Protection of Intellectual Property Rights

PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

1. Protecting intellectual property

IP in India is a term that refers to brand, invention, design, and any other kind of creation over which the person or the business has legal rights. Almost all businesses own some form of intellectual property that can be considered a business asset. When something new and innovative is created, the inventor has the right to protect it. Inventors can register their creations as intellectual properties by filing for an IP that enables them to avail sole monopoly over their creations. Traditionally, IP is categorised as industrial property and copyright, wherein the former is used in the context of patents, industrial designs and trademarks, and the latter is used in the context of protecting literary creations, artistic works, musical works etc. As such, the right to protect IP entails the exclusive rights provided to the innovator or creator. IP rights denote the legal rights provided to the creator and not the IP itself. It is necessary to understand the meaning of IP rights and be aware of the steps taken to protect them.

The Intellectual Property Rights (IPRs) in India mainly include encompassing trademarks, copyrights, patents, trade secrets and design, etc. Each category of intellectual property covers a different group of properties and work. It is necessary to choose the right category to safeguard the work and the business property. 

2. Why is it important to register intellectual property?

While talking about protecting IPRs, it is first necessary to understand the importance of registration. When an individual or an organisation develops a new product, which involves a lot of processes, content, resources etc., a lot of time and money is invested. It is natural for the inventor or organization to have the expectation of being able to own exclusive rights over the invention while excluding others from benefiting from it. This exclusivity is provided through IP systems and IP laws. Although it is not mandatory to register an IP or trademark, it provides the inventor certain advantages including the prima facie ownership proof that enables the owner to enforce IPR in a court of law, if deemed necessary. There are several dangers if IPRs are not protected. For instance, not protecting IP can result in getting benefits from the unprotected invention in an unauthorized manner to anyone.

There is no law that can stop one from duplicating and seeking financial benefits from someone else’s innovation if IP is not filed. Furthermore, it falls upon the owner to prove the ownership of the IP in a court of law if the IP is unregistered. If a trademark remains unprotected, the court cannot help the inventor, as it is not possible to claim ownership and/ or sue for infringement.

3. Need to protect IP

It is essential to protect IPRs. Firstly, inventors get exclusive control to use their IP to their benefit – both in terms of usage as well as financial benefits. The inventor can decide the price of the invention, the marketing and distribution channels and countless ways to turn a profit and earn a high return on investment. Secondly, filing for IP allows the inventor to prohibit others from making financial benefits. Thirdly, if a competitor violates the IP laws that protect the inventors, the inventor can exercise the right to file a court case against the party attempting to benefit from the invention. If found guilty, the court may award a financial reward to the inventor, to be paid by an individual or entity attempting to gain financial benefits from the invention attributed to the owner of the IP. As such, IP rights are essential because they provide inventors the incentive to keep innovating and benefitting from their inventions. Protecting IP is a complicated process that involves IP registration, followed by a long process of verifying the authenticity of the creation. 

The process – from registering IP to granting the patent, trademark, copyright or utility design involves a lot of research on the part of the individual or entity granting the IP. The entity granting the IP is required to ensure that the creation is original, authentic and not lifted from another innovation. It involves publishing the new creations in IP journals to fact-check any other individual or entity claiming IP rights against the same or similar creations. The entire process – from registering to acquiring IP rights – can take anywhere between a few months to many years and includes various rounds of corrections on the part of the inventor. 

4. How to protect your intellectual property?

Protecting your intellectual property is a means to secure an economic advantage for your business and make sure you can defend your unique ideas, products, and services. The best way to protect IP is to register it with the government and enforce your ownership rights.

Beyond registration and enforcement, you can protect certain types of intellectual property by:

1. Documenting your discoveries
2. Using digital rights management
3. Opting for strong nondisclosure agreements
4. Creating strong access credentials
5. Read on for more on these tips to proactively protect intellectual property before it’s stolen or repurposed.

1. Document your discoveries

In the Information Age, leaks are frequent. While you can’t always guard against them, you can record your discoveries and innovations as they occur. If another company obtains illicit information in a leak and attempts to repurpose or recreate your ideas, your records can put a date to your operations and prove your legitimacy (and your ownership rights) over your intellectual property.

2. Use digital rights management (DRM) systems

If your work is published online and accessible to users, some of those users may attempt to copy your property. Digital rights management (DRM) protects your online assets with coding that does any, or multiple, of the following:

• Limits the number of times or the window of time a user can access your work
• Restricts the number of devices your work can be accessed with
• Prevents users from editing, saving, or copying your work
• Prohibits sharing, printing, or taking a screenshot of your work
• Watermarks your work to establish ownership

DRM is a type of encryption that limits what a user can do with your protected work. This option is a common choice for gated online content like:

• Data studies and surveys
• Market reports
• E-books
• Software
• With DRM, unauthorised use or reproduction of your online IP is much more difficult, if not impossible.

3. Opt for strong nondisclosure agreements

A nondisclosure agreement (NDA) restricts any involved party from sharing information defined by the terms of the agreement. Draft an NDA to strengthen your defences against IPR violations like trade secret misappropriation, where an employee could share sensitive IP-related information with outsiders.

4. Create strong access credentials

Guarding a secret requires proactive action unless you’re the only person who knows the secret. Without adequate security around a trade secret, courts won’t be convinced that the secret was important enough to guard. Use strong credentials to restrict access to any valuable information, especially relating to intellectual property.

This might mean:

• Separating teams so access to files isn’t shared
• Training employees on your company’s security best practices
• Frequently updating passwords
• As with any security protocols, leaks can still happen. If your intellectual property is compromised, it might be time to speak with an intellectual property expert to determine your options for IPR enforcement.

5. How to fight theft of intellectual property?

If a third party steals your intellectual property rights, you need to have protections in place to fight the theft. If you haven’t registered or protected your IP, you may still be able to halt the reproduction of your ideas, but you may not be entitled to any monetary damages. You have two options to stop an IP violation in progress, but it’s important to remember that registering your IP protections is your best chance of fighting any impersonator or infringer in court.

1. Send a request to stop the violation

The first option to halt an IP infringement is to request that the violating action in question be stopped. This doesn’t need to be a threatening request but instead a warning notice. It states your ownership claim over the property in question and notes that you’re requesting the recipient stop all actions related to the reproduction or usage of your intellectual property.

Example: You own the publishing rights to a certain song that was recently featured in a YouTube video by a popular influencer. You may send a request for YouTube to remove the video to protect your IPR. The request likely won’t result in you being paid any monetary damages, but the influencer will be warned against committing similar offences in the future.

2. Pursue legal action

If a cease and desist either doesn’t work or isn’t applicable to your IP violation claim, it may be time to pursue legal action against the infringer. You can’t take this step unless your work was previously registered and protected—if you decide to pursue legal action, you’ll need to register the work in question first, and you won’t be able to recover any damages from the time before the work was registered.

Example: You own a registered trademark that protects the branding and marketing for a popular board game. An online competitor creates a product that resembles yours and you believe it causes confusion for customers. You might file a civil case suing for an injunction to stop the reproduction and sale of the competitor’s product and for monetary damages and losses.

IP protection prevents malicious actors (anyone who might try to actively infringe your IP rights) and puts a stop to accidental misusage (anyone who may unintentionally infringe your IP rights). If your business is intellectual property intensive, it’s likely to be a target for others looking to make a quick profit by stealing your ideas. Learn how to defend expressions of your ideas against theft by registering your intellectual property and speaking with an intellectual property attorney who can help ensure that the best possible protection is secured for your work.

6. Benefits of IPR

Intellectual property rights not only protect the ideas or concepts of business but also protect the genuine business assets that are vital to the products and services.

Several advantages to secure intellectual property rights include:

1. Enhances market value – Intellectual property rights can help you generate business through the licensing, sale and even commercialization of the products and services protected under IPRs. This will ultimately improve the market share and help in raising profits. Having registered and protected intellectual property rights can also raise the business’ value in case of sale, merger or acquisition.

2. Turn ideas and thoughts into profit-making assets – Ideas have little value on their own but registering ideas under intellectual property rights can help you turn it into commercially successful products and services. Copyrighting or licensing the patents can lead to a steady stream of royalties and additional income. 

3. Market your products and services – Getting intellectual property rights can help your business’ image. Intellectual property rights like trademark registration can help you separate your products and services from others.

4. Access or raise Capital – Through sale, licensing, or by using IPRs as collateral for debt financing, an individual can monetize for debt financing. Intellectual property rights can be used as an advantage while applying for government funding like grants, subsidies, and loans.

5. Enhances export opportunities – A business that has registered IPRs will be able to use brands and designs to market its products and services to other markets as well. A business can also tap into franchising agreements with overseas companies or export patented products.