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ON INDIAN PROSPECTIVE
Global nature of I.P.R.
Intellectual property which is most valuable asset of humanity. Therefore it is a natural right & falling into the category of international laws. Therefore the scope of I.P.R. protection is broader in a global sense. The advances of technology and globalisation is also fuelling off the global characteristics and enforceability of I.P.R. regime.
TRADEMARK
(The Trade Marks Act, 1999 (The Trade Marks Rules, 2002)
No court inferior to that of a Metropolitan Magistrate or a District Magistrate shall try any offence under this Act.
CRIMINAL REMEDIES:
Section 482, IPC: Punishment for using false property mark.
Section 483, IPC: Punishment for counterfeiting a property mark used by another. Section 484, IPC: Punishment for counterfeiting a mark used by a Public Servant. Section 485, IPC: Punishment for making or possession of any instrument for counterfeiting a property mark. Section 486, IPC: Punishment for selling goods marked with a counterfeit property mark. Section 487, IPC: Punishment for making a false mark upon any receptacle containing goods. Section 488, IPC: Punishment for making use of any such false mark. Section 489, IPC: Punishment for tampering with property mark with intent to cause injury.
Definition
Copyright is the right to copy or reproduce the work in which copyright subsists. It is an exclusive right to do or authorise to do or others to do certain acts in relation to Literary, dramatic, musical & artistic works. Cinematography film. Sound Recording. Copyright law normally does not protect useful articles, it does protect aesthetic elements of an useful article.
Definition
Design means the features of-shape -configuration -pattern -composition of lines or colours, whether in two dimensional or three dimensional or in both forms by any industrial process but does not include a mere mechanical device. Note: A design in order to be registrable must be NEW or ORIGINAL & previously NOT published in India or abroad. A design cannot be SCANDALOUS or OBSCENE, or it cannot be registered.
The right conferred by such registration is called a Copyright in Design. Though the nature is different from Copyright Act, yet in case of infringement, provisions of Copyright Act would come in force.
Definition
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 an article according to the invented process for a limited period. The object of granting a patent is to encourage and develop new technology and industry.
A Suit for an Account of Profits: In which the applicant can file an application praying the court for the account of profits accrued from such infringement. Injunction: Inter-Locutory Injunction: The court orders to sell any property or authorise to enter upon any property for taking sample for obtaining full information. A Suit for Delivery-up of the infringing articles.
Infringement of Copyright. A is the holder of the copyright of his musical composition. A alleges that B has infringed the copyright by using a portion of the musical composition 4-5 times in Bs work. Accordingly expert was appointed by the court to examine if the alleged infringement is valid or not. Experts opinion was that the musical work of B was a copy of the musical work by A. Thus, it gives rise to cause of action in damages and relief of injunction. Hence, A is entitled to injunction restraining B from infringing his copyright in musical composition.
Infringement of Copyright not valid. ABC a Picture Distribution Company alleges XYZ, a Production House of infringing the copyright of stories, screenplay, and dialogues in Hindi remake of a Tamil Film. ABC in his statement mentions that XYZ by receiving consideration of Rs. 9lacs assigned to him copyright in story, screenplay & dialogues of the said film. ABC produced the agreement between the parties but it was seen that the signature of the defendant on the alleged agreement of assignment was materially different from his admitted signature. Moreover, no book of accounts was produced to prove alleged payment of Rs.9lacs in cash to XYZ by ABC. ABC even failed to produce the prima facie execution of agreement. The suit was an attempt to extract some money from XYZ by trying to secure an order of injunction. It was held that the plaintiff ABC was not entitled to Injunction.
Conclusion
The scope of IPR Enforcement is becoming much more wider & relevant with global context of international IPR regime, as set by the rules of international treaties & conventions & guidelines provided by mechanism body of WTO & WIPO. It is also observable that the implementation, as far IPR Rules & other colonial Acts of India, is needed to be much more sharpened in case of any kind of infringement and counterfeiting. Therefore need of competent IPR Attorneys is growing day by day.
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