What is an Intellectual property?

Intellectual Property refers to the creation of a mind which have economic value and legal protection. Intellectual Property (IP) is a special category of property created by human intellect in the field of arts, literature, science, trades, etc. It is different from tangible properties such as house, land, car, metals etc.

According to World Intellectual Property Organization (WIPO) “Intellectual property refers to creation of a mind – everything from works of art to inventions, computer programs to trademark and other commercial signs.”

In other words, IP (Intellectual property) means things people create with their minds, like inventions, stories, designs, logos, etc. these ideas or creations are not physical objects but can be owned and protected by law.

Types of Intellectual Property

Intellectual Property is divided into two main categories:

• Industrial Property: Which includes patents for inventions, industrial designs, trademarks and geographical indications.
• Copyright and related rights: Covers literary, artistic and scientific works, includes performances and broadcasts.

Creativity and inventiveness are vital for economic growth, intellectual property laws deal with the rights and protection of intellect creations.

What are Intellectual Property rights?

Intellectual property rights (IPR) are legal rights granted to the creator or the owner of the intellectual property. These rights allow the creators or owners to control how their creation are use, sell, lease etc. the creator or owner enjoy the exclusive right over their creations. Such rights includes patent for inventions, copyright for literary and artistic works, trademarks for brand identification, industrial designs rights etc.

Types of intellectual property rights:

Essentially, Intellectual property rights (IPR) are vitals for inventors, artists, scientists and businesses as they put lot of energy money and thought into their creations. To encourage them to do that the intellectual properties laws provide protection through different kinds of rights, these are:

• Patents

Patents were one of the first type of right of intellectual property to be recognized in modern legal systems. By patenting an invention, the exclusive rights over it, meaning that they can stop anyone from using, making or selling the invention without permission.

The patent lasts for limited period of time, generally 20 years. In return, the patent owner has to disclose full details of the invention in the published patent documents.

Once the period of protection come to an end invention become Off Patent, meaning anyone is free to make, sell or use it. In this way, the patent system aims to benefit everyone.

What can be patented – An invention can be defined as a product or process that offers a new way of doing something, or new technical solution to a problem.

• Industrial Design

Industrial design right covers those elements of a product that are aesthetic or ornamental (the way it looks or feels). Owners can control commercial production, import and sale of products with the protected design.

Industrial design law only protects those aspects of a product that are ornamental, its technical features maybe protected by patent, if they meet the requirements for patent protection.

Industrial design rights typically lasts at least 10 years, with renewal options.

•  Trademarks

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those other enterprises, such as words, logos, symbols, colors, sounds and even smells.

They can be registered to give exclusive rights to use and license the trademark.

Trademark protection typically lasts 10 years but can be renewed indefinitely as long as the mark is used.

Trademarks help prevent counterfeiting and allow consumers to identify genuine products.

• Copyright

Copyright protects literary, artistic, musical, and scientific works including books, films, paintings, music, computer programs, databases, advertisements, and more.

It grants economic rights (control of reproduction, distribution, public performance) and moral rights (right to attribution and integrity).

Related rights protect performers, broadcasters, and producers of sound recordings.

Copyright protection generally lasts for the creator’s lifetime plus 60 years after death.

Copyright automatically arises on creation without registration, although voluntary registration schemes exist.

Together, these intellectual property rights promote creativity, innovation, and economic growth by protecting the interests of creators and preventing unauthorized use of their works and invention.

Assignment and Licensing of intellectual Property Rights

 Assignment of Intellectual Property:

Assignment of intellectual property (IP) rights refers to the legal process where the owner of the IP transfers all of their rights, title, and interest in the IP to another party, known as the assignee.

This transfer is typically permanent and complete, meaning the assignor relinquishes all ownership and control over the IP, including the ability to use or enforce rights related to it.

The assignment is usually formalized through an IP Assignment Agreement that specifies the scope, terms, consideration, and extent of the transfer. It is akin to selling the IP outright, and after assignment, the original owner no longer holds any rights in that property.

In Indian law, the In Indian law, the assignment of copyrights is governed by Section 18 of the Copyright Act, 1957, while trademarks are covered under Section 37 of the Trade Marks Act, 1999. Patents can be assigned under Section 68 of the Patents Act, 1970, subject to being in writing and duly executed.

Licensing of Intellectual Property

Licensing is a contractual arrangement where the IP owner (licensor) permits another party (licensee) to use the IP under agreed terms, while retaining ownership.

The license may be exclusive, non-exclusive, or sole, and can be restricted by scope, duration, or territory.

Licensing typically involves royalty payments or lump-sum consideration. Unlike assignment, the licensor continues to hold ownership and control, the licensee merely enjoys defined usage rights. This is akin or similar to renting out property rather than selling it.

In Indian law, Copyright licenses are regulated under Section 30 of the Copyright Act, 1957, while patent licenses under Section 68 of the Patents Act, 1970, and trademark licenses are generally contractual but recognized under Section 48 of the Trade Marks Act, 1999 (permitting registered users).

Both the methods of Assignment and licensing are governed by the legal agreements that define the terms of transferring rights and ownership and obligation of parties involved.

What is an intellectual property disputes?

An intellectual property dispute occurs when there is a disagreement or conflict over the rights to intellectual property, such as inventions, creative works, trademarks, or trade secrets. This happens when someone uses or copies intellectual property without permission from the rightful owner.

Common cases include copyright infringement (using creative works like music or books without consent), trademark disputes (using similar logos or brand names that cause confusion), patent disputes (using patented inventions unlawfully), and trade secret theft (stealing confidential business information).

These disputes can be complicated and often require legal action to resolve, as protecting intellectual property is crucial for creators and businesses to maintain their competitive advantages and rights. The owner of the intellectual property needs to take action if they believe their rights are violated to prevent unauthorized use and potential losses.

What is Intellectual Property Infringement?

Infringement is the act of breaking a rule, law, or right. Specifically, in intellectual property, infringement means using, copying, or exploiting someone else’s protected work (like an invention, brand, or creative material) without their permission. It is essentially a violation of the legal rights granted to the owner of that intellectual property.

For example, if someone copies a patented invention, uses a trademarked logo without approval, or distributes copyrighted music without consent, they are committing infringement.

Types of Intellectual Property Infringement:

• Copyright Infringement

Copyright infringement is the unauthorized use or production of someone else’s copyrighted work. It occurs when a person uses content copyrighted by law in a way that violates the exclusive rights of the author or creator.  For example, downloading or distributing movies online through piracy is a copyright violation.

• Trademark Infringement

Trademark infringement is the unauthorized use of a trademark or service mark that is identical or deceptively similar to registered trademark .This happens when a brand’s logo, name, or symbol is used by another business to confuse customers.

For example, selling shoes with a fake Nike logo or using a name like “dailymilk” to confuse buyers for company is trademark infringement.

Passing Off and infringement

Passing off  is a common law remedy that protects a business against another party misrepresenting their goods or services as those of original business, typically by using a similar mark, name or packaging that can create confusion among customer and damage the original business’s reputation or goodwill.

For example : ABC company selling chocolates and name their product and branded as “TATA chocolates”, the company tries to deceive the customers by making them believe that the product is from well known business.

The essence of passing off lies in the protection against deception, it prevents a person from selling goods as the goods of another, thereby safeguarding the goodwill developed by the original business.

In the historical landmark case Perry v/s Truefit (1842) stated that- “A man is not to sell goods under the pretence that they are the goods of another man”. This remains the foundation of passing off actions.

Infringement occurs when someone, who is not the registered proprietor, uses a similar or identical mark for marketing goods and services that are alike or similar to those covered by the registered mark.

The unauthorized use can include visually similar marks, or even similar sounding words, if such use lead to believe that the goods or service is from registered trademark.

To claim the damages against the unauthorized use of registered trademark the owner does not need to prove damages or harm of reputation.

In the landmark case of Cadbury India Ltd. v/s Neeraj Food Products – Delhi High court explained the difference between passing of and infringement:

• An action for trademark infringement is a statutory remedy and on the other hand, an action for passing off is a common law remedy.
• The use of trademark of the plaintiff, is a pre-requisite in the case of an action for infringement while it is not necessity of an action of passing off.
• In an action for infringement of the plaintiff’s trademark, it is immaterial that the outfit, outer covering and other written marks on the goods originated from a different source than that of a registered proprietor’s trade mark. The liability of the defendant in such a case may be absolute. However, in case of passing off of trademark, the defendant may escape the liability if he can show that the material added by him is sufficient to distinguish his goods from that of the plaintiff’s goods.

In conclusion, infringement is a protection against the unauthorized use of registered trademark whereas, passing off is a common remedy to the businesses against the deception or misrepresentation of the same.

• Patent Infringement

When an invention that is patented is copied, made, or sold by someone without the patent holder’s consent, it’s patent infringement.

For example, If a company manufactures and sells a special kind of electronic sheet which is patented and protected by other company is a patent infringement.

• Industrial Design Infringement

Copying the unique design or appearance of a product without permission is design infringement.

An example is imitating the stylish shape of a popular soft drink bottle or phone.

• Trade Secret Misappropriation

This involves stealing or revealing confidential business information like recipes, formulas, or algorithms.

For instance, leaking a secret soft drink recipe or copying a company’s software code.

• Geographical Indication (GI) Infringement

Wrongly labeling products with a famous regional name to deceive buyers is GI infringement.

For example: selling non-Darjeeling tea with the Darjeeling label.

When infringement happens, owner or creator can take legal action against the infringement and seek relief from the court by claiming damages to the infringer.

Remedies against Infringement of intellectual property rights in India

Intellectual Property Rights encompass a bundle of exclusive rights conferred on creators and innovators over their intellectual creations. In India, these rights are protected under a comprehensive statutory framework in compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Legal Framework for IPR Protection :

Copyright Act, 1957

• Grants authors, artists, and producers exclusive rights over original literary, artistic, musical, and cinematograph works.

• Remedies for infringement include injunctions, statutory damages, and criminal penalties such as imprisonment up to 3 years and fines up to 2 lacs.

Patents Act, 1970

• Protects inventions that are novel, inventive, and industrially applicable.

• Provides for civil remedies (injunctions, damages, rendition of accounts) and criminal sanctions for false representation or unauthorized use under Sections 120–123.

Trade Marks Act, 1999

• Protects registered marks and prohibits infringement and passing off.

• Criminal liability under Sections 103–105: imprisonment (6 months to 3 years) and fines (50,000 to 2,00,000).

• Civil remedies include injunctions, Anton Piller orders, and damages.

Designs Act, 2000

• Protects novel industrial designs.

• Infringement leads to civil remedies and recovery of statutory damages up to 25,000 per contravention, subject to a maximum of 50,000.

FAQ

What is Intellectual Property Lawsuit?

An Intellectual property lawsuit is a legal action taken to resolve disputes over the unauthorized use, infringement, or violation of intellectual property rights. The plaintiff or an aggrieved files the lawsuit to protect their IP rights and approach the court to seek remedies or to claim damages against the defendant.

Who can file an Intellectual property lawsuit?

A rightful owner of the intellectual property right holder either an individual or an institution can file for a law suit upon the discovery of his or her infringement of right.  

How can I protect my intellectual property rights?

To protect intellectual property (IP) from infringement, first identify the type of IP and obtain proper legal protections such as patents, trademarks, copyrights, or trade secrets. Register these rights with the relevant government authorities to secure enforceable ownership. Use contracts and nondisclosure agreements to prevent unauthorized use, monitor the market for infringements, and take swift legal action if violations occur. Regularly update and enforce IP rights to maintain protection.

What are the consequences of intellectual property infringement?

The consequences of intellectual property (IP) infringement can lead tolegal penalties such as fines, injunctions to stop the infringing activity, and damages paid to the IP owner. In severe cases, criminal charges and imprisonment may apply. Infringers may also face reputational harm and loss of business opportunities. The IP owner can seek court orders to seize or destroy infringing goods.

How long does it take to resolve an IP Dispute?

The time to resolve an intellectual property (IP) dispute varies widely, typically ranging from several months to several years. It depends on factors such as the complexity of the case, the jurisdiction, and whether the dispute is settled through negotiation, mediation, or court litigation. Alternative dispute resolution methods like mediation or arbitration are generally faster than court trials.