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Paris Convention for the Protection of the Industrial Property

 Paris Convention for the Protection of the Industrial Property 


Before 1883, industrialisation had already begun and international trade was also on rise. To obtain a patent, novelty is a criteria and for novelty, the parameter is that something similar should not be existing anywhere in the world and it was difficult to obtain patent in all these countries simultaneously. Therefore, a desire for harmonisation of laws was there largely with respect to trademark and patent. 

Paris Convention applies to industrial property. The convention for the first time discussed two important concepts: 


National Treatment : If government of a particular nation treats its citizens in a particular manner, it is obliged to treat the citizens of other countries in a same manner. As per the convention, every member country must provide same protection to citizens of other member states that it provides to its own citizens. The same national treatment must be granted to nationals of countries which are not party to the Paris Convention if they are domiciled in a member country or if they have a “real and effective” industrial or commercial establishment in such a country.


Right of Priority : If an individual has applied for protection in one member state, he will get a certain period of time (12 months for patents and utility models, 6 months for industrial designs and marks) to apply for the protection in other member states without violating or breaking the novelty. 


Priority Date : The date of first filing of application for a patent in any of the convention countries. 


Priority Art : Knowledge in the form of prior use or publication. It will be seen whether the device is already in use or a literature is available in any part of the world regarding the same.   



Rules:

  1. The patents granted in the member states for the same invention are independent of each other. The examination of the patent application will be done as per the independent rules of member states. The fact that an application has been accepted or rejected in other member states is immaterial for any particular state to consider an application for patent in its own country. 

  2.  The inventor has the right to be named in the patent. Whether the inventor will be given royalty or not is immaterial but there exists the moral right. 

  3. The convention also talked about grant of compulsory licenses. It can be granted in certain circumstances like failure to work, insufficient working of the patented invention. However, it can be granted only after 3 years from the grant of patent or 4 years from the filing date of the patent application. 

  4. Forfeiture of patent can take place only when compulsory licensing proved to be insufficient and it can be done after expiration of two years from the grant of first compulsory license. 

  5. A mark registered in origin country, on request must be protected in its original form in other member states as well. 

  6. Member country are obliged to refuse the registration and to prohibit the use of a trademark that is liable to create confusion with another trademark already well known in that member country.

  7. If there are certain official exhibitions which are backed by member states, a temporary protection will be granted to invention, industrial design, utility model or product even if filing of that is not done. Such temporary protection shall not extend what is mentioned in Article 4. If later, the right of priority is invoked, the period will start from date of introduction of the good (Article 11).

  8. Inter-state disputes can be settled amicably through negotiation or it can be brought before the ICJ.  

  9. The convention does not mention the minimum term of protection, it only talks about the priority date.

  10. Utility model has only been discussed in this convention. 

  11. It mandated that the member states should have laws with respect to unfair competition.

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