WTF is IPR and why the hell you should care?

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If you are sitting there coding your face off or launching a new service or sometimes even if you are just messing around (I said sometimes), you are creating Intellectual Property rights that belong to you. If you have developed something unique, be it a product or a technology or a brand, you need to consider the appropriate steps to protect this.

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Why? Ask yourself this question. If tomorrow someone copies your product or service, what do you do? Or if it turns out the brand you have developed belongs to someone else, what do you do? You can’t go running to the principal or the boss to ask them to stop copying. Mommy is not going to be able to help you too. Is it too late to do anything? Maybe!

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Usually it takes 2-3 years to register a trademark, 1-2 years to get a copyright registered, 3-5 years to get a patent and around 12 months to get a Design registered. And that’s if things go well. So if your brand/product/service is out there and you haven’t taken steps to protect them, you are late in doing so. Instead of an offensive strategy you will have to play a defensive one. The usual next question is even if I did register the relevant IPR, what’s the point of spending years and years before Indian courts adding to the crippling pendency? Firstly you don’t automatically end up going to court. IPR’s act as a warning sign and a lot of the trouble can be avoided by a proper exhibition of such rights. If despite this there is a need to sue, the days of decade long litigations are gone. Today, Delhi High Court seems to be competing with Amazon and Flipkart as to who can deliver faster.

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For those who are still stuck at the heading and are wondering what IPR is, here is a short summary of the different types that you can own:

Trademarks. A trademark is any sign used to differentiate your product and services from those of others. It could be a word, logo, sound, shape, color, scent, taste or any combination of these. A trademark represents the goodwill of your company. From the day you start using a mark in commerce you start gaining rights in such use. By registering you get nationwide ownership,evidence of its validity, right to use the ® symbol, right to sue in court in the city where your company resides, protection against registration of confusingly similar marks, etc.

Copyrights. Copyrights cover original works of authorship, such as art, advertising banners, books, articles, music, movies, software, etc. The range of subject matter is very broad. Copyright does not protect ideas but their expression in various forms. If someone copies a substantial portion of your lyrics, source code, music, database, product insert, etc., you have a right to get an injunction against such use.

Patents. Patents are granted upon an application by an inventor for protecting a new product or process. The invention has to be new and that which has not been revealed before or published anywhere in the world. In India you get a grace period of 12 months from the date of disclosure of your invention to initiate the application process. The application process can take around 3- 5 years and it’s complicated. If granted, the owner gets a monopoly for 20 years for the granted patent. Patents are geographical and have to be applied for separately in each country. Ideas are not patentable, only their actual embodiment.

Registered Designs: Again a monopoly right which lasts for 15 years in India and covers novel designs like the shape of a bottle, the design of a cap, the texture of a cloth, shape of toys etc.

IPR registrations are also an effective mechanism when someone sues you and you need to raise your defences. And if you protect what you create at the right time and in the right amount, you should be able to stop those hurting your business effectively and instantly. Yes I said instantly and I meant in India. Protect your IP, protect your business. It’s always better to be safe than sorry.

Kapil Wadhwa

Kapil Wadhwa is an Intellectual Property lawyer and advises on Trademark, Copyright, Patent, Design, Domain and Start-up related issues. He completed his Masters (LL.M) in Law, Science & Technology from Stanford Law School. He is also Chief Editor of Venkateswaran on Trademarks & Passing Off, 5th Edition, a leading commentary on Trademark law in India. He is based in New Delhi and can be contacted via email at kapil(at)wadhwachambers.com