14 Intellectual property management

P.G. Padma Gowri

epgp books

 

 

 

 

Introduction:

 

Intellectual property is the term used to describe intangible assets. The intangible assets are designs, publications, inventions, results of human endeavour that have value and original things, computer software, music etc.

 

These assets increasing the company’s worth. The problem and management of intellectual properties has become a commercial imperative, requiring the development of a set of practices that are encompassed with in the field of intellectual property management (IPM).

 

In today’s world, intellectual capital is considered to be part of company’s assets and it is constantly assessed, valued, and even listed in the balance sheet.

 

Objectives:

  • To know about Intellectual property rights and its types
  • Description of important Intellectual property rights
  • Identify registration procedure and managements of Intellectual property rights

IPR(Intellectual property rights):

 

Intellectual property rights (IPR) are legal rights that can be obtained for any intellectual property of an individuals or groups. Just like other property, it can be sold, brought, branded and licensed to others for use by its owner(s).

 

To obtain the legal rights on intellectual problem basic procedures are to be followed, legal protection for intellectual creation is very important. Intellectual property law has evolved over century, it was not familiar until 19th century, and then only Intellectual property (IP) began to be used.

 

Basic Intellectual Property Rights:

  • Copyrights
  • Trademarks,
  • Patents
  • Integrated circuits layout design
  • Trade secrets
  • Geographical indication
  • Industrial  design
  • Plant varieties

Some of them may be protected under more than one form of IPR.

 

1. Copyrights

 

The original act of speaking, writing or doodling is possible to an aeration of an intellectual property. The above form of expressions are grouped and called as copyrights.

 

Copyright is a form of IP protection available to all forms of procedures, ideas, methods of operative etc. The copyrighted material will not take copies from others without the others permission.

 

Copy right management

 

Any violation of the rights conferred under the copy right to the owner of copy righted works is deemed an act of infringement.

 

These include:

  • Making unauthorised copies for hire or selling or letting them for hire;
  • Permitting any place for the performance of works in public where such performance, constitutes infringement of copyright.
  • Distributing unauthorised copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright.
  • Public exhibition of unauthorised copies by way of trade; and
  • Import of unauthorised copies into India.

 

The remedies may be obtained by way of injections, damages and accounts. The concerned District Court has the jurisdiction in civil suits regarding copyright infringement.

 

Fair use:

 

The fair use concept is driven by the non-commercial angle and mostly applied for personal use or for educational purpose.

 

Work  for Hire:

 

Work made for hire (work for hire or WFH) is a work subject to copyright that is created by an employee as part of his job, or some limited types of works for which all parties agree in writing to the WFH designation. Work for hire is a statutorily defined term,so a work for hire is not created merely because parties to an agreement state that the work is a work for hire.

 

Copyright notice:

 

Accepted copy right notices have the below elements

  • Symbol ( c) or world Copyright ( or ) “copr”
  • The copier of Ist publication of work mentioned.
  • Name of the owner of copyright to the work give is (c ) 2009.

2.  Trade mark:

 

Trademark is unique signs used to denote the products in which the first point of contact for the company with the customers. The concept of trademark is very important/valuable from the view point of a consumer in a market where a number of competing suppliers providing essentially similar products.

 

Trade mark management:

 

The following steps are followed for Trade mark management

 

Ø  Selecting a Trade mark

Ø   Registration procedure in India

Ø   Production of Trade mark

Ø   Representation of trade mark

 

Selecting a trade mark:

 

Important points to be remember to select a trademark are,

  • A word mark should be easy to speak, spell, remember and recognize
  • It should be distinctive.
  • Invented or coined words are strong trademarks.
  • Descriptive words should be avoided.
  • Conduct market survey and find any prier registration available with the same name.
  • Name of the company and trade mark name must differ

 

Registration procedure in India:

 

The Indian act1999 defines a trade mark to include, a device, brand heading, label, ticket, signature, word, letter, numerical, shape packaging or conservation thereof.

 

Trademark search:

 

It is advisable to search reports before filing own trademark, we get a list all similar and identical trademarks registered and pending applications.

 

Protection of Trademarks

 

Remedies available for protection of trademarks are:

 

Civil Action – The competent court can be moved for grant of relief against infringement and/or passing off.

 

Criminal Proceedings – Criminal complaints can also be filed against persons who have infringed the mark in addition to a civil action.

 

Administrative remedies: Notice of opposition can be filed against trademark application published in the Trademarks Journal.

 

Companies Act: In addition to the above-mentioned remedies, action can be taken under Section 20 and 21 of the Companies Act in respect of a registered company which incorporates the trademark as part of its corporate name.

 

Representation of trade mark:

 

Usage of Symbols Ò and Tm in India. Only the proprietor of a registered trademark can use the symbol ®

 

In India, Using symbol TM with trademark simply means that one claims to be the proprietor for the trademark. There is no prohibition on the use of the symbol TM in India.

 

It is important to note that the owners of one distinctive marks can be protection by failing to police them. For example, Frederic Bayer & Co isolated acetylsalicylic acid in 1897 and branded it as “Aspirin”, “Aspirin” was registered as a trademark in Germany in 1899. After the First World War, other manufacturers began to sell identical products under the said name, which ultimately, led to the mark’s inability to identify a single source (i.e., Bayer). The name is no longer functional as a trademark and “aspirin” it is now a generic term. It is important that the trademarks are used continuously as non-use of the trademark is a ground for cancellation.

 

Term of registration of a trademark is ten years, which may be renewed for a further period of ten years on payment of prescribed renewal fees. Non-use of a registered trademark for a continuous period of five years is a ground for cancellation of registration of such trademark at the behest of any aggrieved party.

 

3. Design and design patterns:

 

Visual aspects of any provided can be design and design patterns. Designs are commercially valuable and are applicable, Jewellery, footwear etc.

 

Design patterns Management:

 

In India design registration lasts for of 10 years than election may be field to extends protection for another 5 years period. Thus the maximum life fine a design enjoys is total 15 years.

 

Design Infringement:

 

Use of a registered design or its imitation to any article belonging to class or articles in which the design has been registered for the purpose of sale or import of such articles without the written consent of the registered proprietor is considered as infringement. The suit for infringement, recovery of damage should not be filed in any court below the court of District Judge.

 

Designs are an extremely important form of intellectual property, in that they are the very essence of taking a functional item and making it visually appealing, thus making it attractive in the marketplace.

 

4. Semiconductor Integrated Circuits and Layout Design:

 

Semiconductor integrated circuits, also known as integrated Circuits or ICs form the backbone of all electronics devices available today. Integrated circuits are miniaturized electronics devices in which a number of active and passive circuit elements are located on or within a continuous body of material to perform the function of a complete circuit. The term “Integrated circuits” is often used interchangeably with such terms as microchip, silicon chip, semiconductor chip, and micro-electronic device.

 

Integrated circuits have a distinctive physical circuit layout, which is first produced in the form of a large scale drawing and later reduced and reproduced in a solid medium my high precision electrochemical processes. The design of ICs involves consolidated intellectual effort. Several parameters have to be taken into consideration while designing, and the final IC as envisioned has to perform at its optimal best.

 

Apply Layout Design Under Indian Act:

 

The crater of an IC Layout Design is given the opportunity to file and procure the rights to the creation. Considering the time, effort and knowledge required to put together the paper work (as with all intellectual property rights and indeed all legal-related matters) any legal practitioner can apply on behalf of the creator.

 

Further, there are persons registered as layout-design agents who can act on behalf of the creator also. These layout-design agents are the IC Layout Design equivalents of Patent Agents or Trademark Agents. Also, any authorized person in the sole and regular employment of the organization associated with the IC layout Design can also file in the name of the organisation.

 

The Registration of an IC Layout Design:

 

The application for registration of an IC Layout Design typically comprises a Form LD-1, the prescribed fees, 3 sets of drawings which adequately describes the IC layout design, 3 sets of photographs or drawings of masks used for the fabrication of the semiconductor IC. Any written description associated with the IC Layout Design may also be included in the registration paperwork.

 

Post-Application Process:

 

If the Registrar of the Semiconductor IC Layout Design is convinced that the application for an IC Layout cannot be registered, the Registrar will inform the applicant about it, along with the reasons for the conclusion. The applicant is allowed to present his version of the same case. Even after the hearing of the applicant’s version, if the Registrar is not convinced about the strength of the applicant’s position towards the IC Layout Design, then the Registrar is reject the application.

 

Term of Protection of IC Layout Designs in India:

 

Most countries including India have a 10-year period protection for IC Layout Design.

 

Infringement of Rights Conferred

 

An act of infringement is said to have occurred if one without permission does any act of reproducing, importing, selling or otherwise distributing for commercial purpose purposes a registered IC Layout Design. As mentioned earlier, since the rights extend not only to the registered IC Layout Design, but also to semiconductor IC incorporating the IC Layout Design, and an article incorporating the semiconductor IC Layout Design. Hence, committing any act of reproducing, importing, selling or otherwise distributing for commercial purposes even a semiconductor IC incorporating the IC Layout Design or an article comprising the semiconductor also constitutes an act of infringement.

 

Any act of infringement done knowingly and wilfully shall be punishable with either imprisonment upto three years, or fine not less than INR 50,000 upto INR 10 lakhs, or both.

 

Proper Representations of Registered IC Layout Designs:

 

There are serious implications of using the world “Registered” for semiconductor Integrated Circuit layout design. If the word “Registered” in reference to the IC Layout Design is used in another context then it should clearly state so and the other characters must be at least as large as those in which that word is delineated.

 

5. Trade secrets:

 

To trade secrets information may be like formula, recipe, practice, process, design, and compilation of information, and so on.

 

This unique information creates the economic advantages over competitors .One of the most common examples of trade secret is the formula for coco cola drink. Similarly the recipe for colonel sanders fried chicken is also a trade secret.

 

To protect trade secret:

 

The best way to protect trade secret is not to reveal it at all. But in several occasions it ma necessary to reveal the trade secret to a select few individuals or groups.

 

Employees or contractors working in or with an organisation can be bound by iron –clad agreements that in clued strong confidentiality clauses.

 

The trade secrets last forever, or as long as it takes for one to stumble upon information or as long as it takes on to reverse engineering it. Example the trade secret formula for coco-cola lasted for longer than 100 years.

 

The misappropriation of trade secrets leads to take legal procedure or proceedings have to be initiated b the trade secret owner. Trade secrets provides a valuable and powerful tool in the hands of owner or draft operator.

 

Today’s global village environment, resources are available from ever ware in the world. So it is very difficult to hold trade secret for any extended period of time. But in many cases this lead time is enough to get sustainable market gains. This lead time may be provided by the appropriate use of trade secrets.

 

6. Patents:

 

The world ‘patent’ devices from the world pattern which mean “to lay open to public”. Patent granted to any new and useful process, machine article of manufacture of comparison of matter in technical and any news to useful improvements also.

 

Main criteria for patentability:

 

Once a determination is made whether invention as described or conceived does not fall under a one of the category of o patentable subject matter as described, the next step is to determine if the invention qualifies for the grant of a patent. Three main criteria for doing so are,

  1. Novelty
  2. Inventive step
  3. Usefulness.

Maintenance of a patent:

 

All patents are requiring initial filing fees and possible several fees following it until gets granted. After the grant of a patent, it requires to be maintained by payment of maintenance fees periodically. Failure to pay maintenance fees within a certain time period will result in loss of exclusively rights, and the availability of the technology for public. Data on maintenance of patent may be obtained from the respective patent office through their website or upon written request.

 

The below table provides different time lies associated with the payment of filing fees in the three main jurisdictions consider here.

 

Conclusion:

 

Any intellectual property regime is countries specific, and each country has a slight variation towards implementing the laws and rules. However there is an underlying common theme associated with these laws in various countries. By following the instruction and procedure related to the intellectual property laws in that region, one can maintain it and benefited over their intellectual property. The emergence of biotechnology and other related fields such as genetic engineering newer verities of animals and plants are produced. It is also managed by intellectual property rights.

 

 

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