| by Kenneth Chase | 1 comment

Intellectual property – Part 2


Defining IPR, we had seen that there are certain
elements that together constitute the concept of Intellectual Property Rights. We saw the fact that the subject matter can
be replicated, it can be repeated. The fact that the right krance, the right
holder, the option of enforcing it against others. And we also saw the other characteristics
or traits of intellectual property right. Now, one of things in understanding or in
defining intellectual property right is to first understand the subject matter on which
the intellectual property right will manifest itself on. Because, as I said earlier, intellectual property
rights are a group of rights, which manifest on different expressions of ideas – that is
one definition of it. It also manifests itself on… the new rights
are not actually on ideas; like a geographical indication is not actually on some idea; it’s
the fact that there are certain products that come of a particular geography, which are
valuable and it’s an attribution to the origin from that place. That place may have certain special weather
or it could have some climatic conditions which makes the product or contributes – the
geography contributes – to the product, so you identify the product with a particular
place. Now, there is not much idea involved. Who will be the beneficiary of this geographical
indication? The beneficiary of a geographical indication
are the people, are the community which uses its right; the producers from that place,
they are the the people who can use that right. For instance, Darjeeling tea – the people
who are having plantations in Darjeeling, and who are actually in the manufacturing
and production of the tea, they can use that label to say that this tea is from Darjeeling,
because the Darjeeling tea, it has been found out that has certain properties which is not
there for tea that is grown in Coorg or in some part of Srilanka; it’s not there. The people who are able to manufacture from
that particular region can claim a GI – A Geographical Indication. Now, coming back to our definition. So, we know an intellectual property by the
subject matter on which it manifests itself. If an idea manifests itself in the form of
an invention, then that is protected by a patent. If the idea manifests itself in the form of
an expression – a literary work or an artistic work or a cinematographic work – then that
is protected by a copyright. If the idea is an aesthetic design – a design
that pleases the eye with no functional component to it, it’s just that it pleases the eye
– then, we say that subject matter can be protected by a registered design. Now, to understand a registered design, I
will give you this example – a shoe that is designed by a company like Nike or Adidas
will have certain design elements which also contribute to the functionality. It makes it cut the air faster, it gives it
grip, it gives certain support in certain parts of the foot. So, those design elements have also a functional
component. So we do not say such design should be the
subject matter of a registered design, because they could be an aesthetic part to it, but
if there is a functional part right holders will not go for a registered design. Whereas, if a shoe is designed to look like
a bunny or a rabbit, you know many children’s shoes are designed like a rabbit or like a
character in a cartoon, in such cases, we do not say that design has a functional element. Try to understand; the scope of a registered
design is for things that are aesthetically pleasing to the eye and the test is – what
the eye can see. So, when functional elements are tied to the
design, right holders normally do not go and get a registered design for it. They have multiple rights, first it is a trade
mark; and then the thing can also be copyrighted the way it looks, because almost all Disney
characters where at some point subject matters of copyright. So you cannot create that image in any other
form. And that violates a copyright, and copyright,
as you know, is it is life of the authors plus 60 years in India; so, it is quite a
substantial right. In defining intellectual property we first
look at the subject matter. Then, we look at the form by which it is protected. Now, we said that intellectual property rights
are intangible rights, and it is sometimes difficult for us to ascertain the contours
of this right, the boundaries of this right. Registration, is a way in which we can understand
what the right holder has claimed. Registration could be registration of a patent
specification by which a patent is granted. Registration could be registration of a literary
work; literary works can be registered though it’s not mandatory for enforcement purposes. Software code gets registered by way of a
copyright. Trademarks are registered. So, registration is the process by which these
right become court and court official; it’s recognized; people can verify it; and it is
also, because it is backed by a law – the Trademarks Act of 1999, is what gives the
trademark holder a right to enforce it. The Patents Act 1970 gives the patent holder
a right to enforce a granted patent against others. So, registration is done by the government
or by the state. So registration confers sanctity over the
intellectual property right. So subject matter can vary, and depending
on the subject matter, you can have different rights; kind, type of registration, the details
of registration also varies because if you are filing a design – a registered design
– or a registered trademark, you are just filing forms and figures, you know, you are
just filing some papers with some marks in it, and the registry does a check, and the
registry… if the check is cleared, then you get your right. It’s more like matching what has gone before,
– are they similar terms, then the registry may raise an objection; if there are no similar
terms you invented or you coined a word for the first time, nobody else has done it before,
most slightly you will get the mark. It’s a straight forward process. Design, again, the design looks unique, it
is original, and you are the first person to file that design, it gets a registration. But patents follow a different path. The patents specification will have to explain,
in detail, the entire invention. And it is not just the invention, the working
of the invention, the features of the inventions, the advantages, the various variations in
the invention. And the right holder will also have to explain
what went before the invention. So it is a narrative, he explains his invention,
and he also before that, he explains the background of the invention – what were the technologies
before him and how it was not possible for a person skilled in the art, which is his
sphere, to come up with this invention, but he with his inventive effort was able come
up with it. So, it’s a narrative which starts with the
background art, then it goes towards describing the invention, the purposes of the invention,
what are the problems the invention solves, various other things, and it also has embodiments,
illustrations – how the invention works or what are the parts of an invention, if the
invention has a mechanical invention. And finally, it ends with the claims. So, this entire process of explaining the
invention when it is captured in what we called a Patent specification. The Patent Office does the job of not just
registering it. It also scrutinizes the details in great depth. Now, the scrutiny is done by giving a report
to the right holder; in India, we call it the first examination report. The first examination report is given where
the right holder is asked how he can justify his invention in the light of, if there are
any objections, but most likely there are, if there are any objections either it could
be technical objections or it could be some substantial objection. If the patent covers a subject matter which
is not patentable under the Indian law, there will be an objection. If the patent covers something which is already
preceded it in the art, it is preceded, it’s already come or the patent covers something
which is obvious for everybody to do. In all these cases, the office is going to
raise these substantial objections, and these substantial objections, and these substantial
objections takes time to get over them. And this process of the office raising objections
over a patent application is what you called patent prosecution. And Patent prosecution, is a very detailed
and sometimes a complicated process. Patent prosecution actually is different from
a trademark prosecution or a design right prosecution in the sense that there is quite
a lot of details involved, there is a quite a lot of analysis of what the person says
which goes into it before the right is granted. So, registration is one of the key elements
by which we can define intellectual property rights. And registration itself varies, just how the
subject matter varies when it comes to different types of intellectual property rights, the
registration process also varies when it comes to different types of intellectual property
rights. Then, these rights offer a set of rights;
intellectual property rights be it patents, trademarks, copyright, designs – they offer
a set of rights, it is actually a bundle of rights to the right holder. And these bundles of rights also varies. In the case of a literary work, the right
may involve the right to print, the right to publish, the right to perform, film or
record the subject matter. Because, here is an expression of an idea,
and all the forms of expression – most likely which can be captured in a medium – this is
critical when you understand copyright, because copyright is the right to make copies. And when you are talking about the right to
make copies, where are you making those copies? There is always a medium right. So, before copyright came – I mean this is
just before industrial revolution – the world followed a means of transmitting knowledge
what we commonly call the oral formulaic tradition. Now, if your children are studying nursery
rhymes, which you studied, and which probably your parents studied in school, that’s because
of the oral formulaic tradition. They are the same ones which get repeated
over the years, and this used to be… just before I mean the industrial revolution, which
is seen as a point in history where these rights come into being. They were, I would say, remote instances of
rights even existing before that, some kings granting these rights, but the rights attained
international recognition with the advent of the industrial revolution. There are reasons for that, historical reasons,
we will get into it soon. So, before copyright actually came into existence
or before copyright became a recognizable right, there was the oral formulaic tradition. The oral-formulaic tradition was a tradition
by which people just memorized things and passed it on to the next generation. Now, if you do that, technically, are you
violating a copyright? Because now the medium is your mind. You remember things in your mind, and you
pass it on to the next generation, and the next generation or the person who hears from
you he or she remembers in her mind, memorizes it, and passes it on. So the oral formulaic tradition, unless the
substance is captured in some medium, can remain outside the purview of the copyright
regime. Because the copyright regime requires things
to be recorded or expressed on some medium. So, print, the medium is paper. If it is a film, it is recorded on tapes or
now it’s digital. You will understand that whenever we are talking
about making copies, it implies a medium being there. We don’t not say that if you heard somebody
reciting a poem to you, and if you memorize it, you say that I made a copy of it; you
do not use that even in common parlance. We have different terms for that, we would
just say that I memorized it or I learnt it by heart. So, this is a critical point that you need
to understand and it has some history behind it. In the sense that copyright, when it evolved
as a right, if you look behind it or before it, you will find that, Europe especially,
had an oral-formulaic tradition. And there are enough number of studies, which
some of which is say that one of the biggest beneficiaries of the oral-formulaic tradition
was Shakespeare, you know, just before Shakespeare came in he actually inherited from a oral-formulaic
tradition. And there are studies which say that some
of the things that he wrote were already there in the oral-formulaic tradition. So, that was a point in history where the
right became recognized, and because of the industrial revolution, it spread far and wide. And the industrial revolution also contributed
to it, because all the things that we were talking about intellectual property rights
are first emanated in the industrial revolution. We said these rights are duplicable; you can
make multiple, you can reproduce them; if you have the first copy, you can make multiple
copies of it. Industrial revolution actually mechanized
manufacturing; it made producing many copies of products easier. Industrial revolution gave value to things
because they were manufactured in large numbers; an entire industry of marketing came with
the industrial revolution. Before that people were not marketing the
way or the scale in which they were doing. This, again, is similar to what we discussed
about intellectual property right. We say that intellectual property rights are
valuable rights, they are commercially valuable. And intellectual property right is tied to
an idea which can be shared to others or which can be expressed or which can or you can have
an application out of it. If you just see the advent of industrial revolution,
there are certain things that contributed to the growth of industrial revolution itself. One of the things includes the advancement
in printing technology. Now, this led to the quick spread of ideas,
because printing technology advanced, and you could make copies of what was disseminated;
big ideas, great works could now be copied and it could be sent to other places. And because of the invention of steel and
our ability to cross the seas using ships which could withstand long voyages, we also
found that people were meeting each other or crossing borders at a much greater pace
than they ever did in history and at a much bigger number. And in Europe, this actually lead to the need
to translate works. So, when you found new a German philosopher
coming out with his work or a German artist coming up with his work you found quickly
people translating them and that ideas spreading in England. So, when people started moving that also contributed
to them understanding each other and the entire field of translation or interpreting other
languages came up, which also lead to the quick spread of ideas. So the reason why we take the industrial revolution
as the point where intellectual property rights actually took off, is it was tied to idea,
and it was tied to dissemination of ideas. Now, we were mentioning that the exclusive
set of rights that an intellectual property right encompasses would also vary depending
on the kind of intellectual property right. And we were saying that is if it is a copyright,
then the copyright gives the creator a fixed number of years to print, to publish, to perform,
to film or to record, literary, artistic, musical or other cinematographic works. So, the set of exclusive right in copyright
pertain to making more copies in different forms. The set of rights – exclusive rights – in
trademark pertain to using a symbol or a word that is legally registered or established
by use as representing a company or it’s products; could be products or even services. In trademark, the right is for you to ascribe
a symbol or a set of words – the Nike mark or the Mercedes Benz logo or any of these
things – to a manufacturer or to a company which owns it. So, this attribution gives you a set of rights
that are different. Now, you could use this right for all your
products; you could use this right for if you enter new industries in which you were
not there before; you could stop people from using it, even if you do not have products,
because your rights have goodwill. Now, there was a case where someone used the
Benz mark – the Benz Tristar logo – for selling undergarments in India. The court came Benz had no idea, as far as
I know, of entering into the garment business, but still they stopped it, because that was
the right holder has the right to use the mark in the way he or she wants. It need not be if the business is that in
which you are, where you can stop other from using it, you could also preempt people from
using it if the mark is well known, if it’s a reputed mark. The exclusive set of rights, when it comes
patent law on a patent, pertain to the right to make, the right to sell, the right to use,
the right to offer for sale and the right to import an invention. Now, look at that. In patent law, we are talking about rights
relating to manufacture, marketing, sale, and in some cases importation. So the nature the subject matter – we are
trying to define intellectual property right and we are trying to understand that the subject
matter can be different for different rights; the registration process is different for
different rights; the exclusive set of rights that patents and trademarks and copyright
encompasses – they themselves can be different, because of the subject matter being different. And the duration can also be different. Trademarks are for a fixed term, but they
can be renewed as long as the right holder pleases. Some of the trademarks that are in operation
like the Coca Cola mark are very old – close to a 100 years or more. Some of the trademarks, trademarks can be
situations where if the right is not renewed or if the right is not used, then that marks
cannot be enforced. But if you look at a business that has survived
for 100 years, then you would actually see that the marks have been kept alive, they
have payed the charges, official fees for keeping the marks alive, and you will find
that it can be. The trademarks, in business parlance, we say
these are kind of unlimited life intellectual property. There is no limit to this category of intellectual
property, because their life is as long as the right holder wants to keep them alive;
he just needs to pay money to the government, as a official fee, and he also needs to take
action against people who may use this right. So there are two things the right holder needs
to do: 1. pay the official charges, 2. he needs to be
vigilant and needs to take action against people who are using the right without his
consent. Otherwise, it could be assumed that he has
given up his right.In case, if you see Coco Cola, it has large number of design rights;
right from 1900 to 2000 . It has changed it’s design for a quite a period of times; I mean
every 10 years, every 5 years it changes its design. Say for example, in 1910, if there is one
design for Coco Cola, then that is not been renewed. The trade mark for the design has not been
renewed. Can they be used by some other party?Okay
See Coca Cola has designs on it is bottle. Coca Cola has copyright protection in the
way in which it is products are displayed; it is an artistic work. Coca Cola has trademark on the word. The trademark without doubt is an unlimited
life IP – Intellectual Property – it is unlimited; there is no limit to it. The other rights come and go. If they had assumed that they had registered
a design, and there was a limited life for it, it would come and go, but the mark can
always and only be used by the right holder. So, it is combination, there are multiple
rights, you will see that there will be multiple rights, but the way in which they take it
forward is to get an unlimited life IP. Trade secrets – they are, again, a category
of intellectual property right which fall with in the unlimited life IP; they are not
limited by, if you can keep the trade secret confidential, then you can enforce it as long
as they are kept confidential. This is also valid internationally right not
only to specific countries. Also In Germany, United States Yes. Yes. Yes Yeah The duration is true for all the
countries. So, you could classify the entire lot of IP
into two categories from a business perspective. You have the limited life IP, where the duration
is limited, after which it falls into the public domain and people can use it. And you have the unlimited life IP, where
subject to renewal; it can be kept alive forever. So this is true across the globe. Now, let us look at duration. Just a few examples – Today, across the globe,
duration of a patent is 20 years from the date of application. Now, we have this uniform system, thanks to
the TRIPS agreement; the trade agreement on the trade related aspects of intellectual
property rights, which is TRIPS, which is an agreement under the World Trade Organization
WTO. WTO is an organization and it is also a list
of agreements. So, the TRIPS agreement, is the agreement
which covers intellectual property rights, and every WTO member is bound to implement
that agreement, because it was an international arrangement. And most countries, who are all members of
the WTO, have across the board 20-year term for patent. This was not so before; the duration of a
patent was not 20 years. In India, it used to be 14 years, and for
pharmaceuticals in India, the term used to be upto 7 years; it was a flexible term; it
used to be different; for pharmaceutical, food, and agricultural products the term use
to be even lesser. Now, you may ask why 20 years? I mean, where did we get the 20 years from? I mean there should be some logic behind 20
years. Because we know that 20 years is not only
true or not only applicable for all countries, it is applicable it is technology agnostic. Every technology is now protectable by virtue
of the TRIPS agreement; every technology, even if the technology has a life span of
3 years, it still gets a 20-year term. So, patents or the patent term as we understand
it today, internationally, is not technology specific. Whether it is pharmaceuticals, aeronautics,
biotechnology, software – for countries which grant patents on software – it’s a 20-year
period. And you and I know that a 20-year period does
not make sense for all technology. Some technologies are so quick, they are,
and you know, 20 years may be many generations, for all you know, it could be many generations. So, how do we understand this 20 year period. 20-year period came in because of some international
lobbying because WTO, before it came into being, there were 8 years of negotiations,
what we call the Uruguay rounds, you know, countries participated in it, and it was a
long drawn process after which the World Trade Organization was formed. And in that time, there were stake holders
putting up their interest and pushing things to it and some how we had this agreement on
20 years. Now, mind you, the predominant time period
before this 20 year across the globe used to be 14. And there is a small explanation – historical
explanation – as to how it came to be 14 years. In England, it is said that it took 7 years
to train an apprentice; that was time of an apprentices under a master or a person with
whom he learnt was 7 years. Initially, the British kings when they started
granting patents, and they did not actually grant patents, in the initial years they granted
exclusive privileges. Now exclusive privileges were granted by the
King or the Queen to enable craftsman, very talented craftsman, to come from Continental
Europe and to set up their businesses here. Now, imagine, if these craftsman – some of
them made soap, some of them made glassware, some of them on perfumes, playing cards, n
number of things. If these craftsman, were asked to come without
the protection of an exclusive privilege, then they come in here and immediately their
trade gets copied, isn’t? This is the historical part of patent law. These exclusive privileges actually came in
a way in which some protection was granted to people with special skills. Now, at that point, we were not even talking
about inventions, we were not even talking about technologies, some people had these
exclusive privileges to import playing cards, and it was a royal privilege, the King or
the Queen could give a royal privilege for any thing. Sometimes the royal privileges could be given
for exploration of minerals – privileges were given. In fact, this country was ruled by the British
for a long time, because one company – the East India Company – came with a patent charter,
they came with a charter and that was an exclusive privilege that the Queen gave to that company
to explore business opportunities here, and they came, and we know rest is history; you
know they colonized, they came here and they colonized. But this, the origin of their charter was
an exclusive privilege given by the ruler. So, exclusive privileges were there at all
times. In the early days, we find we do not find
patent grants, we find exclusive privileges. So, when a technician or a craftsman was given
an exclusive privilege to manufacture soaps, for instance, the King or the Queen would
ask the craftsman to train two British nationals, because if you train to British nationals
eventually they will learn the trade, they will set up shop, and this was a way in which
technology transfer or rather let us call it skill transfer happened in those days. So the privilege would be given in return
of training two apprentices. So, apprentices normally take 7 years, 7 plus
7 14, that is how we came with the first term. This one explanation given as to why we had
a 14-year patent term before the TRIPS agreement; so this is one explanation. So, patents have a 20 year term which is universally
applicable across the board, all the WTO member countries have to honor that commitment, and
grant patents for 20 years, regardless of the field of technology. It is 20 years from the date of application. Copyright in India has a term which is computed
as life of the author plus 60 years. If the author writes a book very early in
his life, and if he gets to live long, then the books get a longer right. In fact, I think it was in 2009, all the works
of Mohandas Karamchand Gandhi, Gandhiji, they came into the public domain, because his life
plus 60 years I think it expired in 2009; I can check and tell you the date. So, the duration of a copyright is life of
the author plus 60 years. If it’s not an author, if the author or
the creator is in institution, then the institution from the date of the publication or from the
date it is for another term, I think it is 60 years. Trademarks, as I said, trademarks the duration
is it is granted for 10 years; it can be renewed every 5 years. This makes intellectual property rights; it
puts intellectual property rights into two broad categories: one as I said is the limited
life IP – copyrights and patents. The other will be the unlimited life IP – trade
secrets, trademarks. Now just a quick run through on what these
rights are, what they manifest. Patents grant exclusive right; they are conferred
by the government. As I said, exclusivity means it gives the
ability to stop others, and the right pertains to making, selling, using, offering for sale,
and importing. And the right exists for a time period, as
I said is 20 years from the date of application, after which it falls into the public domain. So, whatever was covered by the subject matter
of a patent will then be free for everybody to use it. Copyright, again it’s an exclusive right. It is conferred by the government in cases
where you seek a registration or upon creation – I have mentioned this before, if you are
publishing something, all you need to do is put the copy right notice, which is the C
within a circle, your name, and the year on which it was published. You would see a copyright notice on most works. That itself gives you a right and that is
done because of an arrangement where you can just publish it and claim to be the creator. So, copyright comes into effect either upon
registration by the government or upon creation, creation with the notice.I don’t even have
to register.No, no need; for enforcement it’s not required. In fact, all the books that are there in our
library just the copyright note is the sufficient; there is no need to separately register.Notice
in the sense C copyright. Yes. C copyright almost most websites today have
it, if you go to the bottom, privately held websites, company corporate websites they
will say copyright from this year to year in the name of the company. So which means every thing that was put on
the website is copyrighted and reproduction should be done only technically with permission. But the point with the website is I need not
copy or paste anything. I can give a hyper link directly to that website. So, in that sense it is irrelevant; copyright
is irrelevant on the internet, because I could give a an hyper link from my website and take
to that person’s page.But still in that page that the other persons logo or whatever.Logo
is protected by trademark, but the point is the copyright notice is put so that people
don’t enmasse copy things, and put it, and pass it off as somebody else’s website;
that’s objective of it. But if I need to refer to something, say Mercedes
Benz’s website or Tata motors website, something, I can just hyperlink and people can read from
that page.Films like let us say Tamil, suppose they have taken a film or in Hindi let’s
say Don is the name of the film the taken. Now, what is the duration that they cannot
take Don in that same name.That does not come under copyright. It’s a separate registration, like registering
a company’s name does not come under the copyright law. The Companies Act has a norm for it. Registering a domain name does not come under
copyright law. There is a domain registration service, where
you can go like privately godaddy manages it, you can get it, as long as you keep renewing
the name, you can have it. So, those things are it’s not of subject
matter of copyright. There may be some industry arrangement, there
may be some other statutes like the Companies Act by which you can register company names. Now, these rights pertain to multiple things
– you can print, as I said, publish, perform, record, and depending on what the subject
matter is and the duration of the life is life of the author and plus 60 years. So, from the date of creation till the author
dies and 60 years from there on.In case of an institution?Institution, the date of creation
plus 60 years. In some places, in some countries it’s 50,
in some countries it’s more than 60, in America it’s more than that, so universally
you will see that there is some leeway as to what could be. The copyright term can vary if you create
a copyrighted product and have copyrights in multiple jurisdictions. It can vary because the countries have, we
don’t have something like your TRIPS mandate that the copyright term has to be same across
all the countries; we don’t have that. For trademarks, trademarks are exclusive rights,
they are conferred by the government, possible for you to register them or it is established
by use. Now, establishing by use is if there is a
mark that is used in Europe like Ikea, Ikea they are slowly coming here, but Ikea has
been used in Europe and assume that Ikea did not sell anything in India. If someone, an Indian manufacture, start using
Ikea, Ikea could still come and stop that person, because their right to the mark is
established by use – international use. And they have a reputation, and there is another
branch of law, as I mentioned earlier, a law of passing off can come to Ikea’s rescue
to stop people from using it, though they may not have business here and they may not
have registered it in India. So it’s possible. So, that is why we say the trademarks, when
we say trademarks in that sense we also include the right to use, which comes by way of, you
know, you can protect your right by way of the law of passing off.With law will be applicable
if I don’t register the trademark in India and still using for a prolonged time it may
be like 20 years or 30 years can I use it now.Yes. The law of passing off will still come to
your help, because you have been using it in trade, though you have not registered it,
and you have some kind of reputation that has come out of it. So, we know some cases were people involved
in old businesses, they do not register their mark for whatever reason either the business
was too small then or whatever. Then, the next generation takes the business
and they are able to broaden it and take it to all places. At that point they go in for a registration,
because the next generation – the new generation – they are aware of these rights and they
go in for a registration. But still, as they enjoy the mark, they would
have been able to stop any person who would have intervened even without registration. That is the fact that you have been using
something, and people know you by that, and you can stop people from using it, so even
without registration. The right expresses itself in the form of
a symbols, words, and marks. So the trademark is something, it is a mark
by which your products and services are identified by the world. When we see the Tata mark on a packet of common
salt we know who created it. When we see the same mark on an automobile
we know who created it. We see the same mark on IT company – TCS
– you know the Tata mark, we know that it belongs to a conglomerate. So, marks helps us to identify the producer
or to know more about the origin of goods and services. In a world where marks are not respected,
they will be rampant piracy and counterfeit happening all over the place, because people
would now pass off cars as Tata cars or they will pass of products as Tata’s products. So there will be issues with regard to reliability
of those products, and also the company’s reputation can get affected, because if you
see businesses are run on reputation, and a reputation is built over years; sometimes
it it takes many years for somebody to build a reputation. And the marks become some kind of an ambassadors
for a business. So, when they see the mark, there is so much
of reputation that is attributed to the mark, because this mark is how the company identifies
itself. When others use the mark, and they are not
able to give the quality, even if they give the quality still the mark holder can come
and stop others from using it. Now branding, it also has certain issues. Sometimes, a mark that is well known and well
established may go for a re-branding; they may decide to change the way they look and
that has whole lot of trademark issues, because the existing mark is still held by the company. Because, they don’t want others, when a
mark like that is discontinued, it will not be open for others to use that mark, unlike
a patent which expires and comes into the public domain, because still this company
would want others not to use the mark. They will still keep it alive. For instance, I don’t know whether you noticed,
Airtel used to be known by a different logo, few years back, Airtel used to be written. Now they have a symbol. Yeah now they have a symbol. Now, they made this transition, obviously,
it was an a transition done for business reasons, but just because Airtel made the transition,
Airtel will not allow people to use it’s old mark. Yeah and Airtel can stop others from using
its old mark. This is not the case with the patent, if the
patent is expired or revoked for whatever reason, then everybody can use that technology.Airtel
paid for the renewal of the old mark?Yes, if it is keeping it alive, and I would guess
that they are keeping it alive, I would guess that because if they don’t keep it alive,
then there could be a reason for others to use it for what ever. But it’s difficult, because Airtel, not
just the mark, the word itself is a subject matter of trademark. So anybody who uses Airtel in any font can
still be caught by their trademark. But but the symbol you know it underwent a
transformation.Can the medical therapies or processes or procedures can be protected by
intellectual property right?There is Medical methods of treatment are exempted from protection
under the Indian Act. Section 3 does not allow methods of treatment
to be protected. And there are some sound reasons for that,
when we come to the issue of patents in detail we can discuss that. Design. Again, it is an exclusive right; it is conferred
by government which means it involves registration. This right pertains to shape, configuration,
pattern, etcetera, which are aesthetic in nature, which has pleasing to the eye. Which does not involve functional element,
because if there is a functional element, then it goes to the domain of another right
– patterns. These rights are not rights which can be protected
by copyright, because if something can be protected by copyright, then that’s a subject
matter of copyright; nobody will go for a lesser term, look at the duration of this. So, if you have a design, and if by some means
you can protect it by a copyright, then you can stop people from using that design through
your copyright, because it’s an artistic work; you can say that there is infringment
of your artistic work, then the protection is your life plus 60 years.Then why is that
there is separate entity for design? This is for another purpose industrial designs;
we are not talking about artistic works, industrial like interlocking tiles ok or TMT steel bars,
there were some novel designs over them. Engineering again aesthetic. Shape of a bottle for instance okay. You may argue that the shape of the bottle
has a functional element, but we are looking at all bottles have function in that sense,
but we are looking at some kind of a design which makes a bottle look unique. This is largely mass produced goods which
come under this category. And and, again, this is the weakest of intellectual
property rights, because there are restrictions on enforcing it, you cannot stop people from
doing things, and your damages are also limited; we will get to it.Dresses.Yeah; mass produced
dresses, anything that is aesthetically appealing, anything can be done. Jewellery.Somebody says blouse is my design
nobody told … Yes, jewelery. Yeah mass produced; anything that is mass
produced in a particular thing can come under this.

1 Comment

Madhusudan Bhattarai

Jun 6, 2019, 2:43 am Reply

Useful, appreciated!

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