Intellectual Property - What It Is
By George Kutty
Intellectual Property (often just called “IP”) is a general term covering patents, trademarks, designs, copyrights, geographical indications and in some countries the concept of "unfair competition". It is, as the name suggests, the intangible personal property arising from intellectual creation. Since intangible, owner of intellectual property cannot build a fence around it as with real estate or place it in a bank locker as with valuables. To address the situation, governments have created a variety of forms of intellectual property protection.
Types of Intellectual Property Protection
Some of the more common types of intellectual property protection are Patents, Trade Marks, Designs, Copyrights and Geographical Indications.
Patents are by far the most technically demanding branches of intellectual property. In basic terms, a patent is a monopoly right granted by the government to a person who has invented a new useful articles or an improvement of an article or a new process of making an article. It is a negative right, granted to exclude others from making, using or selling the invention within a certain jurisdiction for a limited period of time. A patent granted by a patent office is applicable within the geographical boundaries of that country only. There is no International or World Patent. An inventor has to file an application in each country, where he seeks to protect his invention. There are regional and/or International treaties to facilitate the procedure to seek protection like the European Patent Organization (EPO) and the Patent Co-operation Treaty (PCT).
Trade Marks popularly known as brand name, is an identification symbol which may be a word, a device, a label or numeral etc. or a combination of word and design, a slogan or even a distinctive sound, which identifies and distinguishes the goods or services of one party from those of another. Used to identify a service, it can be called a Service Mark. In general, the term trademark can be used to refer to both trademarks and service marks. Normally, a trademark for goods is the word or design that appears on the product or on its packaging, while a service mark is usually the word or design that is used in advertising to identify the source or provider of the services.
Registration of a trademark is not mandatory, but does confer very substantial commercial benefits. When taking legal action against others, registered trademark users need only base their case on the registration, whereas users of unregistered trademarks must rely exclusively on passing off for protection. Suing for infringement of a trademark is much simpler than launching a common law action for passing off to protect any unregistered trade mark. The Concept of 'passing off ' is common law remedy and it is available for a trademark or a trade name on the basis of 'prior user' status.
Designs means only features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, but does not include any mode or principle of construction or anything with is in substance a mere mechanical device, and does include any trade mark. A design in order to be registrable must be new or original not previously published.
Copyrights protect the tangible expression of ideas. Copyright protection attaches when the creator puts pen to paper and creates a tangible expression of the idea. A copyright can be used to protect original works of authorship that are fixed in any tangible medium of expression. Thus, literary works, music, sound recordings, architectural and engineering drawings, pictures, photographs, paintings, and computer software are amenable to copyright protection. A copyright protects how the subject matter is expressed, not the idea itself or how the described subject matter functions. The subject matter must be "novel" to the extent that it must not have already been placed in the public domain and, thus, dedicated to the public.
Geographical Indications is a sign used which refers to goods emanating from a specific country or to a place situated therein as being the place of origin of those goods. Typically, such a name conveys an assurance of quality and distinctiveness that is essentially attributable to the original place of production.
Geographical Indications are similar to trademarks in that they function as source indicators. However, there is clear distinction lies in the fact that while a trademark identifies a good or service as originating from a particular producer, a geographical indication identifies the specific place from where the goods originates.
P.M.George Kutty, Advocate & Registered Patent Attorney, India - Specialist in PCT National Phase Filing - URL: www.pmgip.com.