INTELLECTUAL PROPERTY
RIGHTS
01.08.2025
Intelligible property which is intellectually (creation of mind)
created.
Invention : Usage of Intellect to invent.
Difference between Intelligible (cannot be percieved by senses)
and tangible (can be percieved by Senses) property :
• Discovery on which intellect is applied is an invention
• Excludabiltiy : tangible property can be clearly excludable
while Intelligible property cannot be excluded.
• Nature of Consumption: Tangible property is Rival in
consumption( cannot be exercised or consumed by others)
while intengible property is non rival that means the
consumtion of the property can be by others too.
Taboo is the first form of protection of the intelligible property
so intellectualy created
Problems with tengible property be in Public:
• Overconsumption
• Tragaedy of Commons
Making intelligble property to be Public Good will result in :
No over consumption but due to this there will be under
production, if there is no incentive to the creator or inventor to
create or invest in creation of the intelligible good.
KIND OF IPRs:
Invention: technical Solution to technical problem. It refers to
industrial utility.
painting is not an invention it is a expression.
If design is changed there is no change in functionality of the
product.
Trademark : is not functional and it for know the source. It can
be any identifier to the know where it comes from.
02.08.2025
Types of IPR :
1. industrial Property
2. Expression and enabling Rights
3. Reputation & Goodwill
INDUSTRIAL PROPERTY :
Patents: It can be Process, Product, Product by a process
• Not being used previously
• not obvious
• Useful
Industrial Product:
• if a product which can be manufactured in an industry or any
thing which can be used to manufacture.
what inventions are not patentable u/s 3 of the Patents Act.
The reason is Public Policy.
Design: Asthetic feature applied on any product. it goes with
any article not alone. Design embodied to any article makes it
proptectable under this right. it gives a competitive edge over
other products.
It must be new ( no pre-existence). Original to the Design, not
to be copied and has to be new and different from pre existing.
If it is of techinical nature is to be excluded.
If any particular Design affects the functionality of the product,
then can be producted.
Trade Secret: every secret cannot quallify as a trade secret.
Any secret which has some relevance with the trade. Any
information which is impactful to the Trade. Confidentiality
Topography: Layout is the Topography, which will be the
pattern of circuit. Its not visual appeal but the product from
inside. It is of technical usage.
EXPRESSIONS:
COPYRIGHT: Concerns only to the Expression of the Author.
Facts cannot be copyrighted as not original to the Author.
Expression original to the Auhtor is copyrightable.
06.08.2025
Labour (Locke) :
• A person is entitled to the fruits of its Labour. The right must
be granted as to any thing so produced by intellectual labour,
and certain price is paid. They are naturally entitled to the
fruits for the labour.
• Enough and as good to be left for others.
• Copyright law protects the expression and not the idea of the
Expression. Idea are to important and must not be protected.
By this “idea” can be used by others to create its own original
expression.
• Patent is granted to the invention so created by intellectual
labour of the person which is so inventedfor some utility .
• Natural Law school Philosipher, Laws which are fundamental
and natural as it doesnt require codification.
Personhood (Hagel)
• it is an extention of the personality of the person so,
inventing, creating or making. As the person will have right
over its personality and its is diffirent for every one.
PATENT : open , in public, Prima facie.
SOCIAL ECONOMIC THEORY : Public justification theory.
There must be some economic consideration. Thru. regulation,
we are incentivising the person so using the intellectual labour.
These laws give power to exclude and transit. If there is no
incentivisation then there will be situation of under -
production, as there will not be any incentive for the inventor
or created. But there must be something in the law where the
society and people at large also have some incentive. As the
laws so created are like a contract or agreement between
CLAIMANT and SOCIETY , which is mediated by state. The State
have to maintain the incentives for both the parties at the
same time.
For Example: A medicine so created also includes the cost of R
& D, just copying it and selling it in public, will affects the
incentive of the person so creating such medicine. It will
ultimately lead to under- production.
TRADEMARKS ACT
2(m): it is an inclusive defination. Mark of distinctive character.
Trademarks are source Identifier, inform the consumer, the
source or the place from where the product is coming.
EXAMPLE: if there is no trademark, then it is difficult for the
consumer to identify the product. If there doesn’t exist any
trademark. Then to find the desirable product, possible ways
are to buy multiple products, then have to be researched
upon , and find the product so desirable.
REPUTATION : Knowledge of existence of the Mark among the
consumer is the REPUTE (the image the Consumer have in
regards to the Product) . It can be good or bad.
GOODWILL : Economic consequence of the sale of the product.
07.08.2025
If there is no trade mark . then the proprietier have to have
these three possible situation:
• Loss of investment:
• Dilution: the ability of the mark to create a distinctiveness of
the Mark from the other mark. resluting is harm to the mark.
• Harm to the image of the Mark: The trademark is used in
relation to something detrimental. The Repute of the mark
will be tarnished.
Tradmarks are of two type :
Traditional: which are perceiviable by the eyes.
Non traditional: Which are though not perceiable by the eyes,
but an be percieved by other senses. Cannot be graphically
represented. For Example :
5 kind of Marks:
1. Generic Mark: name of the good or the service itself. Are
deviod of distinctiveness.
2. Descriptive Marks: when the mark are of such nature that
the mark is descriptive in nature as to what the good is.
Primany Meaning of the Mark is source indicator or
originator. and Secondary meaning is for example place
mentioned in Tradmark which with time if losses the
understanding as to the mark.
3. Suggestive Mark: imagination and degree of thought upon
the product eg. Copper 10
4. Arbitrary Trademark: where in the mark has no relation with
the goods and service. they are highly distinctive. Scope of
other competitors.
Genericide : the trademark for goods and services in general.
example : Aspirin , thermus, Escalator. these start becoming
the product from the source of origin.
Secondary Meaning:
ZATARIN INC v OAK GROVE SMOKE HOUSE & ORS., 1983
zatarin have two trademarks: FISH FRI (registered in) and
CHICK FRI.
Three concept :
1. Visual
5. Aural
6. Conceptual
there is favoured Assoication between.
Inventions are unconventional thing.
Trademarks are about convention. they create convention in
the mind of the people.
TEST for Descriptive trademark:
1. Dictionary test
7. Imagination test: it is not the question of the amount of
imagination. From an objective view point , as how an
average person will percieve it to be.
8. Do the comptitor have interest on using it or reason to use
it.
9. Is there any actual evidence, they were using it.
