This Article is written by Akinyemi Rodiat Mercy, a Third-year law student of University Of Lagos

INTRODUCTION

Business owners are dealing with court battles over product rights, preventing copying, making their products stand out, earning money, and reducing competition. They are finding their strong feet in the marketplace to ensure there is no room for any form of infringement whatsoever as a result of third-party parties' illegal activity through piracy and other means of copying creators' ideas. Most creators, companies, and entrepreneurs, in their hunt for protection, have found intellectual property and its protections legal, through registration of patents, trademarks, trade secrets, and copyright.

The idea of intellectual property is basically about man’s ability to recreate something new. The word intellectual is derived from the Latin word intellectus, which means perceiving, discerning, or understanding. Property on the other hand is derived from the Latin word, which means singularity or ownership. In simple terms, Intellectual Property is the ownership of creation (of mind).

According to history, the idea of intellectual property emerged in India through the dominance of the colonial master and there on the country’s laws, this was strictly enforced before the Indian gained her independence. India's colonial history also influenced its approach to IP in terms of balancing the rights of creators with the needs of the public, which simply implies that any creation made by a creator must be used for the public and not for some in-use purposes. The colonialist Influence on India, on the use of intellectual property rights brought about the laws for its protection, which are the Copyright Act, Trademark Act, Patent Act, and Trade Secrets. India made her first copyright law in 1847, and it was named the Copyright Act of 1847,

In 1947, India gained its independence and this gave it freedom, authority, dominance, and power as a sovereign country. This led to changes in its policies, although these changes did not affect the influence of the British on its intellectual property rights, the Patent Act of 1970, Copyright Section 1847, Trademark Act, etc remain the same.

IPRs have taken on substantial importance in India's legal landscape. India has ratified the Accord on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), which is part of the agreement that established the World Trade Organization ("WTO").

Intellectual property rights ("IPR") refer to the legal ownership of intangible mental creations such as inventions, literary and artistic works, and commercial symbols, names, and pictures.[1] IPR in India is critical for economic growth and competitiveness, and the government has made great progress in recent years to modernize its IPR framework. The three basic categories of IPR are trademarks, patents, and copyrights. The Indian government has implemented different laws and regulations to keep IP infringement and enforcement in India in check.

Intellectual property rights require solid protection, this enables creators to enjoy the generation of revenue and protection of creations. There are various ways I’d protect creations, which are the Trademark Act, Patent Act, and Copyright Act.

Intellectual Property India is administered by the Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM). This is a subordinate office of the government and administers the Indian law of Patents, Designs, Trademarks, and Geographical Indications.

TRADEMARKS

Trademark is one of the effective forms of protection of intellectual property, which gives exclusive rights to original owners, and identifies the source of every creation (by protecting the business marks).

According to the World Intellectual Property Organization, A trademark is a sign capable of distinguishing the goods or services produced or provided by one enterprise from those of other enterprises. It is also known as a sign, or symbol that is used to identify or distinguish goods or products.

Trademark registrations are done by the office of the Comptroller General which is legally backed up as provided in the Trademark Act 1999. (Section 18 of the Trademark Act precisely).

One of the prominent cases that explain the existence and importance of trademarks is the case of Parle Products Pvt v JP &Co, in this case, there was an issue in the court between the parties which emerged as a result of the use of similar biscuit wrappers by JP co, the plaintiff claimed he has trademarked the wrapper and so the plaintiff sued the defendant on the grounds for infringement. The Supreme Court held that even the least resemblances in the biscuit wrappers could confuse.

In the case of Sony Corporation v K Selvamurthy[2], in this case, the court ruled in favor of the defendant who was sued for infringing on the plaintiff’s property whose property name was Sony Travels and Tours, hence court mentioned that the company does not operate on related services, and it cannot be regarded as infringement. A very similar case is also the case of Vishnudas v Vazir Sultan Tobacco Co. Ltd where the court held that the products were different enough to enable separate trademark registrations.

COPYRIGHT

The copyright law, like the trademark, also emerged because of the influence of the colonial masters. It can be traced to the colonial era, precisely during British governance. The first legislation that was made after India's independence was the Copyright Act of 1757. Which was later amended in the year 2012 through the Copyright (Amendment) Act. The word copyright was derived from the Latin word copia, plenty, (which means the right to copy). According to IP - European Business and Technology ( IP help desk ) Copyright is an intellectual property right that the law gives to a creator of literary, dramatic, musical, and artistic work and a producer of cinematograph films and sound recordings. In simple terms, copyright is an exclusive right of a creator to own his product himself or right to the ownership of his production himself without any form of infringement (a right to copy). It protects the rights to ownership of an original work by the author. A mere idea or knowledge that has not been produced will not be rendered copyrighted, as this is still raw and is not registered. In India, unlike some other countries, copyright is usually granted automatically but it is considered important to register one’s copyright regardless of the automatic protection by the government, this is strictly to have proof of the registration. Also, for the use of the copyright act to be effective, when entrepreneurs, companies, and creators, register based on originality and fixation, i.e. they must be independently produced by humans as an original work, who also has a minimal degree of creativity. There are varieties of creations or productions that can be protected by the copyright act, to abstain from any form of infringement, they are,

Literary Works; which include novels, stories, poetic, audiovisual works, scenarios and board-casting scripts, and computer programs.

Artistic Work: This includes Paintings, maps, photographs, architectural models, and prints.

Sound Recording; which includes Music recordings, Voice Over recordings, audio recordings, podcasts, etc.

Audiovisual Works; include Films, multimedia content skits, etc.

Musical Works; which mostly consist of music compositions Broadcast. , etc.

These productions can be protected by the copyright act giving no room for unauthorized access to the copyrighted works. This also allows the original owners of the work to easily generate revenue, through the creation of the works for public benefits and not for some sort of indoor use. There are basic requirements for registering copyrights, which include,

1. Filing an application for Registration in the authorized office

2. Submission of a copy of the original work to ensure the originality of the work

3. The need for a No Objection Certificate, if it is applicable

4. Registration.

These processes are legally required in India, and creators who register their copyright ( protection ) use and enjoy the protection for a lifetime, the provision of the law enables them to enjoy ownership rights for sixty years after their death (the author).

The copyright act has continued to be a shield rather than a sword. Unfortunately, the level of infringement remains inevitable, and the level of piracy persists. According to the Black’s Law Dictionary, infringement is the trespass invasion, or violation of a law, regulation, or right. In simple terms, copyright infringement is the invasion of an author's right. The issue of copyright infringement arises in the case of Hawkins v Magicook Appliances. [3] In this case, the plaintiff sued the defendant for unauthorized use of the label on his known pressure cooker line. The court held in favor of Hawkins cooker and also prohibited the defendant (Magick) from using the same label. The silkiest case is also the case of YRF v Sri Asai Ganesh Productions.[4]

PATENT

This is an exclusive right granted to a creator, company, or entrepreneur to exclude other companies from making, using, or selling anything like their productions for a limited period as granted by the government. The word patent is derived from the Latin word pater, which means "to lay open". The enforcement of the Patent Act was in India in the year 1972, which was during the post-independence era, it was named the Patent Act 1970, which was later implemented in 1972. This legislation was further amended in the years 1999, 2002, and 2005 respectively. Recently, various amendments have been made to the patent act, from the years 2016, and 2017. The Patent Act amendment (2016) focuses on displaying grant processes, startup benefits, and increases in official fees. The rate of business owners filing for patents has increased with over 138,000(filed between 2015 and 2021), with more than 85,000 filed patents in emerging technologies. The registration of a patent is legally accepted in India under the provision of the Patent Act 1970,[5] This provides that the two patents will be granted if it is not refused by the controller general and if it is not in contravention of the provision of the patent act. Hence the the provision for the registration of patents varies from one country to another, because it is territorial. It is imperative to know that there are limits to what a patent protects, for example, the commercial processes of the company, agricultural methods, computer programs, etc. cannot be registered for a patent (they are not patentable) in India this is to prevent any for or fears in the process exercising either traditional or nontraditional methods. The importance of patents like every other intellectual property right, remains a guard against infringement even though the issue of infringement has become difficult to handle through the invention of technology, hence business owners still hold on to the use of patents which is legally backed up. The case of Novartis v Union of India explains more about the issue of infringement and how the law has been able to tackle it. In this case, the Supreme Court used the provision of section 3(d) of the Patent Act, which doesn’t allow registration of patents for inventions that are mere ‘ new forms ‘. Also in a similar case of Merck v Glenmark.[6]

CONCLUSION

Intellectual property for business has continued to play the biggest role in protecting business owners who see the need to protect their business, hence it mustn’t be against the law of the jurisdiction because intellectual property laws are territorial. , i.e. the crucial role of safeguarding businesses within the legal boundaries of different countries due to the territorial nature of intellectual property laws. This underscores the importance of businesses understanding and adhering to diverse legal frameworks to ensure the effective protection of their intellectual property rights.

REFERENCES

[1] World Intellectual Property Organization (WIPO)

[2] (com. No 8464/2018)

[3] (LAWS(DLH) -9-218)

[4] (AIR 2019: DEL 1017)

[5] Chapter VII, Section 41

[6] (2015) SCC Online Del 8227, also see the case of Novartis and Union of India