For a single product one can avail a number of IP protections for different aspects. The maximum number of protection will depend on each case.
Most often, many people believe that for a single product only one kind of intellectual property protection can be availed. But in reality it is not so, even for a single product there can be multiple IP protections. For example, “Coco- Cola” brand has got a trademark, the formula for its Soda is a trade secret, its packaging is protected by copyright and the shape of Coco- Cola’s bottle can be protected by a design patent and a trade- dress. The author analyses the different types of intellectual property rights available and how each one of it or a combination of it can be used to protect the said product.
There are commonly 4 types of intellectual property rights. They are copyright, patent, trademark and trade secrets. Apart from these 4 types there is also protection of plant variety, designs protection and geographical indication of goods. Let’s understand how each one of these protects a product.
Copyright- A copyright protection is granted for works of literary, artistic and dramatic works. For the author’s originality and creativity the copyright protection is granted. In India, it is generally granted for lifetime of the author plus 60 years after death. It is governed by the Copyright Act, 1957.
Trademark- A trademark as the name itself suggests, protects the unique mark of a product from others. So it essentially helps the businesses to distinguish one’s products from that of the others. The protection is granted for a period of 10 years from the date of filing the application. It is governed by the Trademarks Act, 1999
Patents- Patents are generally granted for inventions or pharmaceutical products generally for a period of 20 years. There are two types of patents; utility patents and design patents. The former is the protection granted for the functional aspects and the later for the ornamental features. However, in India for designs there is a separate legislation which deals with designs specifically known as the Designs Act, 2000. The patents are granted and governed by the Patent Act, 1970.
Trade Secrets- Even though there is no separate legislation in India to protect trade secrets it is generally protected by Non- Disclosure Agreements in companies. As stated in the beginning of the article a trade secret is granted to protect the secret formula or ingredients that make the product different and unique from others.
Depending on the product, its utility, design or packaging the inventor can choose to protect its products by availing any one or a combination of the above said IP protections. One has to carefully choose from the options available. Although these are the common types of protections available there are a number of alternatives to IP available such as Prizes, government grants/ funds, open source, market norms or even do nothing as the registration of each kind of IP are optional.
From the legal viewpoint it is always beneficial to have your products registered with the suitable IP. Once you establish your name in the market, it is quite possible to have your products pirated or copied in packaging or duplicate products being sold creating confusion in the minds of the people. Thereby, registration gets you an advantage to fight back and claim what is rightly yours. In infringements suits, the real and the original authors can actually get a handsome amount by way of compensation. At the same prior user gets even ore advantage than the registered owner of the mark. So, it is actually to the owners/ authors to get their products registered or not.
There are few advantages and disadvantages in getting the products registered for any of the mentioned Intellectual Property rights. One must be really careful while not choosing to register the product as it can incur huge costs in a legal battle.
One must be really careful in choosing the right kind of IP protection for their product. Recently, the Delhi High Court in Crocs case, denied the interim relief for passing off as the product was registered under the Design Act and could not avail the trademark protection.1 This stirred a lot of confusion among the public and several businesses. However on appeal the judgment was put a stand- still in acting as a precedent until disposed off and the interim relief. Here, the point is when it comes to product’s shape can one avail both trademark and design protection or only one in Indian regime is unclear.
Apart from the above said overlap in relation to product shape, one can avail protection from a number of IP protections available. The maximum number will vary from case to case. With respect to design, packaging, logo or utility in a single product one can avail different IP protections.
- M /S Crocs Inc USA v. M/S Aqualite India Ltd & Ors, FAO (OS) (COMM) 81/ 2018.