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TRIPS-Patent,Trademarks,Industrial Design
1.
2. I f y o u h a v e b e e n a s k i n g y o u r s e l f t h i s q u e s t i o n , t h e n
t h i s i s f o r y o u !
3. INTELLECTUAL PROPERTY (IP)
• Intellectual properties refer to creations of
mind, literary and work of art, symbols, names
and signs used in commerce.
• It is like any other property right.
• Allows creators, or owners, of patents,
trademarks or copyrighted works to benefit
from their own work or investment in a
creation.
4. RECOGNITION OF IP
• The importance of intellectual property was
first recognized in the Paris Convention for
the Protection of Industrial Property(1883)
and the Berne Convention for the Protection
of Literary and Artistic Works (1886).
• Both treaties are administered by the World
Intellectual Property Organization (WIPO).
5. IMPORTANCE OF IP
An efficient and equitable intellectual property
system :-
• Help all countries to realize intellectual
property’s potential as a catalyst for economic
development ,social and cultural well-being.
• Help strike a balance between the interests of
innovators and the public interest, providing an
environment in which creativity and invention
can flourish, for the benefit of all.
6. INTELLECTUAL PROPERTY RIGHTS
(IPR)
• Intellectual property rights are 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.
• IPR is customarily divided into two main areas:
Copyrights and rights related to Copyrights
Industrial Property
7. TRIP’s
The TRIPS Agreement:
• The TRIPS Agreement, which came into effect
on 1 January 1995, is to date the most
comprehensive multilateral agreement on
intellectual property.
8. FEATURES OF THE AGREEMENT
Standards
The Agreement sets out the minimum standards of protection to be
provided by each Member.
Each of the main elements of protection is defined
• The standards are set by
Meeting the substantive obligations set by WIPO, Paris convention and
Berne convention.
• The TRIPS Agreement adds a substantial number of additional obligations
on matters where the pre-existing conventions are silent or were seen as
being inadequate.
9. Enforcement
• This set of provisions deals with domestic procedures
and remedies for the enforcement of intellectual
property rights.
• The Agreement lays down certain general principles
applicable to all IPR enforcement procedures.
Dispute Settlement
• The Agreement settles disputes between WTO
Members in respect to the TRIPS obligations, subject
to the WTO's dispute settlement procedures.
10. PRINCIPLES
• The Agreement provides for certain basic principles, such as national
and most-favoured-nation treatment, and some general rules to ensure
that procedural difficulties in acquiring or maintaining IPRs do not
nullify the substantive benefits that should flow from the Agreement.
• The obligations under the Agreement will apply equally to all Member
countries, but developing countries will have a longer period to phase
them in.
• Agreement is a minimum standards agreement, which allows Members
to provide more extensive protection of intellectual property if they so
wish.
• Members are left free to determine the appropriate method of
implementing the provisions of the Agreement within their own legal
system and practice.
11. GOALS
• The general goals of the TRIPS Agreement are contained in the
Preamble of the Agreement, which reproduces the basic Uruguay
Round negotiating objectives established in the TRIPS area by the 1986
Punta del Este Declaration.
• These objectives include:-
The reduction of distortions and impediments to international trade
Promotion of effective and adequate protection of intellectual property
rights
Ensuring that measures and procedures to enforce intellectual property
rights do not themselves become barriers to legitimate trade.
• The protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the
transfer and dissemination of technology, to the mutual advantage of
producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights
and obligations.
15. INDIAN DESIGN ACT,2000
• Repealed & Replaced the Designs Act,1911
• Meaning of ‘Design’ under the Act
• Controller of Industrial Design
16. MAIN PROVISIONS OF THE ACT
1. The ‘Controller General of Patents, Designs and
Trade Marks’ appointed shall be the controller
for Industrial design.
2. Registration Formality
3. Prohibition of Registration
4. Certification
5. Expiration & Renewal
6. Public Inspection
7. Petition for the cancellation
8. Benefits of Registration
9. Refused applications
10.Infringement
17. ARTICLES
Article 25-Registeration for Protection
1 .Exclusivity
2 .Obligation
Articles 26-Protection
1.Ownership
2.Exception to Protection
3.Duration
18. STEPS FOR REGISTRATION
Step 1.
Finding out whether any registration already exists
Step 2.
Preparing a representation of the design
Step 3.
Identifying the class of design
Step 4.
Providing a statement of novelty
Step 5.
Including a disclaimer
Step 6.
Claiming a priority date
19. Step 7.
Determining the fee to be paid
Step 8.
Ensuring all enclosures are attached
Step 9.
Complying with objections (if any)
Step 10.
Providing full details
20. INDUSTRIAL DESIGNS THAT CANNOT BE
REGISTERED
• Opposing to public moral values.
• Any process of construction.
• Not distinguishable from previously registered designs.
• Includes Trademark.
• Books, jackets, calendars, certificates, forms and other
documents, dressmaking patterns, greeting cards,
leaflets, maps and plan cards, postcards, stamps, medals
• Flags, Emblems or Signs of any country.
• Integrated circuits.
21. THE HAGUE SYSTEM
• The Hague System for the International Registration of
Industrial Designs provides a practical business solution for
registering up to 100 designs in over 60 territories through
filing one single international application
ADVANTAGES
• Minimum of formality and expense
• Single international application, in one language,
accompanied by the payment of a single set of fees, in one
currency and with one Office (the International Bureau).
• Better management of the protection offered
28. CONDITIONS TO BE SATISFIED BY AN
INVENTION TO BE PATENTABLE
• Novelty
• Inventiveness (Non-obviousness)
• Usefulness
29. TYPES OF INVENTIONS WHICH ARE NOT
PATENTABLE IN INDIA (SECTION 3)
• Frivolous or contrary to law
• Commercial exploitation
• Discovery of scientific principle
• Known process, machine or apparatus
• Re-arrangement or duplication of known devices
• A method of agriculture or horticulture
• Inventions relating to atomic energy
• Musical or artistic work
31. CONSEQUENCES OF GRANT OF
PATENT
RIGHTS OF A PATENTEE:
• Right to exploit the patent
• Right to grant licence etc.
• Right to surrender
• Right to sue for infringement
32. EXPIRY OF A PATENT
• Patent has lived its full term.
• Patentee fails to pay the renewal fee.
• Validity of the patent has been successfully.
challenged by an opponent.
• Patent is revoke.
33. INFRINGEMENT
• Types of Patent Infringement
(a) Direct
(b) Indirect
(c) Contributory
(d) Induced
• Patent infringement cost
• How to Sue for Patent Infringement Damages
34.
35. PATENT CO-OPERATION TREATY
• The PCT is an international treaty, administered by the World Intellectual
Property Organization (WIPO), between more than 140 Paris Convention
countries
ADVANTAGES
• Brings the world within reach
• Postpones the major costs associated with
internationalizing a patent application
• Provides a strong basis for patenting decisions
• Is used by the world’s major corporations, universities and research
institutions when they seek international patent protection
• Allows you to apply securely and easily online, and to save money by
doing so
41. TRADEMARK
MEANING
• Trademark??
• Service mark??
Consists of
• Words e.g. coca cola
• Letters e.g. idea
• Numbers e.g. 501
• Symbols e.g. McDonald’s golden arches
• Signature e.g. Ford or Johnnie Walker
• Shape e.g. Motorola
44. TYPES OF TRADEMARKS
• Product Trade-Mark
Example: Nike "swoosh”
Make my trip and Tata
• Service Trade-Mark
Example: CCD,
Kaya skin clinic
• Certification Mark
Example: ISI
• Collective Mark:
Example: CA,
NAAC,
NGO
• Defensive Trade-Mark
Example: Mercedes
• Jointly owned trademarks
45. TYPES OF NON CONVENTIONAL
TRADEMARKS
1) SOUND MARKS:
• Yahoo- yodel
• MGM and their lion's roar;
• Intel and the three-second chord sequence used with the
Pentium processor
2) SCENT MARK
• First Scent Mark in the European Union was - “the smell of
fresh cut grass” for goods, namely tennis balls in 1999
• Odor of beer for dart flights and the scent of roses for
tyres -first olfactory marks to be registered in the U.K
• The fragrance of 'Chanel No 5' for perfume failed
46. EVOLUTION OF TRADEMARK LAW IN
INDIA
Problems solved
by applying
section 54 of
specific relief act
of 1877 and
trade marks
were registered
under Indian
registration act
1908
Indian trade
mark act was
passed in 1940
in
correspondence
with English
trademarks act.
Later was
replaced by
trademarks and
merchandise act
1958
On September
15, 2003, the
Indian trade
mark act and
its trademark
rules came
into effect.
This was done
to make it
compliant to
TRIPS
obligation
47. INDIAN TRADEMARK ACT ,1999
• Classification system
• Requirements for filing trademark application
49. • Term and renewal of trade-mark
• Licensing and assignment
• Enforcement
50. MARKS THAT CANNOT BE REGISTERED
• Marks that describe value, quantity, quality, or intended
purpose of the goods or services;
• Marks that are deceptive;
• Marks that are contrary to public order or morality;
• Marks that consist of armorial bearings, flags and other
emblems or official signs of States or international
intergovernmental organizations;
• Marks of such a nature as to infringe rights acquired by third
parties in the country where protection is claimed (for
example: marks that are identical or similar to marks).
51. INFRINGEMENT
• Fundamentals of infringement (Any or below all aspect will be
considered under infringement)
• copy of whole registered mark with a few additions and alterations,
• The infringed mark is used in the course of trade the use of the infringed
mark is printed or usual representation of the mark in advertisement.
Any oral use of the trademark is not infringement.
• The mark used by the other person almost resembles the mark of the
registered proprietor which is likely to mislead or cause confusion
• Grounds for Infringement of registered Trademark
• Advertising an infringed trademark leads to unfair advantage or is
harmful to the unique characteristics and also does not support the
reputation of earlier trademark.
52. • Any person who is not registered owner of a trademark or a person who
is given the permission uses the trademark which is identical or similar
to the original trademark or is does not uses it for goods and services for
which it is registered. The trademark that has been registered has
already created a reputation of its own and use of infringed mark will
cause unfair advantage or is harmful to the reputation of trademark
which is registered
• A person who uses a registered trademark as his trade name or in his
business concern or part of both which deals with goods and services for
which the trademark is registered.
• If any distinct part of a trademark that is registered and which has
words, the trademark can be infringed by verbally using those words as
well as visual representation of it.
• If any person intentionally uses the trademark for which he knows that
he is not authorized by the owner of the mark then it is considered to be
infringement.
53. E.g.: Gorbatschow Vodka KG (“Plaintiff”) -Vs- John Distillers
Limited (“Defendant”)
E.g.: McDonalds
54. • Remedies
– an action for infringement in case of a registered trademark
– an action for passing off in the case of an unregistered
trademark
• Relief
– Injunction
– Damages
– Accounts of profits
– E.g – Finolex Cables
55. INTERNATIONAL REGISTERATIONS
TWO WAYS:
• File a trademark application with the
trademark office of each country in which you
are seeking protection,
• Use the Madrid system
56. MADRID SYSTEM
• Madrid system for the international registration of trademarks
provides one single procedure for the registration of a mark in
several territories. It is governed by two treaties, the Madrid
Agreement and the Madrid Protocol, and is administered by the
International Bureau of WIPO in Geneva, Switzerland.
ADVANTAGES:
• Apply for protection of a mark in over 80 territories
• Can extend its geographical scope to additional Contracting Parties
in a quick, simple and cost-effective manner;
• Just one single expiry date and the registration can be renewed
simply (and also electronically)
• Administration costs are less, compared to several filings in national
territories
• India became a member of Madrid protocol on july 8 2013
