A&A
September 8, 2020
What’s mine is mine, what’s yours is yours - but do you have the proof of ownership? We live in a world where everything we see, touch or create is in the public domain. The worldwide web and its many co-related platforms have truly revolutionised not just the way we perceive the world around us, sell our ideas and products, access information to form varied opinions but also how closely we guard our ownership.
Though privacy may seem like a thing of the past and every vocalised thought seems to magically form part of our browser history, there are creative aspects of our lives we can legally call our own and protect.
Intellectual property is not a new term or law. In many countries it was conceptualised in the 1800s, however, it is only in the late 20th century that intellectual property became commonplace in the legal system across the globe and it has become quite the trending topic amongst the 21st-century innovators and forward thinkers.
Strangely enough though, unless you are an intellectual property lawyer in India, if you ask a person to actually explain what is intellectual property and how does the law protect it, you will most likely get a half-baked, convoluted response about something they vaguely understand.
Should you be scurrying around for intellectual property law firms in India if you want to protect your creative ideas and innovations? That’s possibly a great idea! By all means, it is highly recommended to get the best intellectual property lawyers in India for the job, but before you do, let’s understand the fundamentals of IP.
Intellectual property is a product of human intellect i.e. creations of the mind - inventions, literary and artistic works, symbols, names and images.
You do not have the IP rights to an idea, thought, process, or story simply by it being in your possession. This is when you talk to that IP lawyer in India and get the registration process started.
If a person triggers their IP rights or in other words starts the registration process, they can gain exclusive rights over their creation, for their lifetime or for a certain specific timeframe as laid down by law.
Different creations require different protection:
Category of IP | Kind of work to fall within this category of IP | Such as |
| Copyright | Protect authorship/ creativity Literary works, artistic work, cinematograph works, musical and sound recording works | Books Poems Blogs Computer Program Music compositions Film Art Sculpture |
| Trademark | Protect brands Anything which identifies the origin of the goods or services | Name Symbol Logo Colour Sound |
| Patents | Protects the Invention / Inventive Process The skill or labour produces the idea of a new process/ instrument Can be electrical, mechanical, or chemical in nature | microwave oven, genetically engineered bacteria for cleaning up oil spills, a computerized method of running cash management accounts, a method for curing rubber |
| Geographical Indications | Protect the origin of the product name or sign used on certain products which links to a specific geographical location or origin | Basmati Rice Cognac Use of turmeric for a particular purpose |
| Industrial Designs | Protect the design of an article focused on protecting the visual features of an article, namely its design, shape, pattern or ornament | The shape of a Dyson cyclone vacuum Shape and design of a Kitchen Aid Mixer |
| Trade Secret | Protect secrets Anything that gives a person an advantage against a competitor which can be highly valuable and worth protecting | Documents Formulas Unique Practices Designs Recipes |
| Domain Names | Protect the name and title of websites The advantage that gives a user to identify businesses and trade channels being operated upon. | .com .in .biz .org .co.in |
To legally enforce IP rights, you need to register your creation with the Office of Controller General of Patents, Designs & Trade Marks under Ministry of Commerce & Industry, Government of India. File in your application as soon as possible, as the first-to-file rule is of great significance for registration of intellectual property.
There are a number of documents that are required to be filed along with the application, as well as drafting and dealing with replies to clerical or technical objections, post examination of the application by the concerned officer.
The process is not necessarily expensive, the government fee with respect to every branch of IP ranges from Rs. 500/- to a maximum of Rs. 10,000/- depending on variables of the IP and can take up to 7 months to 1 year to get registration in hand, subject to no objection or oppositions received by a third party. The process may seem slightly intimidating and it would be best to hire an IP lawyer in India to assist you through the entire process.
These rights are territorial in nature and do not extend beyond the jurisdiction for which it is granted, with the exception of a creator’s work under the copyright laws in India.
If you want to reserve the intellectual property right in different countries, you can either directly file separate applications in the respective countries or a single universal international application, provided that India is part of the various treaties and conventions. Such universal application (s) is processed through the Office of Controller General of Patents, Designs & Trade Marks, and administered by the World Intellectual Property Rights Organisation (WIPO).
Some of the best intellectual property lawyers in India and abroad can narrate the most interesting cases related to infringement and passing off. Yes, there is a difference between the two and again an IP advisor will be able to guide you through the proper route to take, to protect your product or services, but to give you a brief idea:
The Law and Applicability | Registration | Difference | Burden of Proof | |
| Infringement | Defined and protected under IP Acts of India Trademark Patent Copyright Design | Breach of IP rights (has to be registered) | When a work protected by IP laws is used, copied or otherwise exploited without having prior written permission or consent from a person who owns those rights | Only required to show deceptive similarity, as there is a presumption of confusion |
| Passing Off | Provides protection via Common Law Trademark Patent Copyright Design | Breach of goodwill (Does not need to be registered) | When one person is passing off his goods and services as that of another | Apart from proving deceptive similarity, also required to prove confusion in public and the likelihood of injury to goodwill |
| Misappropriation | Protected under the principles of equity and the law of contracts Trade Secrets | Breach of confidential information, held specifically as a secret, having commercial viability | When a person uses information that is not public knowledge therefore potentially come under the ambit of confidential information | Not required to divulge the particulars of the trade secret; need to list out the information believed to be a trade secret as well as show how the information, believed to be a trade secret, is different from the information in the public domain and how it has been misappropriated. |
Does your recipe need to be protected as a trade secret or should you patent it?
Can your mathematical method be patented? Did you know that some of your IP rights have an expiration date? Can my information be protected as a trade secret and have copyright protection? While the above categories simplify IP rights, it is always advisable to reach out to an intellectual property law firm in India to help you clarify whether you can get the protection of the law and how best to go about obtaining it.
There are a number of nuances that can enable you to protect your creativity or ensure you get your money’s worth in case someone does try to use what is rightfully yours. The answers and solutions that some of the top IP firms in India can provide you can surprise and inspire you.
Some of the more interesting instances of how IPR’s function and the reason why an IP lawyer can make all the difference
All four branches of IPR’s can protect one product. The brand, “Coca-Cola” is a trademark. The formula for the actual soda is a trade secret, the shape of the bottle/can has a design registration, while copyright law protects the packaging art.
Interestingly, Coca-Cola made a choice to brand the recipe a trade secret instead of patenting it, since it would have led to the disclosure of the ingredients.
In 2006, an employee and two accomplices stole the formula and tried to sell it to Pepsi. Pepsi blew the whistle and let Coke officials know what was happening. The employee and friends were arrested.
Another amazing category is “Softwares”, a Software name is given protection under the Trademark statute, source and object codes of that Software can be secured under Copyright, if an inventive industrial application along with novelty steps can be derived from the operation of the Software then a Patent can be granted and last but not the least design of the box in which software is packed if appealing to the eye can be granted a design registration.
For example, one of the biggest software companies “Adobe” has bagged numerous patents for their Software(s).
Another interesting anecdote is that there is no statute to protect Trade Secrets in India. As a matter of practice, it has been protected contractually by executing relevant agreements and with the help of common law principles. While recipes of famous food brands like KFC, Dominos etc are protected under specific trade secret laws in countries like the US, these brands and their respective recipes in India protect the recipes contractually by executing Non-Disclosure Agreements, Protection of Trade Secret Agreements etc.
Like Trade Secrets, there is no statute to govern domain name registration in India. However, IN Dispute Resolution Policy (India) “INDRP” regulates the complaint mechanism for dealing with domain name infringement matters for domains ending with .IN and World Intellectual Property Rights Organization (“WIPO”) deals in the same for domains ending with .COM, .ORG
Another example closer to home - India had to force the US Patent and Trademark Office (PTO) to revoke a contentious patent it granted two years ago to researchers in the United States on the use of powdered turmeric (Curcuma longa) for wound healing. This was a big win for India since earlier efforts by an international coalition of environmentalists to get the US patents on products of the neem tree cancelled, ended in failure
The people in the world we live today, despite lockdowns and pandemics, are in a huge hurry to create the next big thing, make that million, revolutionise the world with that product or this top service. In this great rush to be the only solution to everyone’s search engine typed “….. near me”, we need to also focus our energies on not just working fast but also smart. Protect and invest what you have put your heart and soul into and you will reap the benefits, in more ways than one.
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