Intellectual Property is one of the most valuable assets within a business which add commercial value by way of creativity, idea, innovation, and invention. It distinguishes the Small and Medium-sized Enterprises from its competitors and creates its own brand identity. It is important for the Small and Medium-sized Enterprises to protect its Intellectual Property in this competitive world and progressively digitized market environment. In India, many Small and Medium-sized Enterprises including the start-ups fail to identify their Intellectual Property and missed the valuable opportunity to utilize the Intellectual Property for their own benefits due to unawareness of the rights and indolence. Few of the Small and Medium-sized Enterprises consider the Intellectual Property to be too complex and expensive, which is not the reality. There is also a myth that protection of the Intellectual Property suits best for large companies and firms and not for Small and Medium-sized Enterprises.
The Government of India has framed various policies to promote and protect innovations. The time is ripe for every Small and Medium-sized Enterprises to estimate the value of their innovation and inventions and protect their Intellectual Property. The Small and Medium-sized Enterprises by protecting their Intellectual Property, will be able to fast track their growth by securing the value of their Intellectual Property and remain competitively fit in an evolving world. The handling of intangible assets (e.g., patent,copyright, trademarks, and designs) by the Small and Medium-sized Enterprises in a planned manner can reform it to a globally recognized company or firm.There are records to prove that the Small and Medium-sized Enterprises which applied for and obtained patents, copyright, trademarks, and designs have grown quickly and succeed than those businesses which neglected the value of their Intellectual Property or filed late applications for protecting their Intellectual Property. The registration helps the Small and Medium-sized Enterprises to protect its Intellectual Property rights, increase the valuation, make it tradeable through royalty, licensing, asset backed financing or acquisition and open up the door for prospect of investments, profitable joint ventures, collaborations, and funding.
As per the World Intellectual Property Organization, the Intellectual Property refers to creations of the mind, such as: inventions; literary and artistic works;designs; and symbols, names and images used in commerce. The three main categories of Intellectual Property are:
“Copyright”is a form of Intellectual Property protection granted under Copyright Act, 1957 to the creators of original works of authorship such as literary works(including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form,including a machine readable medium), dramatic, musical, and artistic works,cinematographic films, and sound recordings.
The registration is valid throughout the lifetime of the author and 60 years after his/her death. The author has protection in most of the countries.
“Trademark”is a form of Intellectual Property protection granted under Trademark Act 1999 which means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include words, phrases, symbols, designs or any unique combination, shape of goods, their packaging and combination of colors.
The registration is valid for 10 years which can be made perpetual, as long as renewed every 10 years. The trademark application should be applied separately in every country in which protection is required.
“Patent”is a right granted under Patent Act 1970 to the owner of an invention that prevents others from making, using, importing, or selling the invention without his permission.” The invention shall mean a new product or process involving an inventive step and capable of industrial application.
The registration is valid for a period of 20 years after which it goes in public domain. Patent protection is a territorial right and therefore it is effective only within the territory of India. The patent application should be applied separately in every country in which protection is required.
To have the intellectual property protections as stated above, it is pertinent that the Small and Medium-sized Enterprises should have an understanding about their Intellectual Property, rights attached to it and methods to protect the same. A Small and Medium-sized Enterprises or an entrepreneur who is the author,developer and inventor of unique business name, tagline, design, logo, secret recipe, invention, software, application, or original literary and artistic work can avail the privileges and rights stated under the Intellectual Property laws. In order to obtain the protections in favor of the Small and Medium-sized Enterprises, it should be the first to think, first to create,first to use, and first to act.
The Intellectual Property rights are not self-enforcing and there is no mechanism to inform the owner that someone is infringing the Intellectual Property. The owner can enforce the Intellectual Property rights by sending notices against violations or cease-and-desist letter directly to the infringer or suing the infringers for infringement and/or passing off (in case of unregistered trademarks) in the competent court or seek criminal remedies provided under the provisions of Copyright Act 1957 or Trademark Act 1999.
Any violation or breach of protected intellectual property rights amounts to Intellectual Property infringement. If the Small and Medium-sized Enterprises copy or otherwise exploit the work which is protected or registered under the Intellectual Property laws without the permission of its owner will entitle the owner to take legal action which may result in injunctions against the Small and Medium-sized Enterprises, along with orders to pay high damages. The Small and Medium-sized Enterprises if found guilty of Intellectual Property infringement will be punishable with imprisonment and fine under the provisions of Copyright Act 1957 and Trademark Act 1999.
The Bombay High Court has recently held that offences of infringement of copyright under Copyright Act and of trademark under Trademark Act are non bailable offences as the punishment attracted is up to three years and can be"exact three years."
The Small and Medium-sized Enterprises and the entrepreneurs shall be diligent when it names and brands its business. It is advisable to carry out copyright,trademark, and patent searches to confirm that the Small and Medium-sized Enterprises is not infringing any Intellectual Property. The Small and Medium-sized Enterprises can further check with the Companies House to ensure that no one else is using its proposed name and brand. It is worthwhile getting professional help from an Intellectual Property attorney for filing the applications correctly, exercising the Intellectual Property due diligence so as to identify all the intangible assets in your business and defend any Intellectual Property infringement claim filed against you.