Forms of Industrial and Intellectual Property

IPR II · Unit I · Topic 2 of 8 · 6 min read

The definitions of intellectual property in the Paris Convention, the WIPO Convention and TRIPS, the division into industrial property and copyright, a survey of each form with its Indian statute, subject matter, test and term, and the classifications by registration, by function and by duration.

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On this page

1. International definitions
2. The basic division
3. The forms, one by one
4. Comparison
5. Other ways of classifying
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Set question. “What are the various forms of industrial and intellectual property? Explain” was the alternative essay in January 2024. The trap is to write ten paragraphs of definitions. Give the international definitions first, then the two-way division, then each form with a fixed set of points (subject matter, test, term, Indian statute), and close with a comparison table.

1. International definitions

Paris Convention, 1883, Article 1(2): industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. Article 1(3) gives it the broadest meaning, extending to agriculture and extractive industries.

Convention Establishing the World Intellectual Property Organization, 1967, Article 2(viii): intellectual property includes the rights relating to literary, artistic and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. The list includes scientific discoveries, which no national law protects as such, and the open-ended last clause.

TRIPS, 1994, Article 1(2): for the purposes of the Agreement, intellectual property refers to all the categories that are the subject of Sections 1 to 7 of Part II: copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits, and undisclosed information. This is the narrowest and most precise definition, and it is the one that binds WTO members.

2. The basic division

Industrial property: rights over inventions, commercial signs and the appearance of products, used in industry and trade. Patents, utility models, designs, trade marks, geographical indications, layout-designs, trade secrets and unfair competition.
Copyright and related rights: rights over literary, dramatic, musical and artistic works, films and sound recordings, and the neighbouring rights of performers, phonogram producers and broadcasters.
Sui generis rights: rights designed for a particular subject matter that fits neither category, such as plant varieties, layout-designs and (in the EU) databases. The protection of traditional knowledge and genetic resources is the newest such category.

3. The forms, one by one

Patents. Exclusive rights over a new invention, product or process, involving an inventive step and capable of industrial application. Granted after examination. Term twenty years from filing. Patents Act, 1970.
Utility models (petty patents). Shorter protection, often around ten years, for minor technical improvements with a lower inventive step, without substantive examination. Available in Germany, China and Japan. India has no utility model law; the idea has been discussed in policy documents.
Industrial designs. The features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article and judged solely by the eye. Must be new or original. Ten years, extendable by five. Designs Act, 2000.
Trade marks. A mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others, including shape, packaging and combination of colours. Ten years from registration, renewable indefinitely. Unregistered marks are protected by the action for passing off. Trade Marks Act, 1999.
Geographical indications. An indication identifying goods as originating in a territory where a given quality, reputation or other characteristic is essentially attributable to that origin: Darjeeling tea, Mysore silk, Channapatna toys. Ten years, renewable. Collective right of producers. Geographical Indications of Goods (Registration and Protection) Act, 1999.
Copyright. Original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Arises on creation without registration. For most works, the author’s life plus sixty years. Copyright Act, 1957, amended in 2012.
Related rights. Performers’ rights and broadcast reproduction rights (sections 37 and 38 of the Copyright Act), and moral rights of authors and performers.
Layout-designs of integrated circuits. The three-dimensional arrangement of elements in a semiconductor chip. Ten years. Semiconductor Integrated Circuits Layout-Design Act, 2000.
Plant varieties. New, extant and farmers’ varieties that are distinct, uniform and stable; breeders’ rights alongside farmers’ rights. Protection of Plant Varieties and Farmers’ Rights Act, 2001, India’s sui generis system under Article 27(3)(b) of TRIPS.
Trade secrets and confidential information. Commercially valuable information kept secret by reasonable steps. No statute in India; protected by contract and the equitable action for breach of confidence. TRIPS Article 39.
Unfair competition. Acts contrary to honest commercial practice (Paris Article 10bis). In India, passing off, the law of confidence and the Competition Act, 2002 cover parts of it; there is no general unfair competition statute.
Traditional knowledge, genetic resources and folklore. Protected defensively through the Biological Diversity Act, 2002, section 3(p) of the Patents Act, and the Traditional Knowledge Digital Library.

4. Comparison

Right	Protects	Arises by	Term
Patent	Invention	Grant	20 years
Design	Visual appearance	Registration	10 + 5 years
Trade mark	Source-identifying sign	Use or registration	10 years, renewable
GI	Origin-linked quality	Registration	10 years, renewable
Copyright	Original expression	Creation	Life + 60 years
Layout-design	Chip topography	Registration	10 years
Plant variety	DUS variety	Registration	15 years (18 for trees and vines)
Trade secret	Confidential information	Secrecy	While secret

5. Other ways of classifying

By function. Rights that reward creation (patents, copyright, designs, plant varieties) and rights that protect identity and reputation in the market (trade marks, GIs, passing off). The first group is justified by incentive; the second by consumer protection and fair competition, which is why marks and GIs can last indefinitely.
By formality. Registered rights (patents, designs, registered marks, GIs, plant varieties) and unregistered rights (copyright, passing off, confidence).
By holder. Individual rights and collective or community rights (GIs, farmers’ rights, collective and certification marks, traditional knowledge).
By strength. Patents and designs give a true monopoly, good against independent creators. Copyright and trade secrets protect only against copying or misuse; independent creation is a defence.

Overlap. One product can carry several rights. A bottle of soft drink may have a patented closure, a registered shape design, a trade mark on the label, copyright in the label art, and a secret formula. The statutes manage overlaps: under section 15 of the Copyright Act, copyright in a design capable of registration under the Designs Act ceases once the article is reproduced more than fifty times by an industrial process; and after the Full Bench of the Delhi High Court in Mohan Lal v. Sona Paint & Hardwares (2013) a registered design can also support an action for passing off where the design is used as a trade mark. The Full Bench in Carlsberg Breweries v. Som Distilleries (2018) allowed design infringement and passing off to be joined in one suit.

How this is examined

For the essay: the three definitions (Paris, WIPO, TRIPS) and how they differ; the division into industrial property, copyright and sui generis rights; each form in three or four lines; the table; and one paragraph on overlaps. The short notes on “Trade marks” and “Geographical indications” set in the same paper are answered in their own notes in Unit III and Unit IV.

Now try the real questions: IPR II past question papers.