FET501_FAD501_FSH501_08_02 IPR

7/17/2019 FET501_FAD501_FSH501_08_02 IPR

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©M. S. Ramaiah University of Applied Sciences

1Faculty of Management and Commerce

Module Code: FET501/FAD501/FSH501

Module:

Principles of Management and Soft Skills Development

Session Delivered By:

Prof. H.N. NageshaEmail: [email protected]

Session_08_02: Intellectual Property Rights

mailto:[email protected]

mailto:[email protected]

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Session Objectives

At the end of this session, students will be able to:

• Explain concepts and importance of Intellectual Property Rights

(IPR)

• Explain key features of Patents Act, Designs Act, Copyrights Act,

Trade marks Act and Geographical Indications

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Session Contents

• Intellectual Property Rights

• Patents

• Designs

• Copyrights Act• Trademarks Act

• Geographical Indications

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Intellectual Property Rights

Property: Works on the principle of exclusion

• It allows the owner, enjoyment without interference

• Owner can use it, gift it sell it or destroy it

Types of property: Moveable and Immovable property

• Intellectual property is intangible

• It can create useful and valuable things – idea can be used to

create property

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• Intellectual property (IP): Refer to a number of distinct types

of creations of the mind for which a set of exclusive rights

are recognized and the corresponding fields of law

• Owners are granted certain exclusive rights to a variety of

intangible assets

Ex: Musical, literary, and artistic works; discoveries and

inventions; and words, phrases, symbols, and designs

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• India is a signatory of Trade-Related aspects of Intellectual

Property rights (TRIPs) in the Uruguay Round agreement

of 1995

• India is now bound to amend existing laws in order to

make it to make it TRIPs-compliant

• The government has initiated action to bring in the

requisite changes

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Intellectual Property Right

• India has enacted fully TRIPs-compliant Trademarks Act,

Copyright Act, Designs Registration Act, Geographical

Indications Act and Protection of Layouts for Integrated

Circuits Act

• A Novel Plant Varieties Protection and Farmers Rights Act

2001 and the Bio-diversity Act 2002 are also in Place

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Common types of intellectual property rights are:

• Patents

• Industrial design rights

• Copyrights

• Trademarks

• Trade secrets in some jurisdictions


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For Most Products Every Form of Intellectual

Property Rights Can be obtained

CAMERA

“PATENT” For every individual improved mechanism

“DESIGN” For outer shape & Contour / Configuration

“TRADE MARK”

Brand name or Logo for goods denoted as ®

“COPY RIGHT” For Instruction / manual booklet denoted as ©

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CD Player

Industrial design

protection for 3D

shape

Brand name-

registered undertrademark

Music played on the CD

player is protected by

copyright

Technical parts &

mechanisms can be protectedunder Patents



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Pressure

Cooker

“PATENT” For every individual improved mechanism

“DESIGN” For outer shape & Contour/Configuration

“TRADE MARK” Brand name or Logo for goods denoted as ®

“COPY RIGHT” For Instruction/Manual booklet denoted as ©



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Patents

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• Inventions are subject matter of patents

• The Patents Act, 1970: Deals with the patenting

• Patenting process:

A person applies to the controller of Patents

The Controller checks for claim with respect to novelty

and usefulness of ideas and other requirement of the

Law

The person gets a patent right for certain period

Exclusive right to use invention

Patents

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Patent Grant Procedure

Filing of patent application

Publication after 18 months

Pre Grant Opposition /

Representation by any person

Request for examination

Examination: Grant or Refusal

Publication of Grant of patent

Post Grant Opposition to grant of patent (Constitutionof Opposition Board)

Early Publication

Decision By Controller

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Anatomy of a Patent

Title, Inventors, Assignees, Date of filing, Date of Publication, Date of Grant,

International Classification, National Classification Application number, PatentNumber; Abstract

Background of The Invention

Description of The Prior Art

Summary of The Invention

Brief Description of The Drawings

Detailed Description

Preferred Embodiments

Claims

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Organization Structure – IP Offices

Ministry of Industry &Commerce

Office of the Controller General of Patents, Designs

And Trademarks

Designs wing(Kolkata)

Patent office( Kolkata, Delhi,

Mumbai,Chennai)

Trade MarksRegistry

( Kolkata, Delhi,Mumbai,

AhmadabadChennai)

GeographicalIndications

Registry( Chennai)

PatentInformation

Service( Nagpur)

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•

Patentee: A person in whose favour a patent is granted

• A patentee can use, sell to another person, or grant a

license to use the patent to others

• Any use without license or authorisation from patentee is

an infringement

• The patentee can move the court to restrain the violator

and claim damages

Patents

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•

What can be Patented?

• An invention can be patented

• For an idea to qualify as an invention, it has to fulfill the

requisites of:

Novelty or inventiveness

Non-obviousness

Usefulness

Patents

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•

An invention can be either a process or of a product

• Product: a watch, cycle, car, a television, or a new

antibiotic

•Process: The process of making a chemical/medicine can

be an invention

Product V/s Process Patents

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•

Section 5 of Act, do not permit patents in case of certainproducts

i. Substances intended to use, or capable of being used, as food or

medicine or drug

ii. Relating to substance prepared or produced by chemical

processes

• A person cannot apply for patents of substance, but apply

for the methods or process of manufacturing

Product V/s Process Patents

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Options Available to the IPR Holder

• Exploit the IPR himself/herself

• License the IPR to another party or Barter Rights

• Cross License for mutually independent working and / or

collaborative working

• Assign the IPR to another party (s) for an appropriate return

• Establish a franchise system involving other parties

• Take action against those who infringe his rights

• Let the rights selectively lapse in certain countries

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Calvin Klein Inc. signed a licensing deal with an affiliate of Italian manufacturer

Fingen SpA to reintroduce CK Calvin Klein clothing line and accessories in Europeand the Middle East starting next spring.

Source: fashiongates.com

Hello Kitty's parent company, Sanrio, signed a licensing deal with powerhouses

Judith Leiber and Kimora Lee Simmons to produce a luxury accessory collection

of the girls' icon

Hello Kitty – New Jewellery Collection by Kimora Lee Simmons and

Judith Leiber

Calvin Klein Expands Bridge Business


http://www.fashiongates.com/magazine/porsche-12-10-05.html

http://www.fashiongates.com/magazine/Calvin-Klein-Abroad-31-05-2005-78061.html

http://www.fashiongates.com/magazine/Item233.html



http://www.fashiongates.com/magazine/Hello-Kitty-Collection-by-Kimora-Lee-Simmons-and-Judith-Leiber-31-05-05-73061.html










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German luxury automaker Porsche and its licensing and tradingcompany Porsche Lizenz- und Handelsgesellschaft mbH & Co KG

(PLH) intend to push the worldwide expansion of the Porsche

Design brand and to introduce a new store concept along with

new licenses, including men’s sportswear line

Expectations High for Beyonce`s Ready-to-Wear Line

International film and recording star, Beyonce Knowles, entered into a

joint venture with Arthur and Jason Rabin to provide the infrastructure

for licensing and brand management to the new Beyonce fashion label

Source: fashiongates.com

PLH Plans Worldwide Expansion of Porsche Design


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Patents Not Only For Major Technological

Breakthrough

Even for any small ‘ incremental ’ inventions

• LAZLO biro’s - ball point pen

• Ring – pull for cans of beverages

Individuals OR Companies-normally do not clearly recognize the “TRUE

MARKET VALUE’ for a particular Invention

• Anti theft device for motor cars-wheel clamp

• Tetra pack style of cartons for milk & fruit juice

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• Company could get a patent right in India and do not produce

or give license to anyone to produce in India

• Result: India may have to import at high cost

• India’s industrial development would be slowed down, result

in draining of the foreign exchange

• Company could curtail availability, control price and earn huge

profits

• After three years, any person could make an application for

compulsory licensing

Compulsory Licensing

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• Applicant has to establish that ‘reasonable requirement of

the public have not been satisfied or the prices charges are

unreasonable’

• Inventions deemed for ‘Licenses to Right’ after 3 years are:

Substances used as food/ medicines/ drug

The manufacturing methods/ processes

Compulsory Licensing

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Designs

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Designs

• The existing legislation on industrial designs in India is

contained in the New Designs Act, 2000

• India had achieved a mature status in the field of industrial

designs

• The present legislation is aligned in view of the changed

technical and commercial scenario and made to conform to

international trends in design administration

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Designs

The protection is only for the appearance of the

article and not how it works

Design registration is intended to protect designs

which have an industrial or commercial use

Duration of protection is initially for 10 years and

extendable for another term of 5 years

Designs of stamps, labels, tokens, cards, cartoons,

or parts of an article not sold separately, cannot be

registered

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Copyrights

• India has a very strong and comprehensive copyright law -

Indian Copyright Act, 1957

• The amendment in 1994 were a response to technological

changes

• Major Areas:

– Communications (broadcasting and telecasting)

– The emergence of new technology (computer software)

h

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Copyrights

• The Act list wide areas of expressions – art, literature, music,

and film which can be copyrighted

• The copyrighting is in favour of author/creator

• The Act provides mechanism to registering work with the

government for extended protection

• The Act prohibits the copying or reproduction of copyrighted

material

• Unauthorized user can be prosecuted

C i h

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Copyrights

• The 1999 amendments have made the Copyright Act fully

compatible with TRIPS

• The amended law has provisions to protect performers’ rights

as envisaged in the Rome Convention

• The Indian Copyright law is one of the most modern copyright

laws in the world

C i ht

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Copyrights

• Important requirement is that the work must be original

• Without copyright protection, any one could copy another’s

work and become owner of the work

• The copyright is not related to not ideas, but to their

expressions

• Expressed in a tangible form

•

Expressed in sentences, paragraphs or a novel – literary workto be written or musical work recorded

C i ht

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Copyrights

• Author: is a person who creates the work and owns it

• Employer: Have the ownership on a work produced by an

author under a ‘contract of service or apprenticeship’

•

A person who commissions another to take a photo, draw apainting will be the owner

• Musical work: composer is the owner

•Film and sound recording: producer is the author

C i ht

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Copyrights

Territorial limitationsA copyright arises in the following cases:

i. The work is first published in India

ii. The work is first published outside India, but the author is a citizen of India

iii. In case of unpublished work, the author is, at the date of making work, a

citizen of India or domiciled in India

iv. In case of an architectural work of art, the work is located in India

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Copyrights

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Copyrights

Rights of Owner

• The Act grants exclusive rights to the owner of a copyright in a

cinematograph film:

i. To make copies of the film

ii. To communicate the film to the public, by broadcasting or other

means

• Records: similar rights have been granted

•Computer softwares: are covered under the head ‘literary, dramatic and

musical work’. Author can ‘sell or give on commercial rental’

Copyrights

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Copyrights

Activities which are not Copyright Violations

i. A fair deal for the purposes of private use, research, criticism or review

ii. A fair deal for the purposes of reporting current events in a newspaper,

magazine or periodicals

iii. For the purposes of state or functioning of law, judicial proceedings

iv. Reading or reciting in public

v. Publication of short passages, for educational purposes

vi. By teacher or pupil in the course of instruction

Copyrights

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Copyrights

Activities which are not Copyright Violations

vii. Making upto three copies of book for a public library, if such book is not

available for sale in India

viii. Reproduction or publication of any matter published in official gazettes, Acts

enacted by the Parliament or State Legislatures

ix. Reproduction or publication of any committee, commission, council

appointed by the legislatures, unless the government has prohibited it

x. Reproduction or publication of any judgment or order of a court, tribunal, or

other judicial authority, unless it has been prohibited by the court

Copyrights

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Copyrights

Duration of Copyright Protection

• Literary, dramatic, musical or artistic work: when published during life time

of the author, copyright subsists during the lifetime of the author + for the

next sixty years from the death of the author

• Joint authors: 60 years to be counted after the death of author who dies

last

• Work which is anonymous or pseudonymous copyright: 60 years from the

date of publications

• Photographs and films: for a period of sixty years from the date its

publications

Copyrights

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Copyrights

Broadcast Reproduction Rights

• No person can re-broadcast a broadcast

• Ex- If a television channel is broadcasting a sport event, no other

broadcaster can, without licence from the owner, can record or take the

feed and broadcast it

• No person can make a recording of a broadcast

• No person is to sell or hire a broadcast without licence from the owner

• Exceptions: private use, reporting in current events, or for the review,

teaching and research

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Copyrights

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Copyrights

Registration of Copyrights

• While applying for registration details required are - All the

details of the work, as contained in the rules

• To submit a copy of work

• The Registrar receives application, also receives objections on

the applications, examines correctness of the information

• Upon satisfaction, work is registered and certificate issued

Copyrights

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Copyrights

Copyright Infringement

Infringement include a person:

i. Copying or reproducing a work

ii. Who commercially deals in, by selling, hiring or importing a

pirated CD

iii. Permits for profit, the use of place for communication of the

copyright work to the public

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Fryett’s Fabrics Settles Hathi Design Infringement Claim Against

Natural World

• Tessitura A R Export SRL manufactured for Fryett’s, as exclusive distributor,

a distinctive cushion panel design known as Hathi, marketed by Fryett’s

within its Porter & Stone collection from June 2000

• By mid 2002 Fryett’s had sold over 45,000 metres of Hathi

• Natural World then began to sell a similar design marketed as Festival

Elephant at prices which undercut the Hathi product

• Fryett’s filed suit against Natural World alleging infringement of copyright

and seeking an Injunction and damages

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Natural World’s

Festival ElephantFryett’s Hathi

Decision in Favour of Fryett: Payment of £55,000, together with undertakings from Natural

World to withdraw its Festival Elephant cushion and to deliver up all residual stocks of that

design to Fryett’s.

Fryett’s Fabrics Settles Hathi Design Infringement Claim Against

Natural World

Y S i t L t R l h L

http://www.britishdesign.co.uk/new/dd/images/news/full/336e5d0517385bb3f3ed22d5f5ddfe23.jpg

http://www.britishdesign.co.uk/new/dd/images/news/full/336e5d0517385bb3f3ed22d5f5ddfe23.jpg

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• In 1970, the French designer Yves Saint Laurent (YSL) created and

successfully marketed a long black sleeveless tuxedo-like evening dress,

which the YSL fashion house reintroduced in their 1992 collection.

• Ralph Lauren was selling a similar version of the dress in their 1992

collection.

• YSL brought suit against Ralph Lauren under copyright infringement,

design infringement and unfair competition.

Yves Saint Laurent vs Ralph Lauren

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Trade Marks

T d k

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• A Trademark is any sign which can distinguish the goods of one

trader from those of another

• Sign includes, words, logos, pictures, or a combination of these

Trademarks

Trademarks

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• A trade mark is used as a marketing tool so that customers can

recognize the product of a particular trader

• To register a trade mark, the mark must be:-

Distinctive, and, not deceptive, or contrary to law or

morality, and, not identical or similar to any earlier marks

for the same or similar goods

Trademarks

Selecting a Trademark

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1. A word, letter or any combination thereof and simple indesign

2. If it is a word it should be easy to speak, spell and remember

3. The ideal word for a trade mark is an invented or coined word

4. Words which are laudatory or which directly describes thecharacter or quality of the goods should not be adopted

5. Geographical names connected with the reputation or quality

of the goods for which registration is sought should not be

adopted.

Selecting a Trademark

Registration of a Trademark

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Not possible to register a mark which is confusing with a trade

mark of another trader or a trade mark which describes the

character or quality of the goods

The mark should not conflict with a trade mark already

registered or pending registration in respect of similar goods

Registration of a Trademark

Trademarks

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• “ A merchant who affixed a mark on his goods obtained a

property right in the mark which he so fixed and the

property thus acquired like all other property, was under

the protection of law and for the invasion of the right of

the owner of such property”

Trademarks

Trademarks

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•

“A trader acquired a right of property in a distinctive mark

merely by using it upon or in connection with his goods,

irrespective of the length of such user and of the extent of his

trade and that such right of property would be protected by an

injunction restraining any other person from using the mark”

Trademarks

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The Act of 1999

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•

The Act has 34 classes of goods and 7 classes of services• The services covered banking, communication, education,

financing, insurance, chit funds, real estate, transport, storage,

material treatment, processing, supply of electrical or other

energy, boarding, lodging, entertainment, construction,

amusement, repair, conveying of news or information and

adverting

The Act of 1999

The Act of 1999

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• The duration of validity of trade mark is 10 years

• A single application can be made for registration in more

than one class

• The definition of a ‘trade mark’ may include the shape of

the goods, their packaging, and the combination of colors,

so long as the mark is capable of distinguishing the goods

and services of one from the goods and services of another

The Act of 1999

The Act of 1999

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•

An association can get a mark distinguishing the goods andservices of its members, registered as a collective mark

• Expansion of the meaning of Trademarks Infringement:

Protection is applicable for similar goods, dissimilar goods, and

business name of the firm

• Protection is applicable to existing foreign trademarks and well

known trademarks

The Act of 1999

Tommy Hilfiger Licensing Inc. vs. Nature Labs LLC

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The US District Court in New York dismissed Tommy Hilfiger Licensing Inc's suit

finding that "Timmy Holedigger", Nature Labs perfume for dogs, does not

infringe on the fashion designer and cologne maker's trademark.

Nature Labs sells its perfumes in pet and novelty stores,packaged in batches of three similar bottles,

bearing slogans like "strong enough for a man,

but made for a chihuahua." `

Tommy Hilfiger Licensing Inc. vs. Nature Labs LLC

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• The Court ruled that the perfume, called Timmy Holedigger, could not under

any circumstance be confused with Tommy Hilfiger cologne, nor could it be seen

as a competing product trading on the designer's good will.

• Besides, Nature Labs LLC, sells numerous other parody fragrances for pets,

including Pucci (Gucci), Bono Sports (Ralph Lauren's Polo Sports) and Miss

Claybone (Liz Claiborne).

• The Court observed that the other trademark holders have accepted the parody

and not challenged Nature Lab's Trademarks.

y g g

Trademarks Infringement

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Consumption Daily 6/29/2004

Beijing – 50,000 Counterfeit LV Bags Destroyed

The local Technical Supervision Bureau (TSB) in Beijing destroyed 50,000 Louis

Vuitton bags, worth RMB5 million

LV’s agent in China witnessed the destruction of the seized bags

China Intellectual Property News 7/3/2004Guangdong – Biggest Trademark Infringing Case

Guangdong AIC recently released information on a trademark infringing case

with an estimated total value of RMB11 million

The infringing products seized were mainly sportswear labeled “NIKE,”

“Adidas,” and other brands

Some of the infringing shoes included “NIKE” designs that are scheduled to be

launched in 2005.

Gillette

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• Manufacturers of male and female grooming products,

writing instruments and correction products, tooth

brushes, oral care appliances, and alkaline batteries

• Products include blades, razors, shaving preparations and

hair epilating devices among others

Gillette

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• Internationally recognised brand names such as BRAUN, PARKER

PEN, WATERMAN, LIQUID PAPER, ORAL B, DURACEL,...

• Flagship Brand .. GILLETTE

• Products protected and nurtured by Trademarks in various parts

of the world

Gillette

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Gillette Company Asset Values (US $ million)

Value ($m)

Total (%)

Working Capital

Fixed/Other AssetsIntangible Assets(est. 10% of TIC)Intellectual Property

2,850

5,1315,854

44,700

4.9

8.810.0

76.3

Total Invested Capital(TIC) 58,535 100.0

Source: PRICEWATERHOUSE COOPERS publication “ Valuation of Intellectual Property”

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Geographical Indications


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• An indication used to identify agricultural, natural or

manufactured goods originating from a definite territory in

India

• It should have a special quality or characteristics or reputation

based upon the climatic or production characteristics unique to

the geographical location.

• Ex: Darjeeling Tea, Kanchipuram Silk Saree, Alphonso Mango,

Nagpur Orange, Kolhapuri Chappal, Bikaneri Bhujia, ..


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• TRIPS provisions - For reciprocal protection; protection in the

country of origin is must

• Cases like Turmeric, Neem and Basmati

• India enacted the Geographical Indications of Goods

(Registration & Protection) Act, 1999 (with effect from 15th

September 2003)


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• Any association of persons, producers, organization established

by or under the law can apply representing & protecting the

interests of the producers

• The registration of a GI: Ten years

• Renewal is possible: Further periods of 10 years each


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• Trade mark:

A sign used in the course of trade

Distinguishes goods or services of one enterprise from

those of other enterprises

• Geographical Indication:

Used to identify goods having special characteristics

originating from a definite geographical territory

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Summary

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• Options available for parent holder: Exploit the IPR

himself/herself, License the IPR to another party or Barter

Rights, Cross License for mutually independent

• Design: The protection is only for the appearance of the

article and not how it works

• Wide areas of expressions – art, literature, music, and film

which can be copyrighted

Summary

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• A Trademark is any sign which can distinguish the goods of one

trader from those of another

• Geographical indication: used to identify agricultural, natural or

manufactured goods originating from a definite territory in

India

• GI should have a special geographical location quality or

characteristics or reputation - Darjeeling Tea, Kanchipuram Silk

Saree, Alphonso Mango, Kolhapuri Chappal, Bikaneri Bhujia, ..

FET501_FAD501_FSH501_08_02 IPR

Documents

Transcript of FET501_FAD501_FSH501_08_02 IPR