B.A. LL.B. (Five Years) Sem 9 Intellectual Property Rights I 2013 Dec Question Paper with Solutions

Meaning of intellectual property

Intellectual property is property in the products of the human mind. Inventions, brand names, books, music, designs and secret know-how are examples. The law gives the creator exclusive rights over such a creation for a period. Others may not copy or use it without permission.

There is no single statutory definition in India. Article 2(viii) of the WIPO Convention, 1967 gives a list. It covers rights in literary, artistic and scientific works, performances, inventions and scientific discoveries. It also covers industrial designs, trade marks and trade names, and protection against unfair competition. It ends with "all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields". Article 1(2) of the TRIPS Agreement covers the seven categories in Part II of that Agreement.

Features. Intellectual property is intangible: the right is separate from the physical book or machine. It is created by law, and so is territorial: an Indian patent protects only in India. Most rights last for a limited time, after which the creation passes to the public. Each right is exclusive, but limited by the public interest. Each can be sold, licensed or mortgaged like other property, except a geographical indication.

In Monsanto Technology LLC v. Nuziveedu Seeds Ltd, (2019) 3 SCC 381, Monsanto held a patent over its Bt cotton technology and sued seed companies after a licence dispute. At the interim stage, a Division Bench of the Delhi High Court had held the patent barred by section 3(j). That clause excludes plants and essentially biological processes. The Supreme Court set that aside. Such a complex question of fact and law needs expert evidence at trial. The case shows how hard the line between inventions and living things can be.

2. Trade marks: the Trade Marks Act, 1999. A trade mark is a sign capable of graphical representation that distinguishes one person's goods or services from another's (section 2(1)(zb)). The Act came into force on 15 September 2003, replacing the 1958 Act. It protects service marks, shapes, colours, collective marks, certification marks and well-known marks. Registration lasts ten years and is renewable without limit (section 25). A registered owner sues for infringement (section 29). An unregistered owner relies on passing off, which the Act preserves (section 27(2)). Chapter IVA gives effect to the Madrid Protocol.

Copyright protects expression, not ideas. In R.G. Anand v. Delux Films, AIR 1978 SC 1613, the author of a play on provincial prejudice sued the makers of a film on the same theme. The Supreme Court dismissed the suit. There is no copyright in an idea or theme, only in its form of expression. The test is whether a viewer of both gets the unmistakable impression that one is a copy of the other.

4. Industrial designs: the Designs Act, 2000. A design is the shape, configuration, pattern, ornament or composition of lines or colours applied to an article, judged solely by the eye (section 2(d)). The Act came into force on 11 May 2001. A design must be new or original and registered. Protection lasts ten years, extendable once by five (section 11). A pirate of a registered design must pay the owner up to Rs 25,000 for each contravention. Or the owner may sue for damages and an injunction (section 22).

5. Geographical indications: the GI Act, 1999. A GI identifies goods from a place whose quality or reputation is due to that place, such as Darjeeling tea (section 2(1)(e)). The Act came into force on 15 September 2003. The GI Registry at Chennai registers it for ten years at a time (section 18). Authorised users have the exclusive right to use it (section 21). A GI cannot be assigned or licensed (section 24).

9. Related laws. The Biological Diversity Act, 2002 requires approval and benefit-sharing before IP rights are sought on Indian biological resources. The Information Technology Act, 2000 deals with cyber offences and electronic records. Customs officers can stop infringing imports under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.

Summary table

Limits

Intellectual property is a monopoly, so it is limited in the public interest. Patents may be refused for mere new forms of known medicines (section 3(d)) and are subject to compulsory licences. Copyright yields to fair dealing (section 52). Every right is territorial, so protection abroad needs separate filings, eased by the PCT and the Madrid system.

Conclusion. Intellectual property is property in creations of the mind, protected for a time so that creators are rewarded and the public eventually benefits. India has a separate law for patents, trade marks, copyright, designs, geographical indications, layout-designs and plant varieties. Trade secrets are left to contract and equity. Courts shape each right, as Monsanto, Mahendra & Mahendra, R.G. Anand and John Richard Brady show. The rights are enforced through commercial courts and the High Courts, and balanced by the public interest.