CS Professional · Intellectual Property Rights - Law and Practice

Types of Intellectual Property: formula sheet

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Key formulas

Meaning of IPR: IPR = legal rights over intangible creations of the mind, giving the owner exclusive control for a period; Use this as your opening line in any definition question.
Nature of IPR: Intangible + exclusive + territorial + generally time-limited + transferable + subject to public-interest limits; Trade secrets have no fixed term; protection lasts while secrecy lasts.
Classification: Industrial property (patents, trademarks, designs, GIs, trade secrets) | Copyright and related rights | Other sui generis rights (layout-designs, plant varieties); Add the Indian statute for each type to earn extra marks.
Natural rights theory: Labour applied to a creation gives the creator a natural right to its fruits (Locke); Criticised for ignoring the public domain and the role of society in creation.
Utilitarian theory: Exclusive rights are an incentive to create; the aim is the greatest social benefit (Bentham); Underlies the patent bargain: monopoly in return for disclosure.
Personality theory: A creation is an extension of the creator's personality, so it deserves protection (Kant, Hegel); Explains moral rights in copyright.
Social planning theory: IP law is a tool to shape a just and culturally rich society; Supports limits such as compulsory licences and fair dealing.
Definition of invention: Invention = new product or process + inventive step + capable of industrial application; All three limbs must be met. Missing any one means no patent.
Term of a patent: Term = 20 years from the date of filing the application; Counts from the filing date, not the grant date. Renewal fees are payable every year to keep it alive.
Test of patentability: Patentable = satisfies the invention test + not excluded by Section 3 or 4; Always check the exclusions after the three tests.
Scope of product patent right: Right to prevent others from making, using, offering for sale, selling or importing the product in India; Applies without the patentee's consent. For a process patent the right covers using the process and the product obtained directly by it.
Who may apply: True and first inventor, or assignee, or legal representative of a deceased person; Section 6. Application may be made alone or jointly.
Definition of trademark: Trademark = mark + capable of graphical representation + capable of distinguishing goods or services; All three elements must be present. Shape of goods, packaging and colour combinations can qualify.
Absolute grounds: Refusal because of the nature of the mark itself; Examples: no distinctive character, descriptive, customary in trade, deceptive, offensive. Acquired distinctiveness through use can cure some of these.
Relative grounds: Refusal because of an earlier mark: identical or similar mark + identical or similar goods or services + likelihood of confusion; The test is confusion of the public, which may include association with the earlier mark.
Term of registration: 10 years from the date of application; renewable for 10 years each time; Renewal is by application and fee. A lapsed mark can be restored by the Registrar in the prescribed manner.
Goods versus services: Trademark → goods; service mark → services; The Act treats both under the same registration system. The difference lies in what the mark is used for.
Protected classes of work: Original literary, dramatic, musical, artistic works + cinematograph films + sound recordings; Protection is for expression, not ideas, and arises automatically on creation. Registration is not mandatory.
First owner: default rule: First owner = author; Applies unless an exception, such as employment, commission or Government work, or a contract says otherwise.
First owner: employment: Work made under a contract of service → employer is first owner (absent contrary agreement); This does not apply to a contract for services, such as an independent contractor.
Term for original literary, dramatic, musical and artistic works: Author's lifetime + 60 years (from the start of the year after death); For joint authors, count from the death of the last surviving author.
Term for films, sound recordings, photographs, posthumous, anonymous and pseudonymous works: 60 years from the start of the calendar year after publication; State the starting point of the count. Examiners look for it.
Moral rights: Section 57: right to claim authorship + right to restrain or claim damages for distortion, mutilation or modification prejudicial to honour or reputation; Independent of economic rights and available even after assignment of copyright.
Economic rights: Section 14: reproduce, issue copies, perform or communicate to the public, adapt, translate, and for films and sound recordings, sell or commercially rent; Can be assigned or licensed, in whole or in part.
Definition of design: Design = features of shape, configuration, pattern, ornament or composition of lines or colours + applied to an article + by an industrial process + appeal to and judged solely by the eye; Mode or principle of construction, mere mechanical devices, trade marks, property marks and artistic works are excluded.
Grounds barring registration: Not new or original | disclosed to the public before filing or priority date | not significantly distinguishable from known designs | scandalous or obscene matter; Section 4. Learn all four. These are a separate test from the exclusions in the definition of design (section 2(d)): first ask whether the thing is a design at all, then whether any section 4 ground bars registration. Disclosure counts whether in India or abroad.
Term of protection: 10 years from registration + extension of 5 years = 15 years maximum; Extension needs an application and fee before the first 10 years expire.
Rights on registration: Exclusive right to apply the design to any article in the class in which it is registered; This is called copyright in the design. It is not the same as copyright under the Copyright Act.
Piracy liability: Up to ₹25,000 per contravention, recoverable as contract debt; total for any one design up to ₹50,000; Section 22. The proprietor can instead sue for damages and an injunction, but then cannot also claim the contract debt. The suit lies in a court not lower than a District Court.
Registration per class: One design, one class of articles per application; A design for articles in different classes needs separate applications. The Locarno classification is followed.
Definition of GI: GI = indication identifying goods as originating in a territory, region or locality, where a given quality, reputation or other characteristic is essentially attributable to its geographical origin; For manufactured goods, one of the activities of production, processing or preparation must take place in that territory.
Who may apply: Association of persons / producers / organisation / authority established by or under law, representing the interests of the producers; An individual producer alone does not apply as owner. Applicant must represent producers of the goods concerned.
Register structure: Part A = registered geographical indications; Part B = registered authorised users; Authorised users are registered separately, on application, after the GI is registered.
Duration: Registration valid for 10 years; renewable for further periods of 10 years; An authorised user's registration runs for 10 years or until the GI registration ends, whichever is earlier.
Transfer limits: A registered GI is a public property: not assignable, transmissible, licensable, pledgeable or mortgageable; Under Section 24, the right of an authorised user is also not assignable or transmissible. On the user's death, the registration may be continued for the legal representative or successor who applies to the Registrar within the prescribed time and is registered. Otherwise the registration lapses on the death of the user.
Core test: Origin + essential link between origin and quality/reputation/characteristic + producers' community; Use these three elements to structure answers on registrability.
Test for a trade secret: Secret + commercial value because secret + reasonable steps to keep it secret; This is the TRIPS-style test. Apply all three limbs to the facts.
Source of protection in India: No special statute; contract + breach of confidence (equity) + related laws; Do not say a trade secret is registered or has a fixed term.
Duration of trade secret protection: Lasts while secrecy lasts; Public disclosure by the owner or lawful independent discovery ends it.
Plant variety protection: PPVFR Act, 2001 - sui generis; registration gives breeder exclusive rights; Farmers' rights exist alongside breeders' rights and researchers' use.
IC layout-design protection: SICLD Act, 2000 - registration of original, distinctive layout-design not commercially exploited before filing (limited two-year grace); term 10 years; Registration is needed; check the Act for the exact exploitation conditions.

Quick revision

IPR are legal rights over creations of the mind, giving the owner exclusive control for a limited purpose or time.
Patent protects a new, inventive invention that is capable of industrial application, subject to statutory exclusions.
Trademark protects a mark that identifies the source of goods or services and can be represented graphically.
Copyright protects original expression, not ideas, and arises automatically on creation.
Industrial design protects the visual appearance of an article, such as shape, pattern or configuration, not its function.
Geographical indication identifies goods linked to a place where quality or reputation comes from that origin.
Trade secrets are protected by confidentiality, contract and law of confidence, not by registration.
Registration is essential for patents, registered trademarks, designs and GIs, but not for copyright.
Always check the term and renewal rules for each right as given in its Act.
Pick the right IP by asking: is it an invention, a brand, a work, an appearance, an origin or confidential information?
One product can carry several rights at once, for example design, trademark and copyright.
In case answers, state the provision, apply it to the facts and then conclude.

Common mistakes

Treating IP and physical property as the same. Fix: State clearly that IP is intangible, territorial and mostly time-limited, and that owning a copy does not mean owning the IP.
Saying an idea itself is protected. Fix: Say that IP law protects the expression or the technical application, not the bare idea.
Counting the 20-year term from the date of grant. Fix: Remember the term runs from the date of filing. Grant usually comes later, so the effective monopoly is shorter.
Saying any computer program or software cannot be patented. Fix: The exclusion is for a computer program per se. Write the words 'per se' and note that a technical solution with a real technical effect needs separate analysis.
Mixing up absolute and relative grounds. Fix: Ask whether the problem lies in the mark alone (absolute) or in a clash with an earlier mark (relative).
Saying a trademark must be a word or logo. Fix: Mention that shape of goods, packaging and colour combinations can qualify if they distinguish and can be represented graphically.
Saying copyright protects ideas, concepts or titles of work as such. Fix: State that copyright protects expression only. Add that facts, methods and ideas stay free for anyone to use.
Assuming registration is needed for copyright to arise. Fix: Write that copyright arises on creation. Registration is optional and gives prima facie evidence of the particulars entered.
Saying a design protects how a product works. Fix: Remember that a design protects appearance only. Mode or principle of construction and mechanical devices are excluded from the definition.
Stating the term as 10 years only, or as 15 years straight. Fix: Write: 10 years from registration, extendable by 5 years on application before expiry, so 15 at most.

Exam tips

Begin every answer with a crisp definition; examiners look for it first.
Pair each theory with its thinker and one criticism to separate your answer from average ones.
In case-based questions, name the type of IP before applying any rule.
Use bullets and short headings in your answer; clarity earns marks in a three-hour written paper.
Since the elective is open book, mark the classification chart and theories in your material so you can find them fast.
Write the definition of invention first. Examiners give marks for the provision before the analysis.
Learn the Section 3 list by keywords, and quote the clause only if you are sure of it.
In comparison questions such as patent versus copyright, answer in a short table-like list of points: subject, how it arises, term, disclosure.