Copyright v. Patent v. Trademark

With the advancement of Information Technology and migration of Intellectual Property on the Internet, the need for Intellectual Property Law has arisen. Intellectual property protection is critical to fostering innovation because without protecting ideas, businesses and individuals would not realize the full benefits of their invention and then they would focus on less research and development.

Hence, Intellectual property (IP) rights are those rights that are awarded to individuals or organizations principally over creative works like innovations, literary, artistic works, symbols, images, designs, etc. This gives the creator a right to prevent others from unauthorized using their property for a limited period.

The protection of the intellectual property is based on the following basic premises:

The innovation and creation of intellectual property can be increased by providing appropriate incentives to society;
If such incentives are not provided, the level and degree of innovation will suffer;
The economic reward is an appropriate incentive for the creation of intellectual property and can only be ensured the grant of exclusive rights for a limited period; and
The economic reward for innovators is in the interest of entrepreneurs and society in general and therefore promotes economic growth.

The objects of Intellectual Property are the creations of the human mind, the human intellect. That is why this kind of property is called “intellectual” property. Simply, one can state that intellectual property relates to pieces of information, which can be incorporated into intangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but the information reflected in those copies.

Table of Contents

Various countries in the world have classified IPR into two types. They are:

Copyright
Industrial Property

Trademarks, Patents, Industrial Designs, Trade Secrets, Layout designs are categorized under Industrial Property. However, today Geographical Indications, Plant Varieties and Farmers’ Rights, Biodiversity, and Traditional Knowledge are treated as emerging forms of Intellectual Property Rights. The main types of Intellectual Property Rights are explained in the following Figure:

In this blog, I will discuss only three types of Intellectual property rights i.e. Copyright, Patent, and Trademark.

Copyrights

Only human beings are capable of creativity. They can be authors, composers, artists, and designers for creating their original works. It is they alone, who will be entitled to enjoy the exclusive rights to do or authorize others to do certain acts about:

Literary, dramatic, musical, and artistic works
Cinematograph film
Sound recordings

The basic areas covered under copyright protection are in the field of printing, music, communication, entertainment, and computer industries. Hence, copyright law i.e. The Copyright Act, 1957 provide for the protection of the following types of work:

Literary works, short stories, novels, poems, and other writings, irrespective of their content (fiction or non-fiction), length, purpose (education, information, advertisement, propaganda, etc), form (handwritten, typed, printed; book, pamphlet, single sheets, newspaper, magazines); whether published or unpublished.
Music works, whether serious or light songs, choruses, operas if for instruction, whether for one instrument (solos), a few instruments (sonatas, chamber music, etc), or many (bands, orchestras).
Artistic works: whether two-dimensional (drawings, painting, lithographs, etc.) or three-dimensional (sculptures, architectural works), irrespective of content (representational or abstract) and destination (pure art for advertisement, etc).
Maps and technical drawings.
Photographic works; irrespective of the subject matter (portraits, landscapes, current events, etc.) and the purpose for which made.
Motion pictures (“cinematographic works”) whether silent or with a soundtrack, and irrespective of their purpose (theatrical exhibition, television broadcasting, etc), their genre (film dramas, documentaries, newsreels, etc), length, the method employed (film “live”, cartoons, etc), or technical process used (pictures on transparent film, videotapes, DVDs, etc).
Dramatic works, such as plays.
Choreographic works (such as ballet, be it classical or modem) and entertainments in dumb shows.
Computer programs.
It also protects ‘work of applied art’ (artistic jewelry, lamps, wallpaper, furniture, etc). Some regard phonograph records, tapes, and broadcasts also as works. However, the latter are generally protected under the category of related rights.

Patent

A patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to manufacture the new article invented or manufacture an article according to the invented process for a limited period.

After the expiry of the duration of the patent, anybody can make use of the invention. The concept of patent and its essential ingredients like novelty, inventive step, lack of obviousness, and sufficiency of description has remained the same ever it was conceived over four hundred years ago.

The Patent Act 1970 recognizes the exclusive right of a patentee to gain commercial advantage out of his invention. This is to encourage the inventors to invest their creative faculties, knowing that their inventions would be protected by law and no one else would be able to copy their inventions for a certain period during which the respective inventor would have exclusive rights.

The purpose of a patent is to afford protection to the inventor for the invention over a limited period in exchange for the disclosure of all the necessary knowledge to ensure its commercial working. It provides an exclusive right to the inventor for exploiting the invention and affords protection against unauthorized use of the invention by third parties.

The main objective of national patent legislation is to accelerate the technological and industrial development of the country.

Trademarks

A ‘trademark’ means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colors. ‘Mark’ includes a device, brand, heading, label, ticket, name, signature, word, letter, numerical, shape of goods, packaging, or combination of colors or any combination thereof.

This meaning and definition are not exhaustive and the definition is such that there is practically no limit to the combination of various types of marks.

A trademark is a symbol that is applied or attached to goods offered for sale in the market, to distinguish them from similar goods and to identify them with a particular trader or with his successor as the owner of a particular business, as being made, worked upon, imported, selected, certified or sold by him or them or, which has been properly registered under the Acts as the trademark of a particular trader. It is a symbol consisting in general of a picture, label, word, or words, which is applied or attached to a traders’ goods.

The following features can be deduced from various judicial decisions about the nature and essential features of Trademarks under the Trademarks Act 1999:

Trademark is a kind of property and is entitled to protection under the law, irrespective of its value in money so long as it has some business or commercial value. Not merely the interest of the public but also the interest of the owner is the subject concern of trademark legislation.
The very definition of trademark includes “mark” and the very definition of mark includes the ‘name’. As such the term trademark must be considered to be a comprehensive term including within itself ‘trade name’ under which articles, goods, etc are sold.
The essential feature of a trademark is one by which an average person with imperfect recollection remembers it rather by general impression or by some significant detail than by any photographic recollection of the whole in visual details.
Nobody has any exclusive right or ownership in any mark alone unless that mark is associated by use with a particular description on species of goods imported or manufactured by him. In such a case, the person concerned becomes the owner of that trademark but only about that description of species of goods.
A trademark is generally transmitted in connection with the goodwill of a business. Therefore, the law does not recognize the transfer of trademark, separate from goodwill or the business. For securing the proprietary rights in a trademark, the purchase of the business to which the goods are concerned is necessary.
A trademark comprises both registered and unregistered trademarks. By registering a trademark, a person gets title to the mark established and it enables him also to avoid proving his title against any infringement of the mark. But in the case of an unregistered trademark, the only way in which the owner can protect his title using the action of passing off is not only to prove his title by prior use but also by abundant evidence that the mark is distinctive of the goods about which he has used it.
A trademark may be registered in respect of any or all of the goods comprised in a prescribed class of goods. A trademark may be limited wholly or in part to one or more specified colors.
A trademark would be considered a good trademark when it is distinctive. In the case of Imperial Tobacco vs. Registrar, Trade Marks the word distinctiveness was held to be some quality in the trademark which earmarked the goods marked as distinct from those of other products or such goods.

A trademark serves the purpose of identifying the source of origin of goods. Trademark performs the following four functions:

It identifies the product and its origin. For example, the trademark ‘Brooke Bond’ identifies tea originating from the company manufacturing tea and marketing it under that mark.
It guarantees its quality. The quality of tea sold in the packs marked Brooke Bond Tea would be similar but different from tea labeled with mark Taj Mahal.
It advertises the product. The trademark represents the product. The trademark ‘Sony’ is associated with electronic items. The term SONY rings bells of a particular quality of a particular class of goods. It thus advertises the product while distinguishing it from the products of Sony’s competitors.
It creates an image of the product in the minds of the public, particularly consumers or the prospective consumers of such goods. The mark ‘M’ which stands for the food items originating from the American fast-food chain McDonald’s creates an image and reputation for food items offered by it for sale in the market.

The distinction between Copyright v. Patent v. Trademark

CATEGORIES	COPYRIGHT	PATENT	TRADEMARK
Governed Under	The Copyright Act, 1957	The Patents Act, 1970	Trade Marks Act, 1999
Types of Protection & Works	Protection of original creative expressions like literary works, artistic works, dramatic works, etc.	Protection of inventions that are novel, original, and have industrial utility.	Protection of a unique name that makes a brand distinct from others. Can include name, slogans, logo, shape, color, etc.
Validity and Reach	Valid for a lifetime of the author for more than 60 years after his/her death.This Protection is available in most of the countries in the world.	Validity for 20 years starting from the day the application is first made. It is also a territorial right and therefore it is effective only within the territory of India. Separate patents are required to be filed for each country where protection is required.	Validity for 10 years can be made perpetual by renewing the trademark every 10 years. Territorial in nature to claim rights should be applied to each country individually.
Secures	Copyright secures Creative or intellectual creations.	A patent secures inventions that are useful for the world and has some use.E.g. New inventions in the pharmaceutical industry.	Trademarks secure the branding under which products and services are sold.
Right comes into Existence	Exclusive rights over the copyright are created the moment the authorship creates the work.	Patent registration takes about 2-3 years in all. But the owner can stop anyone else from claiming right over a particular patent the moment he applies for provisional patent.	Once the trademark gets registered the applicant of the mark can claim complete right over the said mark. Registration usually takes 12-18 months.
Provisional Application Requirement	No provisional application required.	A provisional application gets you 12 months of time to file a complete specification, and a priority date claim.	Trademark registration does not include provisional application, but it requires a trademark search.
Symbolic Representation	No symbolic representation to show registration.	No symbolic representation to show registration.	Used when registration is in process: ™Used when registration is complete: ®

Conclusion

Unquestionably, knowledge has been recognized as a potent force in the present society. Intellectual Property (IP) is increasingly recognized as an important commercial asset throughout the globe. And it is a driving force in the technological progress and socio-economic development of the country.

The emergence of a strong intellectual property regime and its global impact has opened endless avenues for creating wealth, i.e., physical property. Intellectual property seeks to create a broad-based sustainable improvement in the quality of life and standard of living. Strong Intellectual Property Rights provide the accurate climate for stimulating creativity, innovation, investment, and commercial activity.