Choosing the Right Intellectual Property Protection

Intellectual Property Rights (IPR) are like different keys for different locks. Just like every lock has its matching key, each type of IP serves a specific purpose. With so many IPs available – trademarks, patents, copyrights, and more – how can you choose the right one for your work, product, or business? For that, first let us understand what are IP and IPR.

Intellectual Property refers to any intangible asset or property originated from the human intellect. All the creations of the human minds such as designs, inventions, artistic works, names, symbols, etc. are intellectual properties owned by individuals and/or businesses.

Intellectual Property Rights are the bundle of rights given to the owner or creator of IP by the virtue of law that governs that specific IP. These rights include exclusive ownership benefits and rights against any misuse, alteration, modification etc. of their work for a fixed period.

Understanding Different Types of Intellectual Property

• Trademarks

A trademark is like a unique identity for a brand—it can be a name, logo, slogan, label, packaging, shape, a mix of colours, or even a combination of any of them—that makes a product or service stand out in the market. For instance, we instantly know  (a bitten apple) represents the tech giant, Apple Inc. or  (a golden arch) means McDonald’s. Trademarks are governed by the Trade Marks Act, 1999 in India.

Key Features:

• Registration of trademark is mandatory for protection against infringement, but not against passing off.
• Protection is granted for every 10 years and is renewable for indefinite number of times.
• It helps in building brand identity, goodwill and consumer trust.
• Copyright

Copyright refers to the exclusive rights granted to the authors or performers for their original work or performance like book, film, paintings, compute programmes, etc. These include right to reproduce, display, modify, distribute, or sell their copyrighted works. For example, if you write a novel, copyright protects it from being copied or sold by others without your permission. These are governed by the Copyright Act, 1957.

Key Features:

• The work must be original. Also, copyright does not protect ideas, but only its expression.
• Automatic protection upon creation. Registration is not mandatory, but recommended.
• In India, protection is granted for the life time of the author + 60 years.
• Patents

Patent protects new inventions that features technological advancements or economic significance or both and are capable of being used in the industry. It grants exclusive rights to the inventors and prevents others from selling, using or making it without their permission. For example, the Tata Nano’s rear-engine design and lightweight body structure is patented by Tata Motors. It is governed by the Patent Act, 1970.

Key Features:

• The invention must be new, non-obvious, and have utility.
• Registration of patent is mandatory.
• Protection is granted for 20 years from the date of filing of the application.
• Industrial Designs/Designs

Industrial design provides protection to the aesthetics i.e., the visuals including shape, pattern, colour composition, etc. of any article (either 2D or 3D form). It does not matter if the design is created by any manual, mechanical, chemical process, or combination of any of these industrial processes. For example, the shape of Coco-Cola bottle is registered as an industrial design.

Key Features:

• Registration of design is mandatory under the Designs Act, 2000.
• Protection is granted to aesthetics only, and not to functionality of design.
• Designs when registered are given copyright protection for 10 years with an extension period of 5 years.
• Geographical Indication (GI)

GI protects the product that have a specific geographical origin and because of that it possesses special qualities or reputation. GI is granted to an association of persons or producers; any organization; or an established authority. Darjeeling Tea and Kashmiri Pashmina are famous GI tags examples.

Key Features:

• Registration of GI is mandatory under Geographical Indications of Goods (Recognition and Protection) Act, 1999.
• Protection is granted for every 10 years and can be renewed indefinitely.
• It prevents misuse of authentic regional products by unauthorized producers.
• Plant variety

Plant Variety protection (PVP) provides exclusive rights to the breeders (person, farmer, group of them, any institution) who have developed a plant variety that is new, distinct, uniform, and stable. For example, a new high-yield wheat variety developed by farmers can be protected.

Key Features:

• Registration of PV is mandatory under the Protection of Plant Varieties and Farmers Rights Act, 2001.
• Certificate of registration is granted for 9 years and can be renewed for a total time (including 9 years) of 15 -18 years depending on the plant variety.
• Semiconductor Integrated Circuits Layout-Design

It protects the original and distinctive Semiconductor integrated circuits layout-design, which refers to the unique arrangement of tiny electronic components and circuits in a semiconductor chip. It ensures that creators of new chip designs retain exclusive rights.

Key Features:

• Registration is mandatory under the Semiconductor Integrated Circuits Layout-Design Act, 2000 for protection against infringement.
• Protection is granted for only 10 years.
• Trade Secrets

Trade secret is the information that is confidential, commercially valuable, known to limited persons and is actively kept secret from the public, and which may be sold or licensed. Examples include the Coca-Cola recipe, Google Search algorithm, etc.

It is not protected under a dedicated statute, but it can be protected through confidentiality agreements or clauses under Contract Act, 1872; Bharatiya Nyaya Sanhita (BNS), 2023 (Sections 316, 318, and 303); IT Act, 2000 (Sections 66, 72, 72A); and common law.

How to Choose the Right IPR for Your Work?

It is crucial to pick the right protection for your IP and it depends on the nature of your creation or works and business goals. Follow these steps to determine the same:

1. Identify What You Want to Protect

The first step in choosing the right IP is identifying the nature of your work/business/product/service that you want to protect. You can choose the appropriate protection for your work by referring to the above discussed explanations of different types of intellectual properties and selecting the one that best matches with your work.

2. Consider Your Business Goals

The second step involves finding out your purpose or goals regarding the work. Whether you want to monetize an invention (Patent), stop others from benefitting from your goodwill (Trademark), protect your creative works (Copyright) and so forth.

3. Compare the Costs and Efforts Involved

Other important factors include costs and efforts involved in each of the process of registration of IP. The following table will help you understand:

S. No.	IP	Time to Register*	Cost of E-filing*
1	Trademark	12 – 36 months	₹4500 – ₹9000 for each class
2	Copyright	3 – 12 months	Literary, Dramatic, Musical or Artistic Work:  ₹500 – ₹2000/ per work (pw) Cinematograph Film: ₹5000/ pw Sound Recording: ₹2000/pw
3	Patent	1 – 4 years	₹1600 – ₹8000 for up to 30 pages, 10 claims and single priority
4	Industrial Design	3 – 12 months	₹1000 – ₹4000
5	GI	12 – 24 months	₹5000
6	Plant Variety	1 – 3 years	Upto ₹50,000 for conducting tests
7	Semiconductor Layout Design	3 – 12 months	₹5000

Time to register*: It represents the average timeline to register an IP considering the examination period, waiting period, objection/opposition period if any, general delay, etc.

Cost of E-filing*: It only represents the e-filing fee of each application in regards to a single entry and does not include any additional fee of different stages of registration or attorney fee.

In a nutshell, choosing the right Intellectual Property protection is fundamental to safeguard your work, maintain exclusivity, and prevent distressing legal disputes. Hence, by understanding the different types of IPR, you can make informed decisions about protecting your brand, invention, or creative work. Lastly, if you are still unsure about which protection suits your needs best, consulting an IP attorney can help ensure you are on the right path. Always remember, your ideas are valuable and protecting them is an investment in your future success.

Author: Manvi Jain, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD. 

References

• https://www.wipo.int/about-ip/en/
• https://ipindia.gov.in/
• https://legalvidhiya.com/safeguarding-the-unseen-the-legal-framework-for-trade-secrets-in-india/#_ftn12
• https://docs.manupatra.in/newsline/articles/Upload/41C26FED-7AFE-40EA-8736-4E6C516917AE.pdf