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Intellectual Property Rights – #AMA by Rahul Dhote

 Hello everyone. So, before I begin with the Q and A session and first like to introduce myself, I am Rahul, the partner of a law firm called Literati Juris. We are based in Bombay and Vadodara and we specialize in intellectual laws, media & entertainment laws. First of all, I want to thank Lawyered for giving me this opportunity to interact with you. I think this Q&A Session is excellent initiative spreading IP Awareness and in all my sessions the companies and startups especially I always stress upon this point that they should mandatorily register their IPR and not only will assist them in increasing the valuation of the company or any entity but it will also assist them in enforcing their IP if there any infringement issues.

So, moving to the questions, I was forwarded five questions by Lawyered. I'll begin answering the questions. So, the first question was Who is responsible for administration of IPR in the country? So, let us understand what are the kinds of IP firstly there is Patent who is administered by the Controller of Patents, Trade Marks and designs. They have offices in Mumbai in Delhi in Calcutta and in Chennai. So, on the basis of the address of the entity or an individual he has to approach that respective office and file the respective IP. So, this is with patents. Trademarks are administered by registrar of trademarks again at five offices in India which I've already mentioned. Then comes Copyrights administered by registrar of copyright in Delhi. Then comes geographical indication of who has an office in Chennai that's the only office. Then comes designs, designs are administered by Registrar of Design who has an office in Calcutta. So, these are the primary IP and there is one more called integrated circuit layout design that is has an office in Delhi. So, these are essentially an important IP and the respective authorities when it comes to ministry's patents, trademarks, copyright, designs and GIs, they are administered and they come under the Department of Industry and Policy and Promotion which again comes in the Ministry of Commerce, integrated circuit is managed by a Ministry of Electronics and Information Technology. So, this is a detailed answer to the 1st Question.

Now to the second question, it is what are the rights of copyright holder (which when violated lead to the infringement)?

Now let us understand what is a copyright. Copyright is basically an exclusive right provided to an individual or granted to an individual or entity upon creation of work.

So, what are the works in which copyright subsist, it is literary work. Literary work can be slogans, style Guides, instruction but anything literary, then comes artistic work. Artistic can be logos, designs, artistic elements in products etc. Then comes a musical work which can be in the form of musical notes. Then comes dramatic work which are often performances etc. Then is sound recording and the cinematograph Film. Cinematograph Film is basically a bundle of all the underlying rights be it literally like artistic, dramatic, sound recording bundle together in the form of cinematograph film. So, this is essentially the works in which copyright subsist, which is mentioned under section 13 of the Copyright Act. These works are granted only upon creation but an expression in a material form.

Copyright is not provided to an idea let's say it has to be expressed in a material form you have to put the pen to the people.

So that's essentially what is copyrights and it works, now coming to the question what are the rights of a copyright holder?

So basically, copyright holder has a right to reproduce, right to issue copies and has a right to translation, adaptation, broadcasting for example,

There is a book Harry Potter which was basically you know adapted enough in the form of a film.

There are various other examples. That is Lord of The Rings again.

You know that that actually there this book which was published was produced in the form of a film. So, this right is given only to the holder of the public or the person who has created that particular copyright.

I'm sorry before I go the question. I would like to mention literary, dramatic, musical, artistic, cinematography and whoever uses if any third party uses such work without the permission of the owner that will amount to infringement and the owner can approach the civil court and also a criminal court because there is a remedy under Section 63 of the Copyright Act.

Now moving to the third question What are the essential requirements for registration of a design act, 2000? So, let us examine this one by first, looking at a definition of design. 

So, section 2 sub clause D define design.

Design means only the features of shape configuration pattern or composition of lights of the colors applied to an article, whether they're two dimensional or three dimensional or in both the forms. By any industrial process or means whether the manual, mechanical or chemical separate or combined which in the finished article appeals to an eye and judged solely by an eye but does not include any mode or principle of construction or anything which is in substance a mere mechanical device and does not include any trademark as defined in the trademark act, property mark and any artistic work mentioned in the copyright act.

So, it essentially means that design gives a right to the shape, configuration or ornamentation of an article which can be produced by a mechanical or an industrial process. 

So, it means that it does not give a right on the functionality it only gives a right to the features of a design which appeals to an eye and solely judged by an eye.

 So for example if I want to register the pen I will only register the pictures of pen and not the functionality so I will click pictures of this pen in different angles. I will make an application with the registrar of design in Kolkata, there will be an examination process with examiners of design, he will examine it whether it is original or novel or whether there are any designs which are registered previously. If there are designs registered previously the examiner will put objections and will write to the applicant to prove originality or novelty. Accordingly, the applicant has to submit a response proving its originality. There after will be granted that the registration be granted. There is no stage of publication and design like the Patents and trademarks. 

So moving on to the next question It is in relation to trademarks.

How is Trademark Act 1999 different from trade and merchandise act 1958?

So basically trade & merchandise act, 1958 which was repealed by the 1999 Act. After trade and merchandise Act of 1958 India signed TRIPS agreement in 1995 which is a Trade Related Aspects of Intellectual Property Rights and in accordance with the TRIPS agreement this agreement certain changes were made and that is by a separate act was enacted that is the 1999 Act. 

So there were a few changes that there were notable changes which I can say are enlarger definition of the mark. 

And they included shape packaging and combination of colors the registration process was simplified. 

There was intellectual property appellate board which were established earlier the appeal from controller of trademark the light to the High Court which is now changed to IPAB so all the appeals lie to IPAB and any order passed by IPAB can be challenged in the High Court by way of  public petition.

Another important change was the period of renewal was announced from seven years to ten years. So basically the trade and merchandise act, 1958 has been repealed and it does not hold presently. 

Now moving on to the next question it is in relation to the integrated circuit.

So the question being what is not registerable in the integrated circuit design law? Firstly the integrated circuit Design is governed by semiconductor integrated circuit design act.

It is similar to design law. Basically the static features are registrable in this wherein the functionality is not registrable.

So basically only the layout design of the Semiconductor which essentially is a mask layout will be registered and any idea seizure process system you know program stored in the integrated circuit or method of operation will not be registrable. 

It is the process of registration of semiconductor is similar to that of a design. The only difference is the semiconductor layout design. 

Once it is examined it will published and there will be three months time for a third party to take an objection that the semiconductor design is not novel or original. 

Another important aspect of the integrated circuit layout design should be original, novel and inherently distinctive. So if there is a layout design which already in the market or published in any form then this application will not be sustainable.

 So once it is it is applied and registration is granted for 10 years. Now according to my experience what is happening is since the integrated circuit layout design can be easily copied applicants frames from filing design applications.

 It is for this reason that so I hope I have satisfied.

Sorry sorry sorry I hope I have satisfactorily answered all your question and I hope Lawyered will again give me an opportunity to conduct such Q&A sessions in the future. Thank you everyone.