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Intellectual Property Rights-Issues Involved

Intellectual property is a key aspect for economic development~ Craig Venter

The legal rights are given to the person who invented / created something new and different which had not been done before. The legal rights are given to the person for a period of time or his delegate to make full use of that particular idea. There are mainly three types of intellectual property rights: copyrights, trademark and patents.

  1. Copyright:

    This right is given to the person who creates something for the public such as books, movies, songs etc. The rights are automatically given to the creator and the person has rights to make copies of the product, distribute in public or use the content for any live performance.
     
  2. Trademark:

    It is a legal right given to any name, logo, symbol or slogan for their personal use and to publicly show their brand. For example: Nike has a Tick sign and a slogan Just Do it. Copying the content can be charged section 63 of copyright act 1957.
     
  3. Patents:

    The title is giving the rights to its owner(s) which forbids others / competitors to make such products for a period of time.

There are many issues which a content creator goes through when he/she wants to get an Intellectual Property Right.

  1. Patent Evergreening Prevention: The most common intellectual property right problem is to prevent the Patent Evergreening Prevention so that any person / company cannot patent by making minor changes to something forever. Section 3(d) in the Indian Patent Act is one of the biggest issues with the Intellectual Property Right.
     
  2. Subsidies and IPR: The subsidies provided to people specially to farmers to decrease their financial strain. A big number of subsidies is food, subsidy, education subsidy, fertilizer subsidy etc. To completely implement Trade-Related Aspects of Intellectual Property Rights (TRIPS) these subsidies should be eliminated or decreased. The Government of India should make a balance between giving Intellectual Property Rights and giving subsidies.
     
  3. The Product Patent Process: A product patent safeguards the goods. The Product Patent process gives a large amount of protection to the product. The problem lies that the patent is given for the process via which one makes the product rather than the product. Which reduces monopoly in the market. India is a part of Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, this agreement needs that all is members should change their patent regime from giving patent to process to giving patent to the product. This will be a great task for the country as the process patent is more beneficial as the country is still developing and it creates new and different ways to produce the goods.
     
  4. Protecting Traditional Knowledge: The Indian government has to protect the traditional knowledge by not allowing MNCís to take over the patents, to increase make in India and to not lose the employment of Indians. The government has specially made a Traditional Knowledge Digital Library (TKDL) to prevent patenting on traditional knowledge, because such knowledge in the medical field is a very rich source.
     
  5. Mandatory Licensing and Drug price control order: One of the major intellectual property right that the Government of India needs to focus on is mandatory licensing. The flexible availability is available to the rich and developed countries under the Trade-Related Aspects of Intellectual Property Rights (TRIPS), something which organizations misuses. Under sections 84 of the IPA a company have a compulsory license for private commercial use under selected circumstances.

Plagiarism is a Big and common problem these days where there is not much light focused on as well. The hard work, creation, original contents such as literature, designs, business information etc. are stolen by someone else as a piece of cake and not even given the credit for it.

In todayís era, where everything is taken over by technology various portals are made to store such data for easy accessibility. The IPR is applicable on these portals as well but the issue is to make them enforceable by law. The current copyright acts does not serve the current technological protection measures neither the protection of electronic rights management information. Some sections of the Indian Penal Code 1860, may give the lawful protection in such case.

As the Section 23 of the Indian Penal Code 1860 states:
Wrongful gain or Wrongful loss So as to summarize that everyone who every creates a new design, makes a new logo or a brand name etc. should get their content the correct property right. Till the time an act comes into force by the law for internet wrongful doings such as plagiarism or any other illegal activity / offence, one has to be very careful.


Intellectual Property is made of originality of content but it is separated in to two different parts:

  1. Content is used for industrial related service. It also includes patents, new creations, trademark, designs and geographical indications of source. A patent is right given to someone specially who creates a product or a method to produce such product which has not been done before.
     
  2. Content that are copyrighted.

Recent landmark judgments regarding intellectual property:

  • Bajaj Electricals Limited vs. Gourav Bajaj & Anr

Facts:
The Plaintiff was a part of the renowned Bajaj industry conglomerate, and had electrical stores of the same brand name. The Defendant owned 2 electrical stores and used the name ĎBajají as a part of his store names and also had a website for the same. Besides this, the Defendant used the expression Powered by: BAJAJ in the course of his trade.

The Plaintiff established their right over the name by proving that ĎBajají had been legally granted the status of a well-known trademark, and thus, the Defendant had no right to use it. It was further contended that the use of the above stated expression by the Defendant was a clear attempt to deceive the public by suggesting that the Plaintiff sponsored/ endorsed the Defendantís stores. Thus, the Plaintiff filed a suit for an injunction against the infringing act by the Defendant.

References
  1. https://yourpatentteam.com/challenges-faced-by-intellectual-property-rightsissues/
  2. https://www.civilserviceindia.com/subject/General-Studies/notes/issuesrelating-to-intellectual-property-rights.html
  3. https://yourpatentteam.com/challenges-faced-by-intellectual-property-rightsissues/
  4. https://www.wipo.int/publications/en/details.jsp?id=4528
  5. https://blog.ipleaders.in/top-5-landmark-intellectual-property-rightsjudgments/# Recent_landmark_judgments_regarding_intellectual_property
  6. https://www.mondaq.com/india/trademark/819096/most-common-intellectualproperty-rights-problems-focus-on-south-east-asia
Written By: Tanmay Gupta

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