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INTELLECTUAL PROPERTY RIGHTS

Author : Doniya Elsa Thomas

Intellectual Property Rights are the rights given to persons for their invention, literary and artistic works. It gives an exclusive right to the creator for a certain span of time. These are enshrined in Article 27 of the Universal Declaration of Human Rights. It gives the right to benefit from the protection of moral interests resulting from scientific or literacy products. Its importance was firstly recognized by the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the protection of Literary and Artistic Works (1886). These both treaties are administered by the World Intellectual Property Organization (WIPO). It is divided into two important areas:

  • Copyright and rights related to copyrights

The rights of authors of various work such as writing, musical compositions, painting, films etc. They are protected for a period of 50 years after the death of the author.

  • Protection of distinctive signs

Trademark distinguishes the goods and service of one attributes from the other.

Geographical Indications helps to identify the origination of goods and its specific characteristics.

Industrial designs and trade secrets help to stimulate innovation and creation of technology.

NEED FOR INTELLECTUAL PROPERT RIGHTS

The legal protection of new creation helps to the evolution for further innovation. It promotes and protects Intellectual property from economic growth and enhances the quality of life. It required safeguarding the creator’s goods and commodities and it promotes the creativity that ensures the ease of doing the business. It facilitates the transfer of technology as joint ventures or licensing.

OBJECTIVES OF INTELLECTUAL PROPERTY RIGHT

It creates some sort of public awareness about the economic, social and cultural benefits among the various sections of the society. Intellectual Property Right balances the interests of owner’s right by considering larger public interest. It gets value mainly through commercialization. It strengthens the human resources and capacity for teaching, training etc.

1. PATENT

It is used to prevent the invention of something for further creation without the permission of the creator. It is the right which is given to the creator. It is a most common type of intellectual property right. There are three categories of patent. It involves utility, design and plant. Utility means to protect the creation of a machine or something else that is useful to the general public. Design means an ornamental design of a particular product. Plant patent protects new type of plants from various means.

2. TRADEMARK

It allows the consumer to distinguish a particular products or services from various products and services. It can be arises in the form of text, sound, smell, colour etc.

3. COPYRIGHT

Ideas are not protected by this means. The people who can be called as copyright owner have the exclusive right to sell or publish his goods or service to the society.

4. TRADE SECRET

It is a kind of secret in business. It helps the business to gain so much of advantages. It is considered as very confidential. It may be strategies or symbols

INTERNATIONAL TRADE IN INTELLECTUAL PROPERTY

There was a large change in intellectual property over last twenty years. It was a result of intersection with international trade. International trade related agreements are brought into force during this period. Exchange of goods, services, capital and knowledge are increases during this period. Many activities are changes to intellectual property.

WORLD TRADE ORGANIZATION

World Trade Organization is a governmental organization. It is implemented for the regulation of International trade between various nations. World Trade Organizations is commenced on 1 January 1995. Discrimination between trading partners are prohibited by the World Trade Organization. It prohibits the discriminations between the trading parties. It provides national security and helps to gain goals. It looks over the administration and operation of the things written in agreements. It helps the negotiation which sets for setting the disputes. It would review on trade policy mechanism. One of the reasons of the increase in trade is because of the dispute settle mechanism.

TRADE IN SERVICES

There is a set of documented rules in International trade which covers General Agreement on Trade in Services. CONSUMPTION, CROSS BORDER, PRESENCE OF NATURAL PERSONS AND COMMERCIAL PRESSENCE are the types of services provided by General Agreement on Trade in Services. To become trade negotiator for becoming or identifying its strength and weakness data by mode of supply will help. Cross border supply means when a product is made in one country and it sells in other country. It is similar to traditional trade. Consumer abroad means at the time of supply of services the property is in abroad. When a person is in abroad in order to provide his service their then it is said as commercial presence. When the service is provided in the country where it is consumed then we can said as presence of natural persons.

INTERNATIONAL LAWS ON INTELLECTUAL PROPERT LAWS

1. The Paris Convention on the Protection of Industrial Property

2. The Berne Convention on the Protection of Industrial Property

3. Madrid Agreement Concerning the International Registration Of Marks

4. World Intellectual Property Organization

5. The Bordeaux Internationaux Reunis Pour La Protection De La Propriete Intellectuelle

TREATIES ON INTELLECTUAL PROPERTY LAW

1. Agreement on Trade Related Aspects of Intellectual Property Right

2. Anti-Counterfeiting Trade Agreement

3. Berne Convention for the Protection of Literary and Artistic Works

4. Paris Convention for the Protection of Industrial Property

5. Patent Cooperation Treaty

6. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.

JURISDICTION

Every State authorizes the court to solve the issues relating to the dispute of Intellectual Property Law. If the authority is unavailable then the decision for finding a dispute resolution is vested with cooperative adjudication.

CASE LAWS

  • Bajaj auto limited v TVS motor company limited jt 2009(12) SC 103

In this court the Supreme Court directed to all the courts and tribunals that the country should carry out the punctually and faithfulness. It was a landmark Judgement. It is a case of dispute over patent for trying the use of twin spark plug engine technology for speedy disposal of Intellectual Property Rights. The Supreme Court says that the hearing of any disputes should proceed on day to day basis and within four months of the petition the Judgement should be given.

  • Clinique Laboratories LLC and Anr V Gufic Limited and Anr MANU/DE/0797/2009

In this case a suit was filed for the infringement by a registered trade mark owner against a registered trade mark holder. Here as per the sections 124910 the petitioner had filed a cancellation petition before the registrar of trade marks. According to the section 124950 of the Act, the court had the power to pass the interlocutory orders. In this case the court held that suit for infringement of registered trade mark is maintainable against another proprietor or similar trade mark. Here in this case the court granted the interim injunction in the favour of the petitioner at the period of the cancellation petition by the competent authority.

  • The Coca cola Company V Bisleri International Pvt Ltd Manu/DE/2698/2009

In this case the Delhi high court held that if there is the threat of infringement exists then the court would have the jurisdiction to entertain the suit. The exporting of the goods from one   country is considered as sale within the country from where the places of the goods are exported and the amount to infringement of trademarks. The intention to use the trademarks besides which is direct or indirect use of the trademark was enough to give the jurisdiction to the court.

  • Bayer Corporation V Union of India 162 (2009) DLT 371

In this case the high court held that the drug patent linkage mechanism in India has different objectives and authority to determine patent standards within the exclusive domain. Infringement of patent does not include market approval of a drug. This type of adjudication is beyond the jurisdiction of Drug Authorities. Intellectual Property Rights is a intangible creation of human beings. The well-known intellectual rights are patent, trademarks, trade secrets, and copyrights. The main aim of it is to promote the creation of wide variety of individual goods.