Intellectual Property (IP) has been traditionally categorized into Industrial property and Copyright. The term Industrial Property includes patents, trademarks, industrial designs, and geographic indications of source. Copyright protection is granted to protect literary, artistic and musical works. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. Intellectual property rights are generally said to be a bundle of exclusive rights granted to the lawful owner.
Why Registration of Intellectual Property is important?
Developments of new products and processes, brand names, content, etc. are resource intensive and usually require huge investments. It is therefore, the expectation of the individuals or entities creating them that they have exclusive rights over their creation to the exclusion of others. Intellectual Property system and laws essentially provides this exclusivity. For certain forms of IP like trademark and copyright, the right is born the day the work is created, registration though not mandatory provides certain benefits and advantages like prima facie proof of the ownership making it easier to enforce the IP right in court.
For registration of a mark as a trademark in India, the mark has to fulfill certain criteria. These include the following requirements:
- The mark should be non- generic– A generic trademark is a trademark or brand name that has become the colloquial or generic description for (or synonymous with) a general class of product or service, rather than the specific meaning intended by trademark’s holder. A trademark typically becomes “generalized” when the products or services with which it is associated have acquired substantial mind share.
- The mark should be non- descriptive– Descriptive trademarks are those which describe some aspect, characteristic or quality of the products on which they are used.
- The mark is not identical or similar to existing marks-A proposed mark should not be similar or identical to that for which the earlier trademark is registered in the name of a different proprietor.
- The mark should be non- deceptive –A deceptive trademark is one that wrongly indicates that the goods over which it is used have certain qualities but they do not.
The term trademark or service mark includes any word, name, symbol, or device, or any combination thereof to identify and distinguish goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.
INTERNATIONAL PROTECTION FOR TRADEMARKS
Trademark registrations are geographical in that, application has to be filed in each and every country where one wants protection. Application also has to be made in the relevant class of goods/services over which the mark is used. If the mark falls under more than one class, applications have to be filed in each relevant class. There are three different ways to seek protection for trademarks internationally.
The first option is to file application individually in each and every country where the applicant wants protection for their trademark.
International applications through Madrid system
Madrid System of International Registration of Trademarks is governed by the Madrid Agreement of 1891 and the Madrid Protocol. In that, applicants from non member countries can also seek regional protection. The Madrid System offers the possibility to obtain trademark protection in the countries of the Madrid Union by filing a single international application. The Madrid System enables applicants to submit application to one member country and designate other member countries where protection is required. The application could be submitted in a single language and is over all very cost effective, since it negates the need for multiple attorneys in each country where protection is sought.
INTERNATIONAL PROTECTION FOR PATENTS
The important agreements that should be considered when contemplating international patent protection are The Paris Convention for the protection of Industrial Property & Patent Cooperation Treaty (PCT).
1. The Paris Convention
The Paris Convention established in 1883 for the protection of Industrial Property is an international intellectual property treaty adhered to by more than 100 countries. The Paris Convention provides that each country guarantees to the citizens of the other countries the same rights in patent matters that it gives to its own citizens.
The treaty also provides for the right of priority in the case of patents. These rights means that, on the basis of a regular first application filed in one of the member countries, the Applicant may, within 12 months period of time, apply for protection in all the other member countries.
Copyright is a right given by the law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including rights of reproduction, communication to the public, adaptation and translation of the work.