INTRODUCTION
Intellectual Property (IP) is a kind of invention by a living being in form of literature, artistic, designs, symbols, names, and images in trading.
Intellectual Property Rights (IPR) are granted to the owner of Intellectual Property. These rights protect the property’s misuse by someone other than the owner. Having intellectual property has become common in the modern world. Protection of Intellectual property enhances the publication and its distribution. It helps in boosting economic growth.
To distinguish IP from other forms of property is its intangibility. IP can be owned and owners have the right to protect the property. When you are given rights to protect the property you are also given duties to be fulfilled. As we all know there are various kinds of IP that leads to different kinds of rights and duties in society so that all IPs can exist together. Any IP once sold by its first owner to the other then the first owner’s claim to the property is completed. With new technologies around the world, the new items are making it up to the IP. Facilitating fair trading and competition in the market.
Bajaj Auto Ltd v TVS Motor Company Limited¹ this case has been pending before the court for 2 years leading to losses to parties due to which Supreme Court ordered that cases must be resolved within four months of filling any such related suit.
Yahoo Inc. v. Akash Arora² this case was about the IPR on the internet, in the instant, the domain name of the defendant’s website was identical to that of the plaintiff due to which people can easily get confused. The general public may believe that both the name must have some sort of connection. The court observing the importance of domain name ordered the defendant to stop the usage of an identical name as it is essential for the company’s advantage.
SUI GENERIS
The term ‘Sui Generiss’ is derived from Latin meaning its own kind and in layman’s terms unique. In legal it means a control-free legal classification. Provides a set of laws to protect Intellectual Property Rights, allowing the provider of the invention must be protected and compensated for the contribution made to society. It can also be a law that provides protection to copyright, patents, trademarks, geographical indications etc.
The policy laid down by the Indian government in 2016 aimed at making citizens aware of intellectual property. To promote modernization, acceleration of commercialization, expansion of institutions specialized in IP and development of human skills.
Intellectual property can be classified as—
COPYRIGHT:- The property in tangible form in terms of literature, artistic, poems, novels, songs, and computer codes. The copyright gives one authority over the work and the owner is capable of deriving economic benefits like commercializing the use of work and receiving respect for his/her work. Copyrights are based on the creativity and originality of work. In India, the copyright is governed under Copyright Act,1957.
PATENT:- It is an exclusive right that is granted to the owner of the invention. Invention means a new way of making use of something, the machine-made for some purpose. In India, the patent is governed under Indian Patent Act,1970 providing the owner of the patent to make use, sell, controlling the patented subject. It must be registered for getting the sanction of license. A patent can be given up by the owner of the patent by surrendering.
TRADE MARK:- It helps us in the differentiation of one product from other products that have the same class. It helps one product stands out from other products. Giving protection to any symbol, phrase, design, or icon helps in the recognition of the product. It is protected under the Trademark Act, 1999 objective of protecting trademarks from misuse of trademark, expanding the usage of trademarks and reputation of a firm’s trademarks.
GEOGRAPHICAL INDICATION:- Name and sign of product based on its geographical location. The indication leads to the defining quality and process for the manufacturing of the product. Geographical indications are governed under the Geographical Indication of Goods Act,1999 in India. It aims at providing protection to the protection considering the interest of the owner. The product that is based on geographical location may be a natural hood, agricultural good or ingredients used in a product taken from that geographical location.
INDUSTRIAL DESIGN:- It aims at protecting visual design created with dimensional or two-dimensional figures or shapes, coloured, lined, textured, and material used.
PLANT VARIETY:- There must be a diversity of plants distinct in nature, offering material used for selling, and providing material for imports and exports.
TRADE SECRETS
Trade Secret is a kind of intellectual property that includes the process of working, formulas to programs, the pattern of work or confidential information that is financially valuable, only a limited number of people are familiar and viable steps must be taken to keep the concerned information a secret. Some examples of trade secrets include Coca-Cola Drink, KFC, McDonald’s etc.
The law based on intellectual property rights forbids others to disclose a trade secret to anyone who is not part of a firm or project or not allowed to know. Trade secrets can be technical in nature including formulas, codes for programming, commercially including advertising, and processes of making.
ORIGIN
The year 1977 saw the rise of Trade Secret in India when the government orders Coke to surrender the formula for Coke due to which Coke pulled out of the Indian market and re-enter the Indian market when the central government changed. India was part of the General Agreement on Tariffs and Trade (GATT) in 1984 as the concept of intellectual property was based on immediate disclosure, publication, and registering the innovation whereas trade secrets are meant to be kept secrets as the term suggests, therefore, India refused to include trade secrets.
In 1991 the liberalisation policy was introduced aiming at private and foreign investment. India was part of the Uruguay Round that leads to the introduction of intellectual property rules into multilateral trade and the treaty was called as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Consequently, India became a member of the World Trade Organization (WTO) in the year 1995. As per the agreement, it makes it an obligation towards members of the organisation to protect ‘Trade Secret’. Later, India enacted laws to comply with the terms of the agreement.
With the passage of time, the issue became important and the need for the new law was felt, therefore, the Indian government introduced the National Innovation Bill 2008 aimed at providing a boost to innovations done either privately or publically and codification of set of laws for maintaining trade secrets. Soon, the bill disappeared in thin air. India ignored the subject till 2016 when ministerial-level meetings were held between the U.S.A. and India leading to the mention of the term ‘Trade Secrets’ in the National Intellectual Property Policy.
PROTECTION
The one who owned trade secrets must be responsible for keeping them confidential by both technical and legal measures. The owner must know the importance of trade secrets, and access to such codes, formulas, and data must be protected by stronger security.
Trade Secrets became more prone to the risk of getting misappropriated when a former trustable employee leave and was suspected of using economically valuable information for its own benefit. For the protection of the trade secrets of a company, there must be stronger laws that include the agreement of secrecy and for breach of confidence etc.
The agreement of secrecy was not considered to hold back the practice of trade³. There is always an agreement of confidentiality between employer and employee⁴.
In the instant case of John Richard Brady v Chemical Process Equipment Pvt. Ltd.⁵ the usage of the same information that is provided by the plaintiff to the defendant under the clause of confidentiality was used for the defendant’s benefit hence the confidentiality clause was breached leads to the liability of the defendant.
When secrets are shared among competitors then the competition would be unfair hence, a company that is unable to meet the satisfaction of consumers leads to a lack of promotion of new innovations. Secrets can be kept for a longer time without a bar of certain years will be applicable immediately or at the stated time.
INTERNATIONAL TREATIES
Paris Convention on Protection of Industrial Property,1883: The first treaty in favour of Intellectual Property Rights having 30 articles revised in 1967 aiming at equal treatment to IP of other member nations same to that of its own citizens, the owner may seek protection from more than one country and all countries must have some common rules regarding IPR.
Berne Convention for Protection of Literary and Artistic Work,1886: The original should be given protection instantly from the time stated an equal treatment must be given to all such works. The protection must be given to work in other member countries as well.
Universal Copyright Convention,1952: The treaty aims at national equal treatment for all IP minimum safeguards.
World Intellectual Property Organization,1967: With the objective of providing people with state cooperation towards international applications for intellectual property, technical assistance for issuance of the certification of IP.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1994 recognises the international intellectual property dispute resolution and protection mechanism.
WIPO Copyright Treaty,1996 promotes the protection of computer programs, and data stored.
CONCLUSION
Even after so many laws to protect Intellectual Property the owner still suffers the loss by bearing the high legal cost of certification and other losses. Laws are just imposed so one might know the consequence of their action but someone will follow the laws that aren’t necessary so the owners of intellectual property still face many problems. Sometimes, people may use your work as their own without your knowledge and consent, but by the time you cane to know the value of the product diminishes.
CITATIONS
1 2009 (12) SC 103
2 1999 (19) PTC (Del)
3 1967 AIR 1098
4 130 (2006) PTC 609 Del
5 AIR 1987 Delhi 372
This article is written by Simran Gulia of Maharaja Agrasen Institute of Management Studies.