A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, import manufacture or market the invention without the consent of the patent holder. This right is available for a limited period of time. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the State, it can be revoked by the State under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime. There is nothing like a global patent or a world patent. The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries. However, there are some regional systems where by filing one application one could simultaneously obtain patents in the member countries of a regional system; European Patent Office is an example of a similar system.
Patent protection helps a patentee to enjoy his patent rights for a certain period of time and then after that period expires the patented invention is made available to the public so that they can use it. Patent protection serves the following purposes:
- It gives protection to a patentable invention for the exclusive use of it by its inventor.
- It gives a legal recognition to the invention and therefore the inventor’s rights are legally protected and can be enforced by him in the court of law.
- It also makes others aware of the fact as to whom does the invention belong.
- It leads to development of the human society as patents are not protected for infinity and so after the expiry of the protection period the invention is made available to the public for use.
- Patenting ones invention make useful data relating to the invention available to other inventors for further research and development.
For an invention to be patentable, it should qualify the following conditions.
- Novelty : An invention will be considered novel if it does not form a part of the global state of the art. It will cease to be novel if it has been disclosed in the public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Prior use of the invention in the country of interest before the filing date can also destroy the novelty. Novelty is determined through extensive literature searches. An expired patent is also a prior art Everything disclosed in a patent/non-patent literature is prior art.
- Inventiveness (Non-obviousness) : A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application.
- Usefulness : An invention must possess utility for the grant of patent. No valid patent can be granted for an invention devoid of utility.
A trademark is a distinctive sign, which identifies certain goods or services as those produced or provided by a specific person or enterprise. A ‘Mark’ according to the Indian Trademarks Act, may consist of a word or invented word, signature, device, letter, numeral, brand, heading, label, name written in a particular style, the shape of goods other than those for which a mark is proposed to be used, or any combination thereof or a combination of colors and so forth. They may also consist of drawings, symbols, three-dimensional signs such as shape and packaging of goods, or colors used as distinguishing feature. Subject to certain conditions, a trademark may also be symbolized by the name of a person, living or dead. Trademarks are generally territorial in nature. Trademark rights that are established in a particular jurisdiction are only enforceable in that jurisdiction. However, there are international trademark laws and systems, which facilitate the protection of trademarks in more than one jurisdiction.
India offers protection for the business reputation or goodwill also, which attaches to unregistered trademarks through the tort of passing off. This protection is not provided by all the countries only some jurisdictions, like the Common Law countries provide for passing off. Passing off can be used as a remedy in instances where a business has been trading under an unregistered trademark for a long time, and a rival business starts using the same or a similar mark. Some well known trademarks are:
A Service Mark is like a trademark except that it identifies and distinguishes the source of a service rather than a product. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services.
Anyone who claims rights in a mark can use the TM (trademark) or SM (service mark) sign with the mark to alert the public of the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The registration symbol, (R), may only be used when the mark is registered. Trademarks are an important intellectual property and serve to perform the following functions:
- The basic aim of trademark is identifying the commercial source of products and services, trademarks facilitate identification of products and services, which meet the trust, and expectations of consumers as to quality and other characteristics.
- Trademarks may also serve as an incentive and encouragement to manufacturers, providers or suppliers to consistently provide quality products or services enabling them to maintain their business reputation.
- A Trademark also helps the owner of the Trademark in building up a Goodwill thereby helping then in establishing a place in the eyes of the consumer and consumer loyalty.
- The owner of a registered trademark can stop other traders from unlawfully using his trademarks by filing a suit for damages and securing destruction of infringing goods and labels.
- Trademark registration is an evidence of ownership of the trademark and is a constructive notice nationwide of the trademark owner's claim.
Trademark registration in India can also be used as a basis for obtaining registration in foreign countries. Trademarks confer the following rights upon their owners:
- The registration of a trademark confers on the registered proprietor of the trademark the exclusive right to use the trademark in relation to the goods or services in respect of which the trademark is registered. While registration of a trademark is not compulsory it offers better legal protection for action for infringement.
- Proprietary rights in relation to a trademark can be established by 2 ways ie by actual use in the marketplace, or by registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction. In many jurisdictions, trademark rights can be established through one or both means. Certain jurisdictions generally do not recognise trademarks rights arising through use like China. If trademark owners do not hold registrations for their marks in such jurisdictions, then the extent of enforceability of their rights will be.
- The law also allows the owner of a registered trademark to prevent unauthorised use of the mark in relation to products or services which are similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services.
- Once trademark rights are established in a particular jurisdictionthen they can be enforceable only in that jurisdiction, as these rights are territorial in nature and there is no universal trademark. However, there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction.
- The term of a trademark registration is for a period of ten years. The renewal is possible for further period of 10 years each. Unlike patents, copyrights or industrial design trademark rights can last indefinitely if the owner continues to use the mark. However, if a registered trademark is not renewed or is not being used, it is liable to be removed from the register.
Geographical Indication (GI) refers to the Indications which identify a good as originating in the territory or a region or a locality in that territory, where a given quality reputation or other characteristics of the good is attributable to its geographical origin. For example
The term “GI” has been defined in relation to goods, means 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 characteristics 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.
A properly protected GI will give protection to such goods in domestic as well as international market. Geographical indications have proved to be very valuable as they identify the source of the product and are an indicator of quality. Mostly, a geographical indication consists of the name of the place, which is the origin of the goods, such as “Darjeeling” (India) for tea, “Stilton” (England) for cheese, “Swiss” (Switzerland) for chocolate, “Roquefort” (France) for cheese etc.
The use of geographical indications is not limited to agricultural products. They may also highlight peculiar qualities of a product, which are due to human factors, such as specific manufacturing skills and traditions. According to TRIPS, a Geographical Indications which is not or ceases to be protected in its country of origin or which has fallen into disuse in that country cannot be protected. Thus
- Registration of GI confers legal protection to your goods that are registered under the Act Thereby preventing unauthorized use of a Registered Geographical Indication by others as it facilitate an action for infringement exclusive right to use the geographical indication
- It provides legal protection to Indian Geographical Indications, which in turn boost exports.
- It promotes economic prosperity of producers of goods produced in a geographical territory.
'Design'means the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article in two or three dimensional form by any industrial process or means which may be manual,mechanical or chemical and these features are reflected in the finished products by just looking at it. Designs which are essentially technical or functional are not protectable.
In order to be registered, the design should be new or original, not previously published or used in any country before the date of application for registration. The novelty may reside in the application of a known shape or pattern to new subject matter. The purpose of design Registration is to see that the artisan, creator, originator of a design is not deprived of his bonafide reward by others applying it to their goods.
The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.
The duration of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date. This initial period of registration can be extended by further period of 5 years.