for removing cosmetics. In 1930, the company launched the brand again—this time as a
substitute for handkerchiefs. Since then, Kleenex has been the number-one selling facial
tissue in the world.

4.13 Functions of UNESCO in IPR maintenance.

Copyright a traditional tool for encouraging creativity nowadays, has even greater
potential to encourage creativity in the beginning of the 21st century. Committed to
promoting copyright protection since its early days (the Universal Copyright Convention was
adopted under UNESCO’s aegis in 1952), UNESCO has over time grown concerned with
ensuring general respect for copyright in all fields of creation and cultural industries. It
conducts, in the framework of the Global Alliance for Cultural Diversity, awareness-raising
and capacity- building projects, in addition to information, training and research in the field
of copyright law. It is particularly involved in developing new initiatives to fight against
piracy. The digital revolution has not left copyright protection unaffected. UNESCO
endeavours to make a contribution to the international debate on this issue, taking into
account the development perspective and paying particular attention to the need of
maintaining the fair balance between the interests of authors and the interest of the general
public of access to knowledge and information.

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