March 2009: The intellectual property consists of a bundle of rights and each one of them has distinctive features as defined under different IP laws. The common binding force for a harmonious construction and for uniformity in application is brought about by TRIPs agreement which is part of WTO laws. Trade mark and GI mark bring distinctiveness to the trade name or the product name either by a logo or colour or sound or sign, the GI mark represent the geographical distinctive quality of a product. A product can bear both the trade mark as well as a GI mark. While a trade mark belongs to an individual or a corporate the GI mark belong to a community or an association and is allowed to be used by all the members trade relationship with that product. A company or a business enterprise can have the trade mark registration for its different products and services for one or for different class of goods and for domain names. However a brand is something different than a trade mark. While a trade mark is an IPR, the brand is an intellectual property with commercial value which is much wider in its scope including goodwill built up on the basis of standards and quality of the product as well of the organisation developed over a period of years. A trademark can have global application under Madrid protocol. However there is no global recognition of a trade mark and it has to be registered in each individual countries except in cases of some regional co operation.

The patent and design rights are a little different than the trade mark and geographical indications as they relate to invention or technology and the shape or design of a product. The distinctive requirement for registration for both of them is that the first disclosure has to be to the Patent and Design offices of the respective national offices. USPTO allows different kinds of patents being design patent or utility patent but in India a patent is only with respect to an invention which has an industrial application. In India one can have a copy right for a computer program unless it forms part of the hardware whereas in USPTO, one can have patent for software as well as for a business method. A patent can be granted for a new product as well as for a new process. An invention can be for a technical innovation or something of economic significance and can be patented if it satisfies the other two conditions of novelty and commercial or industrial applications. There is patent co-operation treaty (peT) convention for international filing of a patent and Hague convention for international filing of a design application. Similar to trade mark, there is no global patenting or a global registration for a design. The conventions are for facilitations for priority claims and not for granting global registrations except for the regional co-operations.

A copy right on the other hand consists of various rights of an individual with respect to art, music, songs, play or dramatic performance or a literary work. The copy rights are generally valid all over the world and no registration is necessary though it can be registered. The copy rights are governed by Berne convention while other industrial nature of IPs being patent, design and trademarks are governed by Paris convention. A single product can have all or some of the IPs such as patent for the invention, design for the outer shape, and trade mark for the logo or the trade name and copy rights for the art or the literature relating to the product. In case of an electronic device it can also have the integrated circuit and the layout design.

It is very important to obtain protection of all different kinds of IPRs from being copied or counterfeited by others. The strength of business competitiveness depends on the level of protection for the intellectual property of an organisation. The IPRs can be traded and transferred just like any other kind of tangible property and one can gain by selling or licensing the IPRs. The implications of stamp duty, VAT, service tax, customs, excise and income tax are equally applicable for the transfer of an intellectual property rights and hence proper accounting and valuation of IPR is also essential. Similar to the maintenance requirement of a tangible property an IPR has to be properly maintained by timely renewals as required under law and has to be managed to realise full commercial value. Thus the distinction between a tangible property and an intangible property is limited and proper attention has to be adhered to in all transactions involving mergers, acquisitions, transfer pricing, due diligence while dealing with an intellectual property. Thus IPR which is in the form of bundle of rights involve bundles of obligations and ITAG provides solution for both the rights and obligations in relation to all different kinds of IPRs.

--Dr. D. R. Agarwal