Intellectual Property Rights (IPR)
INTRODUCTION
| IPR stands for Intellectual Property Rights. Intellectual Property is such a right which is creation of mind or intellect of a person. Creation of mind such as : invention, literary or artistic piece, composition of music, designs, images , name or symbol. These are examples of Intellectual Properties. When the legal rights are attached to such creation of mind, its referred as Intellectual Property Rights or in short IPR. |
The commonly recognized IPRs are
- Integrated Circuits and Design Layouts
- Confidential Information(Trade secrets)
- The innovations and creative expressions of indigenous and local communities are also IP, yet because they are "traditional" they may not be fully protected by existing IP systems.
|
Types of Property
protected by law
q Traditional/Fixed
Property
E.g. Land, building, natural resources
etc.
q Movable
property
Goods such as electronic equipment and
cars
q Intellectual
Property –
IP encompasses the changeable representations
of intellect and creativity.
q Inventions,
q Literary,
q artistic works,
q symbols and design used in commerce
What is Intellectual property?
q The
legal rights given to people over creations or inventions of their minds.
q A
form of intangible property – ownership
q Relatively
‘modern’ type of property
q Recognition
and compensation for creators and producers of new inventions.
Like real property it can be sold,
licensed, exchanged, and bought.
q Rights
which result from intellectual activity in the industrial, scientific, literary
and artistic fields.
q Granting
of time-limited rights
q IP
provides an exclusive right, gives competitive advantage and can generate
income.
q IP
highly valuable – all forms of human creativity
CLASSIFICATION of IPR
Intellectual property is divided into two categories:
§ Industrial property
§ Copyrights
A. Industrial property- which includes
Ø Inventions
(patents),
Ø Trademarks,
Ø Industrial
designs, and
Ø
Geographic indications of source: and
B. Copyright- which includes literary and artistic works such as novels, poems, plays, films and musical works etc.
Artistic Works
Ø Drawings,
Ø Paintings
Ø Photographs
Ø Sculptures
Ø Architectural designs
Literary Works
q Novels,
q Poems,
q Plays,
q Films
q Musical works
According to the TRIPS Agreement, the intellectual property has been classified into-
- Patents
- Copyrights
- Trademarks
- Trade-secrets
- Industrial
Designs,
- Geographical Indications,
- Layout Designs of Integrated Circuits
“Patents give temporary protection to technological inventions, and registered designs to novel appearance of mass-produced goods; copyright gives longer lasting rights in, for instance, literary, artistic and musical creations; trademarks are protected against imitation so long at least as they continue to be employed in trade.".
Different IP Rights vary in the protection they provide.
q
An
exclusive (monopoly) right
q
Granted
by govt.
q
To
an inventor to make ,use, manufacture and market the invention
q
For
a limited period of time
What is Invention?
Invention’ means an idea of an inventor which permits in practice the solution to a specific problem in the field of technology.”
Patentability requirements:
Ø Novel
Ø Inventive
Ø Industrially applicable/Utility
i) Novel: The invention disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
ii) Inventive: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.
iii) Industrially applicable: Invention should possess utility, so that it can be made or used in the industry.
Types of patents
o UTILITY PATENTS
o PLANT PATENTS
o DESIGN PATENTS
UTILITY PATENTS:
Utility patents are subdivided into mechanical, electrical and chemical categories. Utility patents may be granted to anyone who invents a new and useful method, process, machine, device, manufactured item, or chemical compound - or any new and useful improvement to the same. Utility literally means has purpose or useful function. it generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application filing, subject to the payment of maintenance fees. Approximately 90% of the patent documents issued by the PTO in recent years have been utility patents, also referred to as "patents for invention."Most patents fall into the utility patent category. In general, a utility patent protects the way an invention is used and works.
PLANT PATENTS
Issued for a new and distinct, invented or discovered asexually reproduced plant including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, it permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application filing. Plant patents are not subject to the payment of maintenance fees.
DESIGN PATENTS
Issued for a new, original, and ornamental design for an article of manufacture, it permits its owner to exclude others from making, using, or selling the design for a period of fourteen years subject to the payment of maintenance fees.
Copyright
Copyright, one of the form of intellectual property law, offers exclusive rights for protecting the authorship of original & creative work like dramatic, musical and literary in nature. Symbolized as "©", here the term 'exclusive rights' mean that the holder has the right to determine who will be credited with the work, who will perform the work and who will be benefited financially from it. However, copyright does not extend any protection to the facts, methods of operation, system, ideas except to the ways in which they can be expressed.
Literary works: Novels, stories, poetical works, dramatic works, stage directions, cinematograph film scenarios, broadcasting scripts, textbooks, treatises, histories, biographies, essays, articles, encyclopaedias, dictionaries, letters, reports, memoranda, lectures, speeches, sermons, tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer, etc.;
Musical works (compositions);
- Artistic works: Paintings, drawings, diagrams, photographs, engravings, sculptures, works of craftsmanship, works of architecture, etc.;
- Cinematograph films;
- Sound recordings;
- Broadcasts;
- Programme-carrying signals;
- Published issues; and
- Computer programs (software)
Being a copyrighted item does not mean that other person can't use or write on subject matter of particular item. For e.g, if a person has written on a new motor cycle and he has copyrighted his article then it means that other person can't use that article but he is free to write his thoughts on the similar motor cycle. Copyright holder does not hold the rights by themselves. Instead of it they relinquish it to publishers or big companies by entering into the contractual agreement. Generally copyright is enforceable as a civil cases but in some jurisdiction, there are criminal infringement statutes. Criminal Sanctions are made for targeting the counterfeiting work. There are innumerable factors which determine the length of the duration term. Like the nature of work, the status of work i.e, whether it is published or unpublished and finally whether the work has been created by single person or group. Generally in various part of the world, the copyright has been granted for whole life of the author plus for 50 or 70 years.
Indian Copyright Act, 1957
The Indian copyright act facilitates the owner for reproducing or reusing their copyrighted items, to prepare its derivate, to public their work and to distribute copies of their creative items. Copyright aims to protect the work of creator, transformed in a tangible form of expression. It includes art work, plays, movies, shows, various types of music, sound and songs, books, manuscripts, written work and all types of images, photos, pictures, drawings, graphics.
Copyright Registration
Copyright comes into effect as soon as the work is done and no formalities are required to be follow. However, certificate of copyright registration and entries made there upon serves as the prima facie evidence, at the time of any dispute, in the court. But there is a procedure exist for registering the both published/unpublished work in the Register of Copyrights, maintained in the Copyright Office of the Department of Education. If the work has been registered as the unpublished in the Register of Copyright but subsequently it is published then the requisite changes can be make by the applicant in the Register of Copyright with addition to prescribed fees.
Procedure of Copyright
It is required to be in written form duly signed and authenticated by assignor or by his authorized agent. It should legibly specified the amount of work and rights which are assigned to the other person. To avoid emergence of conflict in near future, time with duration and territorial area should be explicitly mentioned. It should clearly specify the royalty which is required to be paid to author or his legal representative. The mentioned assignment should be clearly subject to termination, extension on terms & conditions duly agreed and signed by both parties. There are some acts which have been put under the head of 'copyright infringements' -
- Preparing infringing copies for the purpose of selling or hiring or let them to be hire by third party.
- Authorizing for the performance of work in such public places where such performance gives result to the copyright infringement.
- Making distribution of the infringe copies for trading with a motto of affecting prejudicially the copyright owner interests.
- Public exhibiting the infringing copies for the purpose of trade.
- Importing the infringing copies into the India.
Advantages of Copyright
Copyright helps in protecting the original published/unpublished work, that can be fall under the different heads of literature, musical, dramatic, artistic and intellectual. If we say the economic and social development of the nation relies upon the creativity skills of its people, then there would be no exaggeration. Copyright helps in making a protective shield, which is conducive for the growth rate of writers, artists, producers, musicians, cinematographic artists and induce them towards indulging into more creative work. By copyrighted their creation, copyright holder can enjoys following rights -
- One can use, re use, reproduce the copies and can sell the copies.
- One can import or export whole or part of work.
- One is free to create any derivative work.
- One can publicly demonstrate its work.
- One can sell or pass its rights to other person.
- One can indulge in transmitting or displaying work by radio or video.
Copyright Protection for Foreign Work
In case of the foreign work, only those work of nations are protected in India which are the member of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright convention and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement through the International Copyright Order. Similarly to grant protection to the Indian work in throughout the world, India has also entered into the below international conventions on copyright and neighboring (related) rights -
- Berne Convention for the Protection of Literary and Artistic works.
- Universal Copyright Convention.
- Multilateral Convention with the motto of protecting the producers of phonograms against the phonograms duplication done unauthorizedly.
- Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS).
Copyright Law Administrating Body
The Indian Government has established Copyright Enforcement Advisory Council (CEAC) as an apex body for dealing in copyright related issues. No special courts have been set up for hearing cases pertaining to copyright related matters. The act facilitates the person to either contact directly to the board or take the help of normal courts regarding copyright issues. The board is not only taking care of infringe cases but also govern all the issues related to copyright in India. The Copyright Board is quasi judiciary in nature and it comprises of 2 or more but less than 14 members. The chairman of the board enjoys the same level that of High Court Judge.
Registered Copyright Societies in India
- Society for Copyright Regulation of Indian Producers for Film and Television
- The Indian Performing Right Society Limited
- Phonographic Performance Limited
Trade Secrets
Trade secret points towards a formula, pattern, any instrument, design which is kept confidential and through which any business or trade can edge over its rival and can enjoy economic gain. Trade secrets can be anything from a chemical compound, manufacturing process, design or preserving materials or even a list of consumers or clients. It is also known as "confidential information" or "classified information". To be safeguarded under trade secrets, the matter should be 'secret'. Though the definition of trade secret is variable as per the jurisdiction but there are following elements that are found to be same -
- is not known by the public.
- provides some financial sort of gain to its holder.
- involves reasonable efforts from the holder side for maintaining secrecy.
- importance of data or information to him or for his rivals.
- the ease by which information could be learned or duplicated by others.
Any enterprise or an organization can safeguard its confidential data or information by entering into non disclosure agreement with its employees. Such law of protecting confidential matters offers monopoly in respect of any secret data and information. Trade secrets offer protection for an indefinite time period. Unlike patent it does not expire.
Every company invests its time and resources into discovering information regarding refinement of its various activities and operations. If other company will be allowed to use the same knowledge then the chance of first company survival and dominance into the industrial arena would be vitiated. When trade secrets are recognized then the inventor of such knowledge is entitled to consider that as part of the intellectual property.
Unlike of patent, copyright, there is no particular international treaty(s) for trade secrets. Moreover there is no global law for standardizing definition of trade secrets. Trade secrets are gaining recognition year by year in throughout the world. It has been said that the major technologies in the world are protected under the head of trade secret instead of patent. The 'North American Free Trade Agreement' (NAFTA) and the agreement on 'Trade Related Aspects of Intellectual Property' (TRIPs) ratified during the Uruguay round of the 'General Agreement on Tariffs and Trade' (GATT) have there specific provisions which point towards increase in the protection granted to trade secrets. Furthermore there has been a rising trend particularly in Asian nations of using the domestic statues which direct towards trade secrets protection.
Trade Secrets Protection
Trade secrets are kept secret and thus not disclosed to the public at large. The owner or creator takes concurrent steps and prevent his knowledge from slipping out his hands to its rival side. In exchange of getting the chance to be appointed by the holder of trade secrets, a worker will ready to sign a contract not to disclose any material information and data of his employer. Any negligence or violation of the same will means an imposition of financial penalties. Other business associates or companies with whom the inventor is engaged are often signed a same contract and any negligence will lead to fine or penalties.
If any company by unlawful means try to find out trade secrets of other company then he will be held legally responsible under that country's act in which it has been happened. If trade secret has been obtained via industrial espionage, then it will be called illegal and the person or company involved in it shall be found guilty for legal liability.
Trade Secrets Infringement
Misappropriate use of trade secrets can be called an unfair practice. The Uniform Trade Secrets Act of the USA defines misappropriation as -
- Acquiring trade secrets related of other by a person who has strong belief or reason that it was acquired by wrongfully doings.
- Disclosing or using trade secrets of other person without any implied consent of its owner.
As per the Uniform Trade Secrets Act 'improper means' include "theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means."
Tips for safeguarding Trade Secrets
- Put a sign or any mark on various computer files and documents related to trade secrets which you are intended to keep confidential.
- Allow the accessibility of trade secrets only to those people who have authentic reason to know the information. The reason should be material and benefits you in business.
- Make it obligatory for everyone using trade secret to sign a non disclosure agreement. It should describe every minute detail about trade secret applicability like how the person will use trade secret, what will happen if he will pass over this agreement etc.
- All employees should consider trade secrets as confidential data or information even if he is unaware about the trade secret.
- Always keep your trade secret in a private and restricted zone.
Industrial Design Rights
Industrial design rights are defined as the part of the intellectual property rights which confers the rights of exclusivity to the visual designs of objects which are generally not popular utilitarian. It safeguards the appearance, style, design of the industrial object such as spare parts, textiles, furniture. According to the Industrial Design Society of America (IDSA), "Industrial Design (ID) is the professional service of creating and developing concepts and specifications that optimize the function, value and appearance of products and systems for the mutual benefit of both user and manufacturer." As these designs consist of the aesthetic features therefore they do not provide any protection to the technical features of the article. The origin of design rights can be traced back in the United Kingdom as 'Designing and Printing of Linen Act' (1787).
Designs are used in different products and across the various industries like medical, handicrafts, jewelry, electrical appliances etc. It precludes of any trademark or artistic type of work. In India the ever first design related legislation was enacted by the British Government and was popularly named as the Designs Act, 1911. The Hague Agreement in concern to the international deposit of industrial designs, the WIPO administered treaty, the procedure of the international registration has been laid down. The applicant intended to enjoy the industrial design rights can file the application with the WIPO or in the national office of the nations which are member of the treaty. Due to the application filing with the WIPO, the designs will be protected in various member nations of the treaty. If the right holder wants to protect its rights in multiple jurisdictions then it is required to seek protection separately from each nation. India has still not accepted the Hague System for the International Registration of Industrial Designs, which offers the industrial design owner the right of protecting its design product in various countries on mere filling of the application with the international bureau of the WIPO.
Advantages of Industrial Design Rights
Industrial designs help in making any product or item more beautiful and appealing ,henceforth they help in increasing commercial viability of product and increases its market potentiality. The industrial design registration helps in safeguarding the ornamental or aesthetic elements of the article. Whenever an industrial design is being registered it gives an exclusionary rights to owner against unauthorized use like copying or imitation by third party without his consent. This in turns facilitate fair flow of investment. An effectual system also helps in benefiting public by encouraging fair and effective competition and trading practices which at large bolster the creativity and the final result comes in the form of attractive and beautiful products. Safeguarding of industrial designs help in the overall economic development which promote creativity in the industrial arena.
Industrial Design Rights in India
In present scenario, the Designs Act, 2000 and the Designs Rules, 2001 are governing the India's design law. The industrial design registration grants the proprietor the exclusionary rights of selling, importing and applying it to any product. India has adopted the 'first to file' system, which means that the right holder should file the application on the earliest point of time to rule out the possibility of any other person claiming for the rights of the intended designs. All such persons can apply for the industrial design rights if they are the proprietor of the design and as far as the design is new, not previously published in any nation, reproducible through the industrial means, not against to the public order, distinct from the known designs, not consists of any obscene material, eye catching. According to the designs law in India, the proprietor can file for the design application only if they have their business center in India otherwise they are required to file the application through the attorney/agent who will in turns design search, prepare file and finally done the prosecution of the application. The applicant or its assignee can also file the application directly with the filling of the requisite information. Applicants will be examined by the design offices for ascertaining the availability of the intended designs.
The applicant must respond to any objection within the period of 3 months and if he fails to comply with this time limit then the application would be considered to be rejected. Therefore, on the basis of the responses of the objections filed by the applicant, the Controller of Designs determines that whether the application should be accepted or canceled or should be put up for the hearing. The registration of design is valid for the period of 10 years which can be extended further for 5 years on the payment of renewable fees. One can transfer the rights of the industrial designs to other person or party with the help of an assignment, transmission or license. Registered designs are kept to be open for public inspection only after they publish in the office gazette by paying the prescribed fees.
There are some artistic work which is not possible to be registered as the design- a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture, any other work of artistic craftsmanship. In case of the piracy of the registered designs, then the person who has contravene the copyright in the design would be held liable for the fine not exceeding to Rs.25,000 and maximum to Rs.50,000. The registration of design can be canceled at any time after filing the cancellation petition with the prescribed fees to the Controller of Designs.
Trademarks
The trademark or trade mark, symbolized as the ™ and ®, is the distinctive sign or indication which is used for signifying some kind of goods or/and services and is distinctively used across the business organization or by an individual for identifying and uniquely classifying the source or their products and/or services among consumers and making a distinction of its products or services from the other entities. One of the part of the intellectual property law, trademark signifies to the name, word, phrase,logo, image, design, symbol or combination of any or all of these elements. The trademark grants rights to the owner which in turns may take or can commence legal proceedings in case of infringement of trademark. However registration is not compulsory in trademark. The owner of common law trademark can also file the suit but in case of the unregistered mark, the protection granted will only be confined only to that geographical area within which it has been used or in that area into which it is expected to be expand.
Informally the term 'trademark' is used for distinguishing those characteristics or attributes which helps in identifying any individual. When the word 'trademark' is used in context of services rather than products, it may called service mark. When the trademark is used for describing the product or service, instead of making a distinction from the third parties then it is popularly called generalized trademark. As any sign which is attributed of doing the essential required functions of the trademark may be headed under the term 'trademark'. It may include various non-conventional signs like shapes(three dimensional trademarks), smells, sounds, moving images, taste, color and even texture. The extent to which these non conventional trade marks are recognized or even protected varies from one jurisdiction to another.
Advantages of Trademarks
The trademark owner is conferred upon the 'exclusionary rights' which says that the owner enjoys the right of using the registered trademark and can indicate it by using the symbols- ™ and ® in relation of those goods and services for which the owner has registered the trademark. At the time of any infringement, the owner can take upon the case in the court. Trademark provides the guarantee for the unchanged quality and helps in creating and advertising the products and services in public.
International Trademark Laws
Due to the increasing globalization of trading activities, it becomes necessary to integrate the trademark law and policy, nucleus of which must be constancy in its various activities. The following trademark laws have candidly enable the industrial market across the world to save their time and resources by allowing the centralized filing system and completion of various procedures related to it.
- Agreement on Trade-Related Aspects of Intellectual Property Rights :
Administered by the World Trade Organization (WTO), the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is the international agreement which laid down the minimum standards for different parts of the intellectual property (IP) regulation. In the year 1994, the said agreement was negotiated at the end of the Uruguay round of the general agreement on tariffs and trade (GATT). The TRIPS encompasses of the various requirements which laws in different countries are required to abide for along with the specification of the procedures, remedies and disputes. In the Article 15(1) of TRIPS, 'sign', which has been used in part or form of the 'trademark' in the trademark legislation of various jurisdiction in throughout the world.
- The Madrid system for the international registration of marks :
The madrid system is seen as the pivotal international system for enabling the trademark registration in more than one jurisdiction. It offers the centrally administered system for achieving the trademark registrations in the jurisdiction of member nations by extending and facilitating the protection of the international registration obtained through the World Intellectual Property Organization. The international registration is said to be based on the application or registration which is acquired by the trademark applicant within its home jurisdiction. The foremost benefit derived from the madrid system is that it facilitates the trademark owner in obtaining trademark protection in multiple jurisdictions by filing the application only in 1 jurisdiction on the payment of one set of fees. This system allows the applicant to make amendments and complete registration process across all the jurisdictions by applying through the single administrative process. Moreover, it is easy to extend the international registration coverage to the other member jurisdictions at any given point of time.
- Trademark Law Treaty :
The trademark law treaty aims to establish the system through which jurisdictions of member nations agree for standardizing the various procedural requirements of the registration process in connection to the trademark.
- The Communal Trademark System :
It is the super national trademark system which is prevalent in the European union.
Trademark Laws in India
The Indian trademark law defines the trademark as the signature, device, word, invented word, letter, numeral, brand, name written in the particular style, the shape of goods other than those for which the mark is intended to be used, or any combination thereof or the combination of colors etc. Except in certain cases, the trademark may also signified by the name of living or dead person. The trademark helps in making an identification of the goods and services along with its origin. It helps the trademark holder to advertise its products or/and services and also creates a good image in the mind of its final consumer but the trademark chosen should be capable of making a distinction between the goods or services of different people. Furthermore, it should not be deceptively identical to the existing mark of the other person and should not be such that which is restricted in the act.
In India, any person who claims to be the trademark proprietor can apply for the trademark registration of the goods and services. For registration, the application can be filed in the Trademark Office, in whose jurisdiction the principal place of your business falls. If the principal office is not situated in India then the applicant can file the application in the trademark office in whose jurisdiction the lawyer appointed by the applicant is situated. In case it is the company which is yet to be formed then anyone can apply for the registration on the behalf of the company. It is prudent to make a proper search in the trademark office for ensuring that your registration may not be canceled due to the similarity of the proposed mark to the already existing one. In India, the registration term of the trademark is 10 years which can be renewed further for next 10 years by paying the renewal fees.
In India, only the trademark proprietor whose trademark has been registered can put the symbol ® into use. If any use the symbol without the registration of mark he/she will be held under illegal use of the trademark. If anyone is engage in selling or providing services by using the false trademark he/she will be entitle to the penalty of minimum 6 months which may extend to maximum of 3 years and with the fine of not less than Rs.50,000 and which can extend to Rs.2,00,000.
Geographical Indication
Geographical Indication (GI) signifies to the name or sign, used in reference to the products which are corresponding to the particular geographical area or somewhat related to the origin like town, region or nation. Thus GI grants the rights to its holder which acts as the certification mark and shows that the specified product consists of the some qualities and is enjoying good reputation due to its origin from the specified geographical location. The Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement has defined the 'geographical indications rights' as the exclusionary rights for the indicator which identify the goods originated within the member nations territories, or area or region of that territory, where the reputation or other attributes of the goods is essentially related to the geographic origin of the place. Geographical indications are the part of the intellectual property law therefore like any other law the regulation and govern conditions of GI also varies from one country to another as high differences have been found out in the use of generic terms across the world. Such case is prominent for food and beverage which more commonly use the geographic terms. Geographical Indications are aimed towards identifying the source of the product and is considered as the valuable business tool.
The global trade has made it crucial of harmonizing the various approaches and methods which the governments use for registering the GIs in their respective territories. The first initiative was taken in the year 1883 as the Paris Convention on trademarks which was followed by the more elaborative provisions of the Lisbon Agreement in the year 1958 for the Protection of Appellations of Origin and their Registration. In the year 1994 during the conclusion of the negotiations on the WTO Agreement on Trade Related Aspects of Intellectual Property Rights all WTO members were decided to lay down certain standards for the GIs protection in their respective countries. The Article 22 of the TRIPS Agreement emphasis on the obligations of the government for providing legal opportunities within their territories for safeguarding the GI use and curbing its misappropriate use.
Geographical Indication Act in India
In India the geographical indications regime is regulated by the Geographical Indications of Goods (Registration & Protection) Act, 1999 and the Geographical Indication of Goods (Regulation and Protection) Rules, 2002. However registering of the GI is not compulsory in the India as the owner of the unregistered GI can also enforce the actions with the help of passing off against the infringer but it is recommendable to register the GI as the registration certificate acts as the prima facie evidence in the court at the time of arising of any dispute and no additional evidence is required to proof the validity. Examples of some of the popular geographical indicators are- Basmati Rice, Kanjeepuram Sarees, Darjiling Tea. In the Indian act, geographical indication is used for identifying the goods from a particular geographical location and its origin. It encircles the agriculture goods, natural goods and is extended up to the manufacture goods also. In order to register the geographical indication, the goods should possess the unique characteristic, reputation with other qualities attributed to its geographical origin, for e.g, climate, quality of soil, processing methods etc. Normally the geographical indicators signify to the rights of community or a group therefore, an individual cannot register geographical indication on his/her name. The Indian Geographical Indication Act has established the Geographical Indication Registry, the statutory body, for completing the geographical indication registration. The body prepares the Register of Geographical Indications which is prepared in two parts- Part A and Part B. While Part A consists of the important attributes of the goods along with the name of the registered owner whereas Part B details down the various rules which are related to the geographical indicator authorized users registration.
To register the geographical indication, any organization or association of people or the statutory authority can apply for the registration. They need to file the application which should consists of the statement that how the geographical indications are related to the quality and with other characteristic features which are the result of the geographical environment, encompasses of the natural qualities and human factors, unique methods of production, processing and preparation, which occurs within the said geographical area. It is required that the class of goods which have been chosen should be covered under the registration. The applicant is needed to give the geographical map of the area in which the goods have been produced along with the descriptory methods of the geographical indicators appearance of the goods. The applicant can file the single application for varied classes of goods but separate fees is required to be paid for each class of goods. However for the registration of foreign indications, the submitted application should detail down the address of the services which are situated in the India. The submitted application may either be accepted fully or conditionally. If the application has been rejected or has been accepted partially then the registrar is required to record in writing the reasons of rejection or conditionally acceptance. After the application acceptance it will be publicized in the Geographical Indication Journal and within the 3 months of its publication, any person who oppose against the application and can request for the opposition proceedings. The registrar will sent the copy of the opposition to the applicant who in turns is required to counter the statement within 2 months of the receipt of the opposition copy. But if the applicant fails to comply with the specified time duration then the application would have been considered rejected. After the furnishing of the evidence by the applicant, the registrar will provide a chance to both parties for the oral hearing and after that the matter will be settled down through the quasi-judicial manner. In case of the foreign entities who are interested in lodging the opposition, are needed to submit the security for costs.
The initial registration of the geographical indication holds its validness for 10 years. The Indian act has given gracing period of 2 years for restoring back the registration of those geographical indications which have been canceled due to the failure of paying the renewal fees. At the time of the geographical indications infringement there are two types of remedies which have been clearly specified in the act- Civil remedies which cover the injunction damages, which in turns include the delivery of the infringed goods for the destructive purpose and forfeiting of the goods which bear upon the fake representation of the original geographical indication. However the criminal remedies may include of the punishment to the offender minimum to 6 months which can extended maximum to 3 years with the minimum Rs.50,000 fine and maximum to Rs.2,00,000. If the same offense is repeated in the future again then the minimum sentence becomes of 1 year with minimum Rs.2,00,000 fine.
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Posted in: Intellectual Property,IPR
