Infringement

Property

The simplest is the most difficult to define, this applies to the definition of property. The law does not provide a definition of property.

As per the Encyclopaedia of Britannica, ‘Property, an object of legal rights, which embraces possessions or wealth collectively, frequently with strong connotations of individual ownership. In law, the term refers to the complex jural relationships between and among persons with respect to things. The things may be tangible, such as land or goods, or intangible, such as stocks and bonds, a patent, or copyright’.

Demystifying Intangible Property

A right forms a bond between a person and a property. A bundle of rights forms ownership of the property. In other words, Property means the assertion of rights, to the exclusions of others, on a tangible object.

The nature of rights has always remained intangible. However, the connection to an object limits the property. This limitation of property is overcome by intellectual property (IP), making it much-much more powerful.

The definition of ‘Theft’ in Section 378 of the Indian Penal Code (IPC) says ‘Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order of such taking, is said to commit theft’. The contours ‘out of possession’ and ‘any movable property of this definition provide delimitation of IP. An owner of an IP without being ‘out of possession’ may be deprived of one’s IP. This dispossession may take place with our without the knowledge of the IP owner. The bond(s) do exist between the owner and the IP but the IP is free from the material limitation of an or a set of objects. IP is the knowledge component of an object with which ownership is associated. The object in itself may be a knowledge product, like an original expression in a tangible format (copyright). The object may have a knowledge association in the form of its name (trademark or geographical indication) or external appearance (Industrial Design). The object creation in itself may be due to the knowledge component (patent). Technically, the theft definition in IPC does not apply to IP.

The rights in IP are rights in rem. The IP rights are negative in nature. The IP rights exclude all to the exclusion of the owner from any kind of exploitation without the consent of the owner. The freedom from the bondage of limiting the rights with an object or a set of objects. It makes it possible for the third parties to exploit the IP without the knowledge of the owner because the owner does not get to dispose of any tangible. Markets sustain Industrial Property. Without them, industrial property cannot exist. The freedom from tangible limitations needs special tools for checking the unauthorized harnessing of intellectual property. These tools are known as a patent, trademark, industrial design, copyright, geographical indication, Integrated Circuit (IC) layout design, and trade secret. The breach of the rights underneath these tools is known as Infringement.

The Black Law dictionary says infringement is used especially of invasions of the rights secured by patents, copyrights, and trademarks.

Here comes the importance of the registration of IP rights. Without registration, most of the IP rights do not come into existence and the remaining rights have a passing-off remedy for their unauthorized exploitation in the common law jurisdictions. The infringement remedy is available only for the registered IP tools. The infringement of IP rights triggers both civil and criminal remedies for Copyright and Trademarks. The rest of the IP tools have the only civil remedy, an injunction. There is no special statute, like for the other IP tools, for Trade Secret in India. Having said the factual position, the Personal Data Protection Bill, 2019 is waiting for its time for enactment.