Protection of Trademark applications and Intellectual Property Rights

Protection of Trademark applications and Intellectual Property Rights

 

Summary

  1. Intellectual Property Rights refers to safeguarding and protecting the rights of the owner/inventor/creator. Applying for patents, copyright, or a trademark and granting the same is a form of protection of the invention/creativity.
  2. IPR provides benefits to the inventor, ensuring that others cannot use his invention without authorization. These benefits are a reward for the actual owner for his efforts.
  3. IPR protects the invention/creativity from infringement, imitation and exclusivity.
  4. WIPO is a specialized agency that harmonises the Intellectual Property laws of different countries.
  5. To protect IPR, one must use the IP regularly and correctly. Registration of IPR is important.
  6. Vigilance against misuse and infringement of IPRs is a must.
  7. Legal action should be followed without delay in case of infringement and misuse.
  8. IPR encourages investment, innovations and healthy competition.

An Intellectual Property Right is acquired for the creation of the mind, which is original and is workable. Law recognizes exclusive monopoly rights for the actual owner, which allows him to use the invention for his monetary gains. The innovations involve heavy investments. Protection is granted so that the owner can reap the fruits of his labour.

Time and money spent researching and developing a product or service will go waste if the intellectual property created is not protected. Therefore, it is vital to guard Intellectual Property Rights against infringement as the protection fosters innovations and investments.

Recommended reading: Arbitration Dispute Resolution in India

What is the protection of Intellectual Property rights?  

Applying for patents, copyright, or a trademark and granting the same is a form of protection of the invention/creativity. In addition, certain benefits become available to the inventor, ensuring that others cannot use his invention without authorization. These benefits are a reward for the actual owner for his efforts.

Protection of Intellectual Property Rights refers to safeguarding the rights of the owner. The protection is granted and is essential:

  • To prevent infringement
  • To stop imitation
  • To maintain exclusivity
  • To encourage investment and innovations.
  • To regulate fair and healthy competition.
  • To survive the cutthroat competition in businesses.

If there is no protection, it leads to 

  • Loss of business to the pirates
  • Distortions and imbalances in trade and business
  • Production and marketing of substandard and counterfeit products and services
  • Loss of money to the actual owner/creator
  • Loss of competitive price to the consumer of the product and services

Protection of IPRs has a global dimension – Whether IPRs are protected in the country of origin only?

Intellectual Property Rights need protection not only in domestic markets but also internationally. With the opening up of economies, the products and services have a global reach. Therefore, security is necessary and has to be solid and effective.

The IPRs are generally territorial, i.e., for the protection of IPR in different countries, a separate application needs to be filed in all the nations. However, now there are specific regional systems and International Treaties such that a person can file one application for seeking protection in multiple countries, and it is also cost-effective. Thus, the IPRs are protected not only in the land of origin but in other countries also.

Since the IPRs have an international domain, and these are used worldwide, the rules/law for the regulation and protection of IPRs must be such that they have acceptance beyond national boundaries. Therefore, we have treaties/conventions at the international level which govern the rules and provide a minimum standard of protection relating to IPRs, like the Patent Cooperation Treaty, Paris Convention, Berne Convention, Madrid Protocol, etc.

WIPO is a specialized agency that harmonizes the Intellectual Property laws of different countries.

Recommended reading: Tax advisory & services in India

All the countries that are signatories to these treaties and conventions or agreements must comply with the rules mentioned therein and conform their domestic Intellectual Property Laws to the rules and principles defined in these International Instruments.

What are the principles for the protection of IPRs?

The basic principles of protection for IPRs, which find a place in almost all National Laws and even in International Conventions and Treaties, are:

  • National Treatment- Any foreign national applying for a particular IPR in another country will get the same protection as that country provides to its nationals.
  • Minimum Period of Protection- The protection is granted for a minimum period known as the term of the IP, and no government can stretch it beyond the minimum period as prescribed and agreed upon at the international level.
  • Scope of protection- The scope of protection depends upon the kind of intellectual property and international norms. Each IPR enjoys different protection. For instance, the period of protection varies for other IPRs. New trademarks can also be protected if non-usage is explicable.
  • No conditions – Generally, the grant of protection is not made conditional. If the Intellectual Property fulfils the essential criteria like novelty, originality, innovation, workability, etc., it gets the protection sought. Of course, the invention/creation should not be against morality or public interest.

By adhering to the terms of the International Treaties and Conventions, all the member countries are mutually benefitted.

Recommended reading: The procedure of set up of appropriate legal entity in India

How to protect the IPRs?

  • Use the IP regularly and correctly – Once the patent, trademark, or copyright is acquired, it is expected to be used, which is the best way to protect it. It is not easy to defend ownership of unused IPRs.
  • Register the IPRs.
  • Be vigilant against misuse and infringement of IPRs.
  • Go for Legal Action without delay.

How does registration help in the protection of IPRs? 

Registration of IPRs means filing papers in the designated offices and receiving a seal of ownership for your Intellectual Property. Registration can be based on the first use rule or first inventor rule, depending upon the nature of the IP.

Registration of IPRs confirms the ownership of the intellectual property. It helps to monopolize the creation and ensures that no one else uses the invention without the consent of the actual owner so that the owner gets the monetary benefits.

Trademarks and copyrights are different from patents in that they are available as soon as one becomes the author of some work or starts using a trademark. In the case of trademarks, even the unregistered ones are recognized in India and protected. Getting them registered is optional. It’s better to get them registered as with the advancement of technology, trademarks and copyrights are more prone to piracy and imitation.

In the case of patents, it is not mandatory to get them registered. But with registration, they are protected as legal ownership is with the person whose name appears on the patent register.

Registered IPRs have more weightage in any legal proceedings than unregistered ones.

It is advised to seek professional assistance to complete the IPR registration process.

Recommended reading: Drafting and finalization of all type of corporate contracts

How to protect the IPRs if there is infringement?

It is advised to take appropriate legal remedies whenever misuse or infringement is detected. The legal action can be civil or criminal depending upon the nature of the right and violation. The available remedies are:

Demand Letter or cease and desist notice: It is a kind of notice to the infringer to refrain from using the IP over which the owner has the exclusive right. It is a kind of warning to the person that if he does not stop the misuse of the IP, he will have to face the legal consequences for infringement, including a lawsuit. It is also an attempt to solve the matter amicably out of court. If the infringer adheres to the sender’s demands of notice and desists from using the IP, the issue ends.

Filing Injunction Application: Injunction means stopping or prohibiting a person from doing an adverse action in the other party’s interest. For example, it may be an order to prevent the party from misusing or misrepresenting the IP (patent, trademark, or copyright) or an order refraining the party from disposing of the assets. An injunction can be temporary or permanent. For example, during the pendency of the lawsuit, an interim injunction is granted.

The demand of compensation in court: The infringer has to compensate the owner by paying the damages or accounting for the profits. The inventor is compensated for the loss caused to him by the infringement. At times, the infringer may have to pay back his earnings.

Recommended reading: Corporate law and NCLT

Other Provisions for protection of IPRs:

In India, there is a provision for registering Intellectual Property Rights with the Custom and Excise Department. After registration, the officials are empowered to seize and confiscate the goods if there is a suspicion that goods are infringing the IPRs registered in India. They are duty-bound to do so.

Providing false information or making any false declaration about IPR while applying or making to any official agency is recognized as a criminal offence.

Anton Pillar Order in Indian Legal System: Anton Pillar Order is a harsh and robust court order. It is made on an application by a party with solid evidence in hand wherein the party is granted permission to enter the defendant’s premises (infringer) and inspect and seize the documents or goods so that the infringer does not destroy these. Such powers are available with Indian Courts under various statutes governing the IPRs.

In India, we have various laws relating to IPRs wherein the Courts have ample powers to issue directions and orders to protect the IPRs. These acts provide a sound robust legal system to prevent infringement of IPR.

Recommended reading: How to File a Claim as Financial Creditor Before NCLT

Conclusion

It is significant to protect IPRs as the protection will encourage innovations, research, and development. In addition, a strong and effective protection regime will create a positive, healthy business environment and foster economic growth.

FAQs

 

  • Use the IP regularly and correctly
  • Register the IPRs.
  • Be vigilant against misuse and infringement of IPRs.
  • Go for Legal Action without delay.

 Registration of IPRs confirms the ownership of the intellectual property. It helps to monopolize the creation and ensures that no one else uses the invention without the consent of the actual owner so that the owner gets the monetary benefits

 In the case of patents, it is not mandatory to get them registered. But with registration, they are protected as legal ownership is with the person whose name appears on the patent register.

 It may be an excellent thought to register your copyright. Doing so benefits the concerned party to prove ownership and if one has to initiate criminal proceedings against the infringers. In most cases, though, registration of IPRs is not crucial to maintain a copyright infringement claim in India.

 

  • National Treatment- Any foreign national applying for a particular IPR in another country will get the same protection as that country provides to its nationals.
  • Minimum Period of Protection- The protection is granted for a minimum period known as the term of the IP.
  • Scope of protection- The scope of protection depends upon the kind of intellectual property and international norms.

No conditions – If the Intellectual Property fulfils the essential criteria like novelty, originality, innovation, workability, etc., it gets the protection sought.

 

  • Demand Letter or cease and desist notice
  • Filing Injunction Application
  • The demand for compensation in court
  • Anton Pillar Order in Indian Legal System

 

  1. Patents
  2. Trademarks
  3. Copyrights
  4. Trade secrets

 Intellectual Property Rights need protection not only in domestic markets but also internationally. Therefore, one must file a separate application in all the nations to protect IPR.

Cookies on NRI Legal Services Sites

We use cookies for a number of reasons, such as keeping NRI Legal Services Sites reliable and secure, personalising content and ads, providing social media features and to analyse how our Sites are used.

Manage cookies