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Daler Mehndi SUED a toy company for TRADEMARK infringement! Do you understand INTELLECTUAL PROPERTY RIGHTS?

Intellectual Property

By: Raddhika Singh and Gayathri Sindhu

In today’s world, where progress and success is largely measured based on the ideas, information and technology that one possesses, it has become increasingly important to be aware of how to protect these ideas and innovations.

It is in this respect that Intellectual Property Rights (IPRs) come to the forefront. IPRs are those rights which aim at protecting intangible assets that are created as a product of one’s creativity and intellect. These rights not only help the creator/inventor in securing their rights over their creation but also enables them to prevent misuse and misappropriation by third parties.

In addition, Intellectual Property also incentivises the creators/inventors to continue to be innovate and have the exclusive right to commercialize their creations and inventions for a certain period of time as permitted by law. IPRs also provide further impetus to the general economic and technological development in society due to the array of rights associated with each form of IPR.

It is therefore pertinent to understand the forms of IPRs to then identify the kinds of rights and possibilities that you possess over the creations of your mind. Accordingly, the following are the most common forms of IPRs one may encounter:

1. Trademarks as Intellectual Property:

A Trademark is a right associated with the protection of any brand, sign, symbol, letters, words, etc. which are used by the owner in trade.

Securing a Trademark enables the Trademark owner to use it as a source identifier which enables the consumers to distinguish the goods and services of the owner from the goods or services offered by other traders/service providers. Once the owner gets its trademark registered the owner has a statutory right and can initiate action against any third party who uses a trademark which is identical or similar to the registered trademark of the owner so as to ensure that third parties are not able to free ride on the hard-earned goodwill and reputation garnered by the owner over a period of time.

Starbucks has been the target of many trademark violations

Trademarks therefore play a huge role in the evaluation and safeguarding of the brand value of any entity and has increasingly become an indispensable part of any trade or business. It is also crucial for startup’s looking at getting funding as they are able to get increased valuation if their Trademark is registered and has accrued enough goodwill and reputation. Some examples of well-known trademarks include Bajaj, Bisleri, Benz, Caterpillar, Honda, Intel, Kit Kat, Pepsi, Microsoft, Nestle, Amul, Google etc.

Another great read: Harley Davidson has trademarked their exhaust. How SOUNDS & SMELLS are registered as Intellectual Property!

By: Raddhika singh

2.Copyright as Intellectual Property:

Copyrights are those rights which are conferred on a legal person for their original creations such as any original literary, dramatic, musical and artistic works or cinematograph films, sound recordings etc. Works covered by Copyright thereby include novels, paintings, songs, movies, computer software, photographs, etc.

Copyrights not only confer exclusive rights to the author over the original copy of the work, but also several other rights such as the right to issue and sell copies of the work, make adaptations of the work, perform the work in public, reproduce the work in any form, etc.

The best fact about securing a Copyright is that a Copyright is automatically acquired by an author as soon as they create the work!

So irrespective of whether the Author applies for a copyright registration or not, all rights associated with a Copyright can be exercised by the author, as long as the work is the author’s original creation. For example, in the case of a book written by an author, not only does the author have the exclusive rights over the book, but also provides the author with a number of ancillary economic and moral rights such as the exclusive rights to issue and sell the copies of the book through any medium, make any translations/ adaptations of the book, make cinematograph films based on the book, etc. In this case, not only would the author receive revenue from selling copies of the book, but also from any adaptations of the book, including its use in the development of any movies or music thereon.

Intellectual Property Infringement can be expensive

3.Patents as Intellectual Property

Patents are exclusive rights granted for a new and novel invention i.e. a new product or process involving an inventive step and capable of industrial application.

Once a Patent is granted the Patent owner has monopoly rights over their invention which empowers them to exploit and use their invention in any manner, they deem fit, while excluding all others from using or creating a similar invention. However, in return of such exclusive rights, the inventors are given the Patent only for a limited period, after which all information regarding the invention passes on to the public domain.

This is to ensure that, once the term of the Patent expires and the Patent owner has derived considerable benefits from exercising monopoly over the invention, the same may also be used for the benefit of the public. This facilitates the optimum use and development of the invention, all while also ultimately resulting in benefit to the society. Patents thereby are a token of innovation and help in the equitable distribution of inventions and innovations by rewarding the inventor but also contributing to societal technological advancement. It is pertinent to note that an application for registering a patent has to be filed before the invention is disclosed to the public or else the owner losses the right.

Daler Mehndi sued a toy company for trademark violation! The toy was deemed to be profiting from his image!

4. Design as Intellectual Property

Design protection is one that is offered to the appearance or aesthetic features of an article, including any shapes, configurations, patterns, etc., in two- or three-dimensional forms, rendered/added on it through any industrial processes or means.

Design protection is however not granted to functional elements of an article and is reserved only for those aspects which may be judged by the eye alone. Industrial Designs have been so protected to encourage the use of creativity within the manufacturing sector, which in turn contributes to added commercial value of the products by making them aesthetically pleasing as well as functional.

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These are some of the most common forms of Intellectual Property Rights that we encounter in our daily lives, and their understanding would only help better us in securing our own rights, while also preventing us from mistakenly infringing someone else’s rights. So the next time you have your ‘Eureka’ moment and invent/create something, make sure to check if someone has already secured any IPRs over it, if not, then you better hurry and get to it!

Radhika Singh is one of India’s best intellectual property lawyers. She is based in Bangalore, India. Gayatri Sindhu is her associate at Aletheiaa Legal.

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