INTELLECTUAL PROPERTY ISSUES

Intellectual property (IP) refers to creations of the mind such as inventions, literary and artistic
works; designs; and symbols, names and images used in commerce.
Intellectual property rights are the legal rights that cover the privileges given to individuals who
are the owners and inventors of a work, and have created something with their intellectual
creativity. Individuals related to areas such as literature, music, invention, etc., can be granted
such rights, which can then be used in the business practices by them.

The creator/inventor gets exclusive rights against any misuse or use of work without his/her
prior information. However, the rights are granted for a limited period of time to maintain
equilibrium.

The following list of activities which are covered by the intellectual property rights are laid
down by the World Intellectual Property Organization (WIPO) −
 Industrial designs
 Scientific discoveries
 Protection against unfair competition
 Literary, artistic, and scientific works
 Inventions in all fields of human endeavor
 Performances of performing artists, phonograms, and broadcasts
 Trademarks, service marks, commercial names, and designations
 All other rights resulting from intellectual activity in the industrial, scientific, literary, or
artistic fields

Types of Intellectual Property Rights

Intellectual Property Rights can be further classified into the following categories −
 Copyright
 Patent
 Patent
 Trade Secrets
  Industrial designs

Patents
A patent is an exclusive right granted to the inventor, to exclude others from using his invention
in any manner without his permission. It is pertinent to note that this invention can either be a
product or a process, that encompasses a novel or innovative solution and that the same is
industrially applicable.
Since the rights are granted only to the registrant, they create a monopoly for him over the
subject matter of the patent in the country their patent gets granted in.
Once the patent is registered, it is valid for a period of 20 years.
It is through registration of a patent that the inventor can bear the fruits of his creative mind and
receive benefits, which may or may not be limited to monetary gains alone.
Once the patent is registered in the name of the patent holder, no other person can commercially
manufacture, use, distribute, import or sell the subject of that patent without the authority of
patent holder.
In the event of unauthorized usage or infringement, the patent holder can enforce his rights in a
court against the infringer. On one hand, the registration helps in keeping a check on the
exclusive rights, on the other hand, it also empowers the patent holder to grant a license of his
invention to any third party as per the mutually agreed terms. The registrant may also benefit
from assignment or sale of his invention to a third person, who can become the owner of that
patent after the legal formalities are complied with.

On the expiry of the period of registration of a patent, its exclusivity is terminated and the
invention enters into the public domain. Thereafter, the invention can be commercially exploited
by any person without requiring permission or authority from the patent holder.
Patents are usually classified into three broad categories as per the protection accorded to
patents: Utility, Design and Plant Patents.
Different Types of Patents

Utility Patent

Utility patents refer to those patents in which the functional aspect of the patent is protected, i.e.
how the invention works. It is the most common of all the categories. Under utility patents, the
subject matter may include new and useful machine, process, compound, or any improvement of
any existing machine, process or compound. These patents can be further divided into electronic,
chemical, software, mechanical or any other field depending on the invention.

Design Patent

Design patents refer to the patent on appearance, shape or configuration of the object. It is
important that this new design must be an integral part of that object.

Plant Patent

Plant patents, as the name indicates, refer to patent to protect a new and different variety of a
plant. In this case, the plant should be able to reproduce using grafting of cutting of that plant,
which is also termed as asexual reproduction.

Trademarks
A trademark is a sign capable of distinguishing the goods or services of one enterprise from
those of other enterprises.
A trademark is a distinctive sign which helps the consumers in identifying the source of
particular goods or services.
Trademarks date back to ancient times when artisans used to put their signature or "mark" on
their products.

It can be in the form of text, word, numeral, phrase, symbol, design, signature, smell, shape,
color, sound, packaging, texture or combination of any of these elements.
The intent behind a unique trademark is that the consumer can associate the specific mark with
the manufacturer of goods or service providers in case of services. It helps in assuring the
customers that the goods are of a certain quality and type.
It also creates goodwill or reputation for that manufacturer or service provider. e.g. when a
consumer looks at a new product with this symbol below, he can easily understand that the
particular product belongs to Apple Inc. This is the power a symbol can create and earn goodwill
for the trademark owner.

Trademark is a territorial right, which means that this right is restricted by the geographical
boundaries of a country. E.g. the trademark ‘APPLE’ is not registered in the name of Apple Inc.
in China.
Thus, it is wise to choose a mark that is fanciful or arbitrary and cannot be easily confused with
an existing mark. This would ensure that the mark gets registered without any objections from
the Trademark Office or oppositions from a third party using a similar or identical trademark.
A trademark application must be filed before the Trademark Office of the country in which the
mark needs to be protected. The applicant must also correctly choose the goods or services he
intends to cover for that particular trademark.
Once a trademark is registered in the name of a registrant, it always remains in his name and
unlike patents, this right does not expire. The only requirement is the submission of a renewal
application with the requisite fees before the term period ends.

Copyright
Copyright is a legal term used to describe the rights that creators have over their literary and
artistic works.

Copyright refers to the rights granted to creators, authors, artists, and composers for their
‘original’ creative work or to performers, artists, and broadcasters for the related rights.
Works covered by copyright range from books, music, paintings, sculpture and films, to
computer programs, databases, advertisements, maps and technical drawings.
Like patent laws, copyright is also a monopolistic right.
Copyright gives exclusive right to sell, publish and reproduce, any literary, musical, dramatic,
artistic or architectural work created by the author.
Thus, the kinds of works which are covered by copyrights are innumerable and include books,
stories, novels, poems, plays, newspapers, magazines, advertisements, movies, computer
programs, databases, musical compositions, songs, choreography, videos, paintings, drawings,
photographs, sculpture, architecture, maps and technical drawings.
However, it is pertinent to note that copyright covers only ‘tangible’ forms of creations and not
mere ideas.
The copyright helps to generate financial benefits for the creators or authors of work by selling
them, publishing it, performing the same or transferring the rights of the work to any other
person.
Copyrights, like trademarks, are territorial rights and certain requirements may vary from
country to country.
As regards the term for registration of a copyright, it is like patent, where after the term comes to
an end or expires, the work moves to the public domain.
The copyright created by an individual last for the life of the author, and an additional 70 years.
Whereas, in case of works created anonymously, pseudonymously and for hire, the protection
lasts for 95 years from the date of publication or 120 years from the date of creation, whichever
is lesser.

Industrial designs
Industrial Design (ID) is the professional practice of designing products, devices, objects, and
services used by millions of people around the world every day.
Industrial designers typically focus on the physical appearance, functionality, and
manufacturability of a product, though they are often involved in far more during a development
cycle. All of this ultimately extends to the overall lasting value and experience a product or
service provides for end-users.
An industrial design constitutes the ornamental or aesthetic aspect of an article. A design may
consist of three-dimensional features, such as the shape or surface of an article, or of two-
dimensional features, such as patterns, lines or color.

According to Industrial Property Act 2001, an industrial design is defined as “any composition of
lines or colors or any three dimensional form whether or not associated with lines or colors,
provided that such composition or form gives a special appearance to a product of industry or
handicraft and can serve as pattern for a product of industry or handicraft”.

Every object that you interact with on a daily basis in your home, office, school, or public setting
is the result of a design process. During this process, myriad decisions are made by an industrial
designer (and their team) that are aimed at improving your life through well-executed design.

Geographical indications
Geographical indications and appellations of origin are signs used on goods that have a specific
geographical origin and possess qualities, a reputation or characteristics that are essentially
attributable to that place of origin. Most commonly, a geographical indication includes the name
of the place of origin of the goods.
A geographical indication (GI) is a sign used on products that have a specific geographical origin
and possess qualities or a reputation that are due to that origin.
In order to function as a GI, a sign must identify a product as originating in a given place,
In addition, the qualities, characteristics or reputation of the product should be essentially due to
the place of origin. Since the qualities depend on the geographical place of production, there is a
clear link between the product and its original place of production.
They not only provide a way for business to leverage the value of their geographically unique
products. But also inform and attract customers.

Trade secrets
It refers to the secrets of a business, which helps it gain an economic advantage over others. In
case the trade secret is leaked, the business may suffer numerous losses and irreparable damage
to reputation. Trade secrets can be in the form of confidential information, data, formula,
composition, process, design, method or compilation or combination of one or more, which
should remain with the business alone.

Trade secrets are IP rights on confidential information which may be sold or licensed. The
unauthorized acquisition, use or disclosure of such secret information in a manner contrary to
honest commercial practices by others is regarded as an unfair practice and a violation of the
trade secret protection.
Trade secrets are accorded protection without any registration.
A formidable example of the same is the recipe of Coca-Cola. It is a fact that the recipe of Coca-
Cola was never patented, as it would cause the recipe to be leaked. The officials of Coca-Cola
are so particular about it that it is said that the two employees who know the recipe, only know
one half of it each and no one knows the recipe as a single piece of information.
Another example is the algorithm of search followed by Google. It has to date, never revealed
the complete code, even after multiple revisions.

Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights or the

TRIPS Agreement defines key aspects of a trade secret as:
1. The information must be secret,
2. It must have commercial value, and
3. It must have been subject to reasonable security by the rightful holder to ensure the secrecy
of information.

Since each and every business has trade secrets, which may vary in form, but are essential for
their operations and commercials, the countries have specific laws to accord protection to trade
secrets and the procedure to handle its breach.
In the majority of cases related to leakage of trade secrets, it has been observed that the company
did not have proper procedures and systems to check the security or the employees who caused
it.

If a business owner employs proper precautionary measures, it would ensure that there is no loss
of trade secrets. Some of the precautions may be:
 1. Ensure that the trade secret is stored in a safe and secure manner by deploying physical as
well as electronic security,
2. Restrict access to the trade secret to only those individuals who must need to know that
information,
3. Follow the measures of marking confidential information,
4. Draft and enforce non-disclosure and confidentiality agreements with all employees,
vendors or third parties,
5. Assess risks to trade secret breaches and action mitigation plan accordingly,
6. Establish procedures and policies in the system by design, to ensure the security of trade
secrets,
7. Conduct awareness sessions and training for employees,
8. Conduct exit interviews with employees leaving the business to ensure the return of all
confidential information,
9. Establish due diligence and on-going third-party management policies and procedures,
10. Monitor the action plan and improve it, as and when required.

The cyber-attackers or hackers are always eyeing the trade secrets to blackmail the businesses.
The case of hacking of scripts of episodes of Games of Thrones is an example in this regard.
However, even after the attack, the producers were able to pull off monetary gains only with the
proper use of their IPRs.

Advantages of Intellectual Property Rights

Intellectual property rights are advantageous in the following ways −
 Provides exclusive rights to the creators or inventors.
 Encourages individuals to distribute and share information and data instead of keeping it
confidential.
 Provides legal defense and offers the creators the incentive of their work.
 Helps in social and financial development.