Intellectual property, as the name suggests, refers to the rights of creators of intellectual property ranging from inventions, trademarks, literary works, musical works and even designs. The intention behind the laws concerning intellectual property is to protect the rights of the creator/owner of this intellectual property so that any unauthorized use of this intellectual property will have repercussions under the law.

In India, the laws regarding intellectual property can be broadly enumerated as follows:

  1. The Trade Marks Act, 1999
  2. The Patents Act, 1970
  3. The Copyright Act, 1957
  4. The Designs Act, 2000
  5. Geographical Indication of Goods (Registration and Protection) Act 1999
  6. Protection of Plant Varieties and Farmers’ Rights Act 2001
  7. Design of Semiconductor Integrated Circuit Layouts Act of 2000

Intellectual property laws and the provisions they contain give the creator/owner the exclusive right to commercially exploit this intellectual property for a certain period of time, which varies according to the legal provisions governing the intellectual property concerned. One of the common means employed by owners and creators of intellectual property is to provide an intellectual property license to interested parties. Another way to sell intellectual property is to assign it to the interested party instead of a consideration.

How to sell intellectual property?

As noted above, there are several methods of exploitation available to IP owners and creators. The owner can among others use the rights themselves, such as using the trademark to market its own products or services or licensing franchisees and sharing revenue with franchised establishments. To put it in simpler terms, assignment and license are the two methods that exist for an owner or creator of intellectual property by which he can enter into an agreement with a third party to receive a royalty, royalty or other type of remuneration.

1. How to sell a Brand?

The Trade Marks Act 1999 permits the assignment of a mark and defines it as an assignment in writing by the act of the parties concerned. The details of the rights granted as well as the procedure for these have been covered in Sections 37 and 39 of the Act. It is relevant to mention that when a brand is assigned, all the rights relating to this brand are assigned to the assignee. While the assignment of a trademark must be registered with the Trademark Registry, even unregistered marks can be assigned.

The law, in addition to the above, also allows the owner of a mark to grant a license for his mark and thus allow a third party to use the mark and even to register such a licensee as a registered user. It should be mentioned, however, that when transferring rights based on a license, the right granted to the licensee is limited to the terms of such license agreement. Such licensee also has no right to subsequently assign or transfer the trademark in any capacity whatsoever.

2. How to sell a patent?

The Patents Act 1970 does not provide any specific procedure for assigning a patent. It should be borne in mind that in the event that a patent has more than one inventor, all these inventors will have to jointly give their consent to the assignment. The assignee of a patent (by written deed) becomes the owner of the patent for all intents and purposes. A right in an invention (for which a patent has not yet been issued) may also be assigned by law; Article 20 of the law stipulates that a request to this effect may be addressed to the Controller of Patents.

In addition, patent rights can also be transferred in the form of a mortgage. When the patent rights are transferred in the form of a mortgagee for a fixed sum of money and once this amount is repaid to the mortgagee, the patent rights revert to the patent applicant.

A patent licensing agreement is entered into between the patent owner and the licensee which then permits the licensee to make, sell, practice or use the invention which has been so licensed on an exclusive basis. or not exclusive.

3. How to sell the copyright?

A copyright owner has the option of assigning his right to the assignee against a lump sum payment or an ongoing payment as in the case of royalties. The assignment of a copyright is the transfer of the interest in the work to the assignee by the assignor. Sections 18, 19 and 19A of the Copyright Act set out the provisions governing the assignment of copyright. It is relevant to note that under Article 18(1), the proviso provides that the authors of literary and musical works forming part of a cinematographic film have an inalienable right to collect royalties which was introduced in 2012.

This provision provides that any assignment of a copyrighted work that would assign this inalienable right to the assignee is void ab initio, that is, void from the outset. The law further provides for the reversion of rights where, in the event that an assignee does not use the rights assigned under a duly signed agreement for a period of one year, the rights automatically revert to the assignor.

Another method provided by law is to license one’s rights in the work from the copyright owner. Through this mechanism, the owner of an already existing work or the potential owner of a future work can grant a license to any party by creating a limited interest in the exploitation of the copyright, by limiting the use of this right by time, territory, non-exclusivity and/or extent.

It is relevant to mention that the agreement to assign such a license must be in writing and in the event that the work has not yet seen the light of day, then it will only come into force upon the creation of this work. In addition, the law contains provisions for compulsory and statutory licenses where certain situations require authorities under the law to grant the applicant the right to use a copyrighted work.

4. How to sell a Design?

The Designs Act 2000 as such does not refer to any specific method or procedure governing assignments and licensing except that any such document transferring the rights to a design must be in writing. However, the law provides for the registration of such a transfer with the statutory authority. It should further be noted that like any other transfer of intellectual property, it is crucial to define the scope of the transfer as well as well-defined terms of payment.

Conclusion

As discussed earlier, the process of commercializing any intellectual property generally begins with registering it under the appropriate law and authority. In addition, it is important to always keep these documents in writing and have them registered with the relevant statutory authority, wherever permitted. It is very important to have an airtight agreement because such a transfer of rights can cause the transferee to try to usurp more rights than he is entitled to. In order to ensure the protection of your intellectual property and the rights arising therefrom, it is extremely important to take sound legal advice at all stages of the treatment of intellectual property, from registration to licensing. or assignment of intellectual property.

Frequently Asked Questions

1. How do you buy and sell intellectual property?

The ideal way to carry out any transaction involving intellectual property involves the crucial element of first ensuring that the rights transferred are protected by the appropriate law and that such transfer, to be valid, must be treated in accordance with the provisions of this law which confers the rights on the creator/owner of this intellectual property. It is therefore strongly recommended to call on the services of the professional concerned before engaging in any type of transaction involving a transfer of intellectual property.

2. How do you profit from intellectual property?

All types of rights in an intellectual property can be used either by the owner (through the exploitation of the intellectual property itself) or by the owner who can receive payment for the transfer of the rights in this property to a third party . Assignment and licensing are two main forms of transfer of intellectual property rights which then help the assignor to receive monetary compensation in return.

3. Who will buy your intellectual property?

Any party interested in marketing their intellectual property rights has many methods to get in touch with interested buyers. A good starting point in the case of a brand is to build a strong brand which can then be franchised to third parties. Similarly, if an inventor wishes to obtain consideration for his patented invention, he could benefit from identifying industries that use the current equivalent of the technology or could benefit from the invention.

4. If you created something at the request of your employer, can you still sell it?

Since many people employed by organizations have jobs that involve the creation of intellectual property, in a case like this, if the employee’s contract contains provisions relating to the creation of intellectual property (and that is automatically attributed to the employer), the employee does not obtain any intellectual property rights on such creation.

5. How much does intellectual property cost?

As such, the registration of intellectual property under Indian laws differs due to many factors including the purpose of the creation, the type of law under which protection is sought and in some cases even the nature of the applicant’s entity. It is always good to get in touch with a legal professional familiar with the nuances of the applicable law, who can better help the creator to protect his work.

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