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Published : November 09, 2010 | Author : shuchi.lawstudent
Category : Intellectual Property | Total Views : 5151 | Rating :

  
shuchi.lawstudent
shuchi pandey, final year law student at university of burdwan
 

Intellectual properties right (IPR)

Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic and commercial. The former is covered by copyright laws, which protect creative works such as books, movies, music, paintings, photographs, and software and gives the copyright holder exclusive right to control reproduction or adaptation of such works for a certain period of time[1].

Intellectual property rights give creators exclusive rights to their creations, thereby providing an incentive for the author or inventor to develop and share the information rather than keep it secret. The legal protections granted by IP laws are credited with significant contributions toward economic growth.

Intellectual property rights are considered by economists to be a form of temporary monopoly enforced by the state (or enforced using the legal mechanisms for redress supported by the state).

a. Evolution of the concept of IPR
Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously - the use by one person does not exclude use by another.

Modern usage of the term "intellectual property" began with the 1967 establishment of the World Intellectual Property Organization (WIPO), but it did not enter popular usage until passage of the Bayh-Dole Act in 1980.[5]

The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears."). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years[2]".In Europe, French author A. Nion mentioned "propriété intellectuelle" in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as "property" does not seem to exist[3]. The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, which is further discussed in the Shulchan Aruch

b. Primary rights available under IPR
i. PATENTS
A patent is a set of exclusive rights granted by a state to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an invention.

ii. COPY RIGHT
Copyright is a legal concept, enacted by governments, giving the creator of certain original artistic works exclusive rights to the reproduction of those works. Copyrights are usually valid for a limited time, after which the work enters the public domain. Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete.

iii. TRADE MERKS
A trademark or trade mark (represented by the symbol ™ or ®)[4] or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. A trademark is a type of intellectual property, and typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.[5]There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories.

iv. TRADE NAMES
A trade name, also known as a trading name or a business name, is the name which a business trades under for commercial purposes, although its registered, legal name, used for contracts and other formal situations, may be another. Pharmaceuticals also have trade names (e.g. "Aspirin"), often dissimilar to their chemical names ("acetylsalicylic acid"). ETC…

2. Copy Rights
i. what is copy right?
Copyright is a legal concept, enacted by governments, giving the creator of certain original artistic works exclusive rights to the reproduction of those works. Copyrights are usually valid for a limited time, after which the work enters the public domain. Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights

Copyright initially was conceived as a way for governments in Europe to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them.

ii. How did the concept of copy right developed in the society?
Copyright was invented after the advent of the printing press and with wider public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the eighteenth century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing Act of 1662 by Act of Parliament [1], which established a register of licensed books and required a copy to be deposited with the Stationers Company, essentially continuing the licensing of material that had long been in effect.

The Statute of Anne was the first real copyright act, and gave the publishers rights for a fixed period, after which the copyright expired.

The Copyright Clause of the United States Constitution (1787) authorized copyright legislation

The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally.

iii. How can a copy right be obtained?

Different countries have different test for giving copy right for a work. In general for obtaining a copy right for a work the following are regarded-
o a work must meet minimal standards of originality

o In the United Kingdom there has to be some 'skill, labor and judgment' that has gone into it

o In Australia and the United Kingdom it has been held that a single word is insufficient to comprise a copyright work. However, single words or a short string of words can sometimes be registered as a trademark instead.

o Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique

o In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office once an idea has been reduced to tangible form.

iv. Enforcement of copy right
Copyrights are generally enforced by the holder in a civil law court, but there are also criminal infringement statutes in some jurisdictions. While central registries are kept in some countries which aid in proving claims of ownership, registering does not necessarily prove ownership, nor does the fact of copying (even without permission) necessarily prove that copyright was infringed. Criminal sanctions are generally aimed at serious counterfeiting activity, but are now becoming more commonplace as copyright collectives such as the RIAA are increasingly targeting the file sharing home Internet user. Thus far, however, most such cases against file sharers have been settled out of court.

v. Exclusive rights
Several exclusive rights typically attach to the holder of a copyright:
o to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
o to import or export the work
o to create derivative works (works that adapt the original work)
o to perform or display the work publicly
o to sell or assign these rights to others

to transmit or display by radio or video

v. Goods registered under trade mark
Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Specifics vary by jurisdiction, but these can include poems, theses, plays, other literary works, movies, dances, musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television broadcasts, and industrial designs. Graphic designs and industrial designs may have separate or overlapping laws applied to them in some jurisdictions.

3. Trade marks
i. What is trade marks?
A trademark or trade mark (represented by the symbol ™ or ®)[1] or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States[6].

ii. How can trade mark be obtained?
Trade mark can be obtained by-
o may be established through actual use in the marketplace, or
o through registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction
o In many jurisdictions, trademark rights can be established through either or both means.
o Certain jurisdictions generally do not recognize trademarks rights arising through use (e.g. China or European Union
o In cases of dispute, this disparity of rights is often referred to as "first to file" as opposed to "first to use".

iii. Enforcement of trade marks
If a trademark has not been registered, some jurisdictions (especially Common Law countries) offer protection for the business reputation or goodwill which attaches to unregistered trademarks through the tort of passing off. Passing off may provide a remedy in a scenario where a business has been trading under an unregistered trademark for many years, and a rival business starts using the same or a similar mark.

Unauthorized use of a registered trademark need not be intentional in order for infringement to occur, although damages in an infringement lawsuit will generally be greater if there was an intention to deceive.

iv. Maintaining a trade mark-
Trademarks rights must be maintained through actual lawful use of the trademark. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. In the case of a trademark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of "non-use". All jurisdictions with a mature trademark registration system provide a mechanism for removal in the event of such non use, which is usually a period of either three or five years. The intention to use a trademark can be proven by a wide range of acts as shown in the Wooly Bull and Ashton v Harley cases.

v. Goods registered under trade mark
An individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States[7].

4. Comparison between trade mark and service marks
Sl. No.
Trade marks
Service marks

1. A trademark or trade mark (represented by the symbol ™ or ®)[1] or mark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities.
a trademark used to identify a service rather than a product is called a service mark or service mark.

2. The use of "package" to place the mark on, is the practice for trademarks.
It is the mark is used on the advertising of the service rather than on the packaging or delivery of the service

3. Trade mark is generally a sign or a logo
if the service deals with communications, it is possible to use a service mark consisting of a sound (a sound mark) in the process of delivering the service. This has been done in the case of AT&T

4. A trademark may be established through actual use in the marketplace and may not be registered
Under U.S. law, service marks have a different standard of use in order to count as a use in commerce, which is necessary to complete registration and to stop infringement by competitors.

5. A trademark normally needs to be used on or directly in association with the sale of goods, such as on a store display.
As services are not defined by a concrete product, use of a service mark in advertisements is instead accepted as a use in commerce.

5. When opposition comes what the defenses available when I P R’s are registered?
i. Trade marks- Defendants in a trademark infringement or dilution claim can assert basically two types of affirmative defense, namely, Fair use occurs when a descriptive mark is used in good faith for its primary, rather than secondary, meaning, and no consumer confusion is likely to result. in one case, a court held that the defendant's use of "fish fry" to describe a batter coating for fish was fair use and did not infringe upon the plaintiff's mark "Fish-Fri." Zatarain's, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983). Such uses are privileged because they use the terms only in their purely descriptive sense.

Some courts have recognized a somewhat different, but closely-related, fair-use defense, called nominative use. Nominative use occurs when use of a term is necessary for purposes of identifying another producer's product, not the user's own product. For example, in a recent case, the newspaper USA Today ran a telephone poll, asking its readers to vote for their favorite member of the music group New Kids on the Block.

Finally, certain parodies of trademarks may be permissible if they are not too directly tied to commercial use. The basic idea here is that artistic and editorial parodies of trademarks serve a valuable critical function, and that this critical function is entitled to some degree of First Amendment protection. The courts have adopted different ways of incorporating such First Amendment interests into the analysis.

a risqué parody of an L.L. Bean magazine advertisement was found not to constitute infringement. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir. 1987). Similarly, the use of a pig-like character named "Spa 'am" in a Muppet movie was found not to violate Hormel's rights in the trademark "Spam." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996). On the other hand, "Gucchie Goo" diaper bags were found not to be protected under the parody defense Gucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977). Similarly, posters bearing the logo "Enjoy Cocaine" were found to violate the rights of Coca-Cola in the slogan "Enjoy Coca-Cola Coca- Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Thus, although the courts recognize a parody defense, the precise contours of such a defense are difficult to outline with any precision.

ii. Copy right- The two most important defenses to copyright infringement are the first sale doctrine and fair use.

The first sale doctrine is a defense to infringement of the distribution right. It permits a lawful purchaser of a copyrighted work to resell or otherwise dispose of it. This, however, is not a defense to the reproduction right.

Fair use is an affirmative defense, but its application will vary greatly depending on the facts and circumstances of the case. Courts apply a four part balancing test examining the scope of infringement, the effect on the copyright owner's rights (e.g. his or her ability to sell the work), the amount of the work copied, and the purpose of the infringement. Courts have held that a non-commercial use is not fair use when it has a substantial market effect. In cases with a small-scale impact, courts are more receptive to arguments regarding the effect on the copyright owner's market or potential market.

iii. Patents- The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. In case of a medical procedure patent issued after 1996, a U.S. infringer may also raise a statutory safe harbor defense to infringement.

Research for "purely philosophical" inquiry is not an infringement, but research directed to commercial purposes is - unless the research is directed toward obtaining approval of the Food and Drug Administration (FDA) for introduction of a generic version of a patented drug (see Research exemption and Hatch-Waxman Act).

6. Conclusion
Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism or intellectual monopoly, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. Although the term is in wide use, some critics reject the term "intellectual property" altogether. Richard Stallman argues that it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He suggests the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues[8]”. These critics advocate referring to copyrights, patents and trademarks in the singular, and warn against abstracting disparate laws into a collective term.
-------------------------------------------------------------------------------
[1] World Intellectual Property Organization.
[2] ^ A Brief History of the Patent Law of the United States
[3] Jewish Law and Copyright
[4] ^ The styling of trademark as a single word is predominantly used in the United States and Australia, while the two word styling trade mark is used in many other countries around the world, including the European Union and Commonwealth and ex-Commonwealth jurisdictions (although Canada officially uses trade-mark pursuant to the Trade-mark Act, trade mark and trademark are also commonly used).
[5] Restatement (Third) of Unfair Competition § 9 (1995)
[6] Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002)
[7] Restatement (Third) of Unfair Competition § 9 (1995)
[8] The New York Sun Fighting for Intellectual Property Rights

Authors contact info - articles The  author can be reached at: shuchi.lawstudent@legalserviceindia.com




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Article Comments

Posted by Gobinda Chandra Das on November 12, 2010
Thanks a lot

Kindly elaboraote briefly the difference between the patent act and intellectual property act

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