Intellectual property is that class of intangible asset that is created by the human intellect. It is a very valuable business asset for a company. Though intangible in nature and difficult to quantify, intellectual property is very critical to the success of a company. Creators of intellectual properties are their owners and have similar legal rights as the owners of any other physical asset, such as land or machinery. However, being intangible in nature intellectual property is vulnerable to misuse and infringement. Today, new businesses which are based on new and innovative ideas are coming up every day. These ideas and innovations give the company an edge over its competition, and its success is totally dependent on it. It is, therefore, paramount that the intellectual property rights of the rightful owners be protected from infringement.
There are various types of intellectual property, such as trademark and logos, copyrights, patents, industrial design, trade secrets, geographical indication, etc. India is fast becoming a major hub of inventions and innovations, and therefore demand for intellectual property lawyers in India has immensely increased over the years. Some lawyers render their services in all types of intellectual property, while some specialize in one particular type of intellectual property. Mentioned below are some major responsibilities of an intellectual property attorney.
Role and Responsibilities
The primary job of an intellectual property lawyer is to protect the client’s creative and innovative interests. It could be either to patent a new product or process, or to ensure that an intellectual property right is not infringed upon. Whatever area of intellectual property attorney focuses on, the responsibilities are almost the same across domains.
One of the roles of an IP attorney is to act as a consultant to the client on matters concerning intellectual property. Usually this role entails advising clients on whether:
- An intellectual property can be patented, copyrighted, or trademarked
- What are the best ways to protect intellectual property from infringement
- Whether the product or process being considered will infringe upon someone else’s IP rights.
IP lawyers are often called upon by clients to help them choose an Internet domain name or a trademark. This is to ensure that the domain name or trademark they want to register is not already being used by someone else and that it would not violate anybody else’s IP right.
Drafting Legal Documents
Another important task of an IP lawyer is drafting legal documents pertaining to filing of patent applications or preparing licensing agreements. An IP lawyer drafts applications to the competent authority at the national and international level and also drafts amendments to already filed applications if any clarification is sought. Also, he/she is responsible for drafting licenses and agreements for transfer of IP rights and permission to use by other people.
Protecting Clients’ Interests
The IP lawyers represent their clients before administrative bodies and courts. His or her main objective is to secure the rights of the client and then protect those rights from being violated by others. If a client thinks its IP right has been infringed upon, the IP attorney has to prove that the client’s intellectual property has been misused or used by someone else without consent, and seek compensation for any commercial loss that it may have suffered.
Defending the Client
Apart from protecting the client’s IP rights, the attorney also has the responsibility to defend the client if their clients are accused of violating the intellectual property rights of others. If a client has been accused of infringement of someone else’s intellectual property, the IP lawyer has to defend his/her client by either proving that said property didn’t deserve protection in the first place or the protection granted was invalid.
Areas of Intellectual Property
There are four basic types of intellectual property that intellectual property lawyers in India render their services in. While the list is in no way exhaustive, mentioned below are the four most common areas of intellectual property where IP attorneys’ role is important.
The Trademark law protects logos and symbols, words and phrases that are used to distinguish one product from the other. Unauthorised use of the protected trademark is an offence punishable under the law.
Copyright law protects the works of artists, photographers, writers and musicians, etc. and gives them the exclusive rights as to how their works can be used. Reproduction of such works without written consent amounts to violation of the Copyright Act.
The Patent law is meant to protect inventions. Two types of patents are there-product and process. Patents are provided for a limited period, generally up to 15 years.
Trade secret is a secret formula, process, method or device that gives a business a competitive advantage.
Though the above laws protect the interest of the owners, license can be granted for legitimate use of the protected property. It is only when the protected intellectual property is used without written consent that it amounts to violation of the law.
Though violations of intellectual property rights have become quite common and lawsuits are filed frequently, intellectual property lawyers in India generally prefer out of court settlement than going in for lengthy litigation.