INTELLECTUAL PROPERTY RIGHTS

CHAPTER – 1 INTRODUCTION TO INTELLECTUAL PROPERTY RIGHTS

Concept
Intellectual Property, put broadly, means the legal rights which result from
intellectual activity in the industrial, scientific, literary and artistic fields.
It is a right given to a person over his creation of his mind for a certain period of
time. In legal parlance, intellectual property is "the work of human intellectual to
which the legal system attributes incidents of property', such as ownership and
enjoyment, transferability and transmissibility". [W.R. Cornish, Intellectual
Property-Patents, Copyright, Trade Marks and Allied Rights (1997)).
In other words, Word Trade Organization defines intellectual property rights as
the rights given to persons over the creations of their minds. They usually give the
creator an exclusive right over the use of his/her creation for a certain period of
time.
Thus, intellectual property law aims at safeguarding creators and other producers
of intellectual properties. A goods and services by granting them certain time-
limited rights to control the use made of those productions.
Hence, countries have laws to protect intellectual property for two main reasons.
One is to give statutory expression to the moral and economic rights of creators in
their creations and the rights of the public in access to those creations. The
second is to promote, as a deliberate act of government policy, creativity and the
dissemination and applications of the result and to encourage fair trading which
would contribute to economic and social development (WIPO).
Intellectual Property rights are customarily divided in to two main areas:
1. Copyright: This mainly relates to authors of literary and artistic works,
namely books, musical composition, painting, etc. Copyright also includes
related or neighboring rights like the sound recording, broadcasting, etc.
The aim of protecting copyright and related rights is to encourage and reward
creative work.
2. Industrial property: Industrial property can usefully be divided into two
main areas:
(a) One area can be characterized as the protection of distinction signs, in
particular Trade Marks and geographical indications. The protection of such
distinctive signs aims to stimulate and ensure fair competition and to protect
consumers, by enabling them to make informed choices.
(b) Other types of industrial properties are protected primarily to stimulate
innovation, design and the creation of technology. The purpose is to provide
protection for the results investment in the development of new technology.
Whatever be the nature of intellectual property, it is an intangible property.
Thus, the term “intellectual property” covers patents, trademarks copyrights
and designs.
Thus intellectual property shall include the rights relating to:
i. Patent
ii. Trade mark
iii. Copyright
iv. Industrial Design.
v. Protection of Integrated circuit layout design.
vi. Geographical indication of goods. vii. Biological diversity.
viii. Plant varieties and farmers rights.
ix. Undisclosed information.
Nature of IPR

1. It is believed that what the mind can create unlimited, yet each creation
arduous, thus requiring the creator to have both ownership and possession of his
creation.
2. Intellectual property, though intangible in nature, yet for protection the
intangible, must be put into some tangible form at least once.
3. The right of exclusively. This is to enable others not to exploit the protected
intellectual right.
4. Intellectual property rights are subject to the doctrine of exhaustion. This
doctrine implies that once the proprietor of intellectual property right has
consented to marketing of the goods or article, he cannot subsequently stop
further marketing.
5. The law of intellectual property is not unified around the world.
6. Generally, the duration of intellectual property rights is specified by law barring
Trade Marks. Thus, on expiry of the period for which the right is granted, the
rights come into the public domain.

CASE LAWS

1. Subramaniam Swamy V. Election Commission of India, (2008) 14 SCC 318

Whether a symbol of political party is an "Intellectual Property"?
Held The Supreme Court held that a symbol is not a tangible thing, nor does it
generate any wealth. It is only the insignia which is associated with the particular
political party so as to help the millions of illiterate voters to properly exercise
their right to franchise in favor of the candidate of their choice belonging to a
particular party. The symbol may be an outcome of intellectual exercise, but it
does not become an 'intellectual property' as it has no monetary implications.
2. The Basmati Rice Patent Case
Case no. 493, Indian Appeal against US
Basmati Rice Patent, 1998
In the year 1997, an American company Rice Tec Inc. was granted a patent by the
US patent office to call the aromatic rice grown outside India as "Basmati Rice".
Tec. •Inc. had been frying to enter the international Basmati market with brands
like "Kasmati" and "Texmati" described as Basmati-type rice. With the Basmati
patent rights Rice Tec will now be able not only to call its aromatic rice Basmati
within US, but also for exports.
According to Dr. Vandana Shiva, director of a Delhi-based research foundation,
theft involved in the Basmati patent is, threefold: a theft of collective intellectual
and biodiversity heritage on Indian farmers, a theft from Indian traders and
exporters whose market are being stolen by Rice Tex Inc. and finally a deception
of consumers since Rice Tec. is using a stolen name Basmati for rice which is
derived from Indian rice but not grown in India and hence are not of the same
quality.
TRIPS and WTO: Indians feel that the US Government's decision to grant a patent
for the prized Basmati rice violets the International Treaty on Trade Related
Intellectual Property Rights (TRIPS).

3. Ranbaxy Laboratories Ltd. V. Vets Farma (Private) Ltd., (2005) 31 PTC 116.
The application sought for registration of Trade-mark. 'LEVASOL' in respect of
veterinary medicine. The opposition was made on the ground that the opponent
was registered proprietor of Trade Mark "LEMASOL" in respect of pharmaceutical
preparation for human use. The applicant's mark phonetically and visually are
identical except the third letter to that of opponent with every possibility of causing
confusion.
Held - It was held that the order of registrar disallowing the opposition was
unsustainable.
 4. Shalimar Chemical Works Ltd. V. Surender Oil and Dai Mills (Refineries),
(2004) 119 Comp Cas 535

The Appellant-company marketed coconut oil under registered trade

mark 'Shalimar'. The respondent marketed sun-flower edible oil under
the same name. ne Appellant filed a suit through its director.
Held - It was held that once a trade mark is registered, the person
gets a statutory protection and he would have the right of
restraining others from using the trade mark either identical or
deceptively similar, visually or phonetically.
5. Himalaya Drug Company v. Sumit (2006) 32 PTC 112
Facts - The plaintiff was engaged in manufacture and sale of ayurvedic
medicinal preparations. The defendant attempted to pass Off herbal
database as that of plaintiffs and violated the trade.
Held - It was held that the plaintiff was also entitled to decree of
compensated damages for the amount, as well as a decree of another sum
of same amount on account of punitive/exemplary damages.
6. Castrol Ltd. vs. A. K. Mehta, 1997
Facts - The plaintiff 'CASTROL• Ltd.' was a company incorporated under
the law of England having its registered office in UK. It carried on
business at large and extensive scale in manufacturing processing and
marketing of high grade Lubricating oil products in the UK and several
other countries of the world. The defendant was using containers with
mark "BESTROL", which is deceptively similar to plaintiff's trade mark
"CASTROL".
Held - It was held that plaintiff was entitled to relief.
7. Blackwood V. Parasuraman, AIR 1959 Mad/410
It was held that a translation of literary work is itself a literary work and is entitled
to copyright protection, if it is original and the author has expended sufficient labor
and skill on it.
It was further held that if copyright subsists in the original work, then reproduction
or publication of translation, without consent or license of the owner of the
copyright in the original, will constitute infringement.
8. Apple Computer Inc. V. Computer Edge, 1984 FSR 481 (540)
It has been held that the conversion of the source code in a computer program,
often written in hand, into object code or machine language is a translation.
9. R. G. Anand vs. Delux Films, AIR 1978 SC 1613 (1978) 4 SCC 118
The Supreme Court declared that there can be no copyright in an idea, subject
matter, themes, plots or historical or legendary facts. There needs to be an
originality only in the form of expression. Facts The plaintiff was a play writer and
producer of some plays including "Hum Hindustani". The plaintiff tried to consider
the possibility of filming the said play and narrated the play to the defendant. The
defendant, without informing the plaintiff, made a picture "New Delhi" which was
alleged to be based on the said play.
The issues that arose thus were:
(a) Is the plaintiff owner of the copyright in the play "Hum Hindustani"7 Yes - It was
decided in favour of plaintiff.
(b) Is the film "New Delhi" an infringement of plaintiff copyright? This second issue
was not decided in favour of plaintiff.
10. Western Engineering Co. V. Paul Engineering Co., AIR 1968 Cal 109.
It was held that the features of shape, configuration, pattern, etc. of the two
designs must be same. For determining whether there was infringement or not, the
similarity of features is to be determined by the eye. The designs need not be
identical on all points and differ on no point.