How to claim Intellectual property rights

With the global presence of businesses, products, ideas, and creative designs are reaching out to more consumers than in the past. Companies are known socially now through their brilliant ideas, application of technology, and constant churning out of innovative products. Some businesses discover existing techniques or practices that have not been utilized yet. A successful business involves creating ideas, executing, and protecting the same. 

Intellectual property claims are legal actions by one party against another when its intellectual property (IP) rights have been violated. Most companies consider their Intellectual Property their most valuable asset and can often move ahead to protect it if they feel any violation. Moreover, knowing what may constitute an infringement that could bring on an IP claim is crucial.  

Further, these help the country’s economic growth, create new employment opportunities and enhance the quality of life. Intellectual Property Rights are country-specific, meaning that one has to seek protection separately under relevant laws of different countries to get I.P.R. protection in that country.

Common Types of Intellectual Property

Copyright 

Copyright is the right to copy. In other words, the legal right of the intellectual property owner, copyright, is the right to copy in which the original creators of products and anyone they authorize have the exclusive right to reproduce the work.

Copyright only protects the expressions, not the ideas, concepts, modes of operation, procedures, or mathematical concepts. That means if there is some idea in your mind, then you will not get copyright protection for your idea. You will have to express your thoughts or opinions, like by writing them down or saving them in an electronic form.  

Patent

A patent is an intellectual property (IP) suitable for a technical invention. It permits you to avert others from using your invention for commercial purposes for up to 20 years. You have the right to decide who is allowed to produce, sell, or import your vision in countries where you own a valid patent.

Trademark

A trademark refers to a sign capable of making a difference between the goods or services of one enterprise and those of others. Intellectual property rights protect brands. It generates an image in the minds of the consumers about the product. It also limits the competitors from using similar signs and selling counterfeit products of inferior quality.

Design

Design is the overall visual aspect of an article which can include three-dimensional features, such as the configuration of an article, or two-dimensional features, such as patterns and lines. It gives modernist value to the report. 

Legislation governing the rights

Intellectual properties rights (I.P.R) in India are governed under the following Acts:

• The Copyright Act, 1957
• The Patents Act, 1970 (amended in 2005)
• Trade Marks Act, 1999'
• The Geographical Indication of Goods Act, 1999
• The Designs Act, 2000
• The Information Technology Act, 2000

How Intellectual Property is claimed?

Copyright Registration

Copyright in work is acquired automatically and does not require a formal application, i.e. the work gets secured by copyright as soon as it comes into existence. Registration is not essential for getting copyright in work. Moreover, the Indian Copyright Act provides for a copyright registration procedure. 

The application for registration can be filed for both published and unpublished works. Three copies of published works must be attached with the registration application. Section 44 to 50A of the Act stands out with Copyright Registration.

Process of copyright registration in India

1. Applying along with the prescribed fee.
2. Formality check.
3. Examination.
4. Entry in the register of copyrights.

The procedure of copyright filing

• File an application for registration on form XIV at the copyright office.
• Wait for an objection period of 30 days from the date of filing.
• Additional 45 days for removal of discrepancies.
• Maximum 2-3 months for registration.

Patent

Under Section 6 of the Act, the following persons can make a patent application which is the first inventor, an assignee of the faithful and first inventor, a legal representative, or a genuine and First inventor, Assignee, or Legal representative can file it alone or jointly with any other person.

Types of Application

• Provisional Application is filed in the case when the invention is still under trial or experimentation stage. 
• A regular application is a new application that is filed with complete specifications.
• A convention application is filed in the case of claiming a priority date based on a similar application filed by any other convention member country. 
• Patent Cooperation Treaty (PCT)National Phase Application provides for claiming a single patent application with the same effect in the designated countries.
• Application of Addition deals with the amendment of application and specification.

To get a patent secured for an invention, the applicant has to describe the design such that a person with expertise in the art can perform the invention after going through the description when the invention hasn't reached the final stage or is still under trial. 

Listed below are two advantages of a provisional application. 

• The applicant gets more time for his invention 
• The applicant receives a priority date. 

Trademark 

As per Section 18 of the Trademark Registration Act, a person who claims or desires to be the proprietor of the trademark concerning goods or services can apply for the registration of a brand. The application for trademark registration is required in writing to the Registrar. 

To make an application, the “person” under Section 18 of the Act includes:

A Natural Person, A Body Incorporate, A Partnership Firm, Hindu Undivided Family, Association of Persons (in case of collective Trademarks), Joint Proprietor, A Society, A Trust or, A Government Undertaking.

Under Section 24 of the Act, two or more persons can jointly apply for a trademark as joint proprietors.   

Trademark Registration Process

The trademark must fall within the definition of Section 2 (ZB) of the Act. 

It should not be a copy of some other trademark. So, the applicant must do a “trademark search” before applying for the registration to ensure that no similar brand is already available.  

Official research report and examination after that responding to questioning (If required)

Acceptance and publication.

Opposition period.

Then the application is filed before the Trade Marks Registry. 

Design  

As per Section 11 of the Act, design registration gives copyright security to the registered owner. However, the registration of creation and preservation under copyright does not exist as Section 15 of the Copyright Act provision, especially regarding registered designs that can be registered under the Designs Act. 

The protection under the Designs Act is not automatic as in the copyright act. Designs are required to be registered to get protection under the Designs Act. Section 4 of the Act deals with the prohibition of registration of specific techniques such as:

Methods that are not new or original.

It has been published or disclosed earlier.

Procedure for Design Registration:

• The design must fulfill the crucial requirements.
• It does not fall under Section 4 of the Act.
• The proprietor must apply for the registration of a new and original configuration under Section 5 of the Act. 
• The application is filed at the Office of the Controller General of Geographical Indications Patents, Designs, and Trademarks.

Implementing Intellectual Property rights

The primary purpose of acquiring intellectual property rights is to protect the fruits of one’s labor and intellect. But there will be no meaning to these intellectual property rights if they are not implemented with proper mechanisms of these rights. So, various laws in India relating to Intellectual Property Rights cover the implementing mechanism. 

Copyright

Copyright is violated when any person without having an appropriate license does anything that the copyright holder has an exclusive right to do. In the case of copyright infringement, both civil and criminal remedies are listed by the Copyright Act.

As per Section 62 of the Act, if any civil proceedings are instituted, the District Court will have jurisdiction over such matters, and the Code of Civil Procedure, 1908 will be applicable. Under Section 63 of the Act, the criminal remedies in the cases of copyright infringement where the accused can be either imprisoned for a period of 6 months to three years or gets a fine that can't be less than fifty thousand rupees and may reach two lakh rupees or both (in some cases).  

Patent    

Patent infringement is the violation of the exclusive rights of the registered proprietor. According to Section 48 of the Act, the patentee's rights are not disclosed when the patent is either a product, in process, or sometimes both. The registered proprietor has a special right to stop the third parties from the act of making, using, selling, importing or offering to sell the patented products or from the front of using that process to make the product.    

Listed below are two types of patent infringement: 

1. Direct Infringement
2. Indirect Infringement

No patent violation action can be instituted until a patent is granted to the patentee. This means the patentee or holder must hold a valid patent before creating any patent infringement suit.

Trademark 

According to Section 28 of the Act, a trademark registration gives some special rights to the proprietor of the trademark. As per Section 27 of the Act, proceeding for trademark infringement can't be started at the time of an unregistered trademark. So, the proceeding for trademark infringement can only be done after registering the trademark. 

The infringement of a registered trademark is understood under Section 29 of the Trademark Act. This provision list down various circumstances under which a registered trademark can be infringed, such as:

When a non-registered proprietor has the same trademark as that registered.

To reduce confusion when the identity of one trademark is similar to another registered trademark.

When an unauthorized person uses the registered trademark for their packings or goods or exposes those products in the market.

When an unauthorized person (person who doesn't have the right to) uses a registered trademark for advertising, it affects the reputation of the registered proprietor’s product. 

Design

Registration of a design refers to a special right to the proprietor to use, sell, or assign the registered design. Section 22 of the Design Act deals with piracy of registered design if certain acts are done without the registered proprietor's permission. 

The acts which result in piracy or infringement are:  

• When any unauthorized person fraudulently imitates the registered design on any article for sale without any written consent of the registered proprietor. 
• When any unauthorized person, without the permission of the registered proprietor, imports for sale.
• When any person publishes a fraudulent of the registered design.  

The Designs Act provides remedies in cases of civil remedies of piracy and infringement and does not provide any criminal remedies. A registered proprietor can use his rights in infringement cases by instating a civil suit in any court.

The court is permitted to sanction an injunction, recovery of damages, and penalty of not less than Rs.25,000.

Conclusion

The Significance of Intellectual Property Rights is felt all across the globe. We come across various scenarios where there is a violation of Intellectual Property Rights, which goes neglected. But India also understands the need for Intellectual Property Rights (I.P.R). The main problem is that people are not aware of their rights. There is a lot more that we still have to travel to make everyone aware of their rights related to Intellectual Property. 

About The Author:

Adv. Sidhartha Das brings 16 years of extensive legal expertise in intellectual property law, specializing in Trademark, Patent, Design, Copyright registration, and Writ petitions. His proficiency extends to handling complex cases involving Opposition, Rectification, and Interlocutory Applications, as well as litigation across commercial courts, high courts, and the Supreme Court of India. As a Senior Partner at Auromaa Associates, a leading legal firm in Kolkata, he plays a pivotal role in guiding high-stakes legal matters. In addition to intellectual property, his practice encompasses Arbitration, international commercial arbitration, and matrimonial suits in the high courts.