Every creation of human is unique and innovative, whether it is an image, symbol, music, literary or artistic work, book publication, etc. To protect each and every creation, Intellectual Property Ri
ghts come in the light. These rights protect the ones creation from unfair or illegal use by others. It means you are like a legal owner of your own creation. In this article, we will discuss about different types of Intellectual property rights and their enforcement in India and in International arena.
TYPES OF INTELLECTUAL PROPERTIES
Almost each and every business around the world owns a form of Intellectual Property, which could be an asset for their business. Without their permission no one can use that property. There
are four main types of Intellectual Property –
- Copyright – This type of Intellectual property protects the written or published form of work. Example – books, content, song, films
- Patents – This type of Intellectual property protects the produced product or commercial inventions of an
- Design – This type of Intellectual property protects the design of anything, such as design of a car or
- Trademark – This type of Intellectual property protects the symbol, signs, and logos of a company or a This helps to differentiate your product from your competitor.
INTELLECTUAL PROPERTY LAWS IN INDIA
India is one of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement country. In recent decades, several laws have been passed or amended in India to bring them on par with world protections. Some of these laws are:
- The Patents Act, 1970
- The Trademarks Act, 1999
- The Copyright Act, 1957
- The Designs Act, 2000
INTELLECTUAL PROPERTY LAWS IN INTERNATIONAL ARENA
- World Intellectual Property Organisation (WIPO)
One of the United Nations specialized agency is the World Intellectual Property Organisation (WIPO), which provides a system which balances and protects International Intellectual
Property system in the world. This type of system protects every kind of Intellectual property. Example – literary and artistic work, symbols, names, designs used in commerce.
The WIPO was created in 1893 in a diplomatic conference and is the oldest organisation in the field of Intellectual Property protection. WIPO seeks to-
- harmonize national intellectual property legislation and procedures
- provide services for international applications for industrial property rights
- exchange intellectual property information
- provide legal and technical assistance to developing and other countries
- facilitate the resolution of private intellectual property disputes
- Agreement between WIPO and World Tarde Organisation (WTO)
The relation between WIPO and WTO is mainly because of the trading system between many countries. Here comes the council of the TRIPS agreement, who concluded an agreement between WIPO and WTO. This agreement mainly protects or provides cooperation of the trade between the companies of different nations and also protecting their Intellectual Property.
- TRIPS Agreement
Trade-related Aspects of Intellectual Property Rights (TRIPS) came into force on 1st January, 1995 and is one of the most important international agreement in intellectual property. The member countries are bound to this agreement automatically. The agreement lays down some minimum standards for protection and enforcement of Intellectual Property Rights in member countries. It was made to promote effective international trade and to provide adequate protection of Intellectual Properties to avoid distortion in international trade. The agreement covers almost every form of Intellectual property including trademarks, copyright, patents, geographical indications, industrial designs, etc. Provisions of the TRIPS agreement also protects the legal system and practices of member countries.
INTERNATIONAL PROTECTION AND ENFORCEMENT
As discussed above, WIPO administers a system of international protection of Intellectual Property in many countries. Earlier, the owner used to file the application for intellectual property in a specific language for a specific country and pays the fee in every country. But after this process, rather filing in many languages and paying the fees in every country, it enables the owner to file the application in one language and to pay one application fee. This system is not only to facilitate the process but to reduce the cost of obtaining international protection. WIPO-administered systems of international protection include three different mechanisms of protection for specific industrial property rights.
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN INDIA
To enjoy most types of intellectual property (IP) rights in India, you should register them.
For patents, individual registrations must be made in India, but for rights other than industrial designs you can apply under the terms of the Patent Cooperation Treaty, which is usually easier and quicker.
For trademarks, you should register them within India, either through the domestic trademark system or under the Madrid system.
For copyright, no registration is required but registering copyrights with the copyright authorities is advisable.
In India, Intellectual Property rights can be enforced by bringing an action in civil courts or through criminal prosecution, but there is a disadvantage for both. In criminal proceedings you cannot apply for patent and design infringements and in civil litigation, you are unlikely to recover large damages.
As in other countries, the Indian Government brings actions in criminal cases, although in most cases actions follow complaints to magistrates or police authorities by rights owners. Criminal proceedings against infringers carry the prospect of much harsher remedies, including fines and imprisonment. Mediation or negotiation with an infringer can also be effective as an alternative form of dispute resolution. The Civil Procedure Code provides for a formal mediation process.
DISPUTES ARISING IN ENFORCING
ArbitrationiisitheibestiwayitoiresolveitheiissueiarisingiofiIPR.iWhetheriitiisiat international level or in India. It’s also effective as it saves time and cost. Even India, where the pendency of I judicial cases is very high, arbitration plays an important role in saving time.
Even international arbitration is increasing as a relevant forum for the resolution of intellectual property disputes. The ability to exploit, protect and enforce IPRs on a cross-border level is thus critical. As with other types of cross-border disputes, international arbitration provides an attractive forum for the resolution of disputes over IPRs. However, arbitrability of any subject- matter is dictated by a country’s public policy.
Intellectual Property rights are very essential for every business to protect them from competitors in their field. Being a member of WTO and the TRIPS agreement country, India evolved many laws which help the industrialists to ensure that their business is safe. This law is very useful for start-ups. WIPO, an organisation that ensures that these rights are protected worldwide and WTO ensures that there is healthy trading between the nations. Even if there is a dispute between the parties, the best solution is Arbitration as it saves the cost and time of the court. Arbitration is also recognised at the international level to resolve the disputes of Intellectual Property rights.
Author: Shivam Bansal,
Symbiosis law School, Noida - 2nd Year/ Law Student