Intellectual Property Rights in India
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognised, and the corresponding fields of law. In India intellectual property rights are safely protected and controlled by well-established statutory and judicial framework. Apart from that, there are many attorneys and law firm of intellectual property in India in various states.
In India, intellectual property rights recognised under statue are-
The Patents Act, 1970;
The Trademarks Act, 1999;
The Copyright Act, 1957;
The Designs Act, 2000;
The Geographical Indications of Goods (Registration and Protection) Act, 1999;
The Semiconductor Integrated Circuits Layout Design Act, 2000;
The Biological Diversity Act, 2002;
The Protection of Plant Varieties and Farmers Rights Act, 2001.
India has been a World Trade Organisation member since 1995. WTO members nations must include intellectual property protection in their national law.
Treaties And Reciprocal Agreements
India is also a signatory to the following international intellectual properties agreements-
The Paris Convention
Under this, any person from signatory state can apply for a patent or trademark in any other signatory state, and will be given the same enforcement rights and status as a national of that country;
The Berne Convention
Under this, each member of state recognises the copyright of author from other member state in the same way as the copyright of its nationals;
The Madrid Protocol
Under this, a person can file a single trademark application at their national office that will provide in multiple countries;
The Patent Cooperation Treaty
This is a central system for obtaining a bundle of national patent applications in different jurisdictions through a single application.
India is not a signatory to Hague Agreement, which allows the protection of designs in multiple countries through a single filling.
Types of Intellectual Property
Intellectual property rights are customarily divided into two main area:
Copyright and Rights Related to Copyright
Copyright is a monopoly right restraining others from exercising that right which has been conferred on the owner of copyright. The object of copyright is to encourage authors, composers and artists to create original work by rewarding them the exclusive right for a specific period to reproduce the work for publishing and selling them to the public.
India is signatory to the Berne convention on copyright. However, it may be a good idea to register your copyright as doing so help to prove ownership if there any criminal proceedings against infringer. In most cases thought, registration is not necessary to maintain a copyright infringement claim in India. Registration is made, in person or via representative, with the copyright office. Since 2016, copyright policy was moved to India’s Ministry of Commerce and Industry. All the IPRs are now administrated by the Department for Industrial Property and Promotion (DIPP).
A patent is an IPR relating to invention, it is granted of an exclusive right, for a limited period provided by the Govt. To the patentee in exchange of full disclosure of his invention and excluding other from making, using, selling and importing the patented product or process.
The Patent Act, 1970; Patent Rules 2003 and Patent Amendment Rules, 2016 set out the law concerning patents. The regulatory authority for patent is the patent registrar under the office of the Controller General of Patent, Design and Trade Marks, which is a part of India’s Ministry of Commerce and Industry. Patents are valid for 20 years from the date of filling an application, subject to an annual renewal fee. India’s patent law operates under the `first to file` principal- that is, if two people apply for a patent on an identical invention, the first one to file the application will awarded the patent.
A registered distinctive name, image, or logo that represents a product and which is generally found on the product itself and the packaging. Use of trademarks is controlled by the trademark owner, who has legal protections at both national and international levels.
Trademark law in India consists of the Trademarks Act, 1999 and the Trademarks Rules of 2002 and 2017.Trademark in India is classified in about 45 different classes, which includes chemical substances used in industry, paints, lubricants machine and machine tools, medical and surgical instruments, stationary, lather, household, furniture, textiles, games, beverages preparatory material, building material, sanitary products. These classes again are further sub-divided. The main objective of trademark classifications is to group together the similar nature goods and services.
The regulatory authority for trademark is the Controller General of Patents, Designs and Trademarks under the Department of Industrial and Promotion. The police now have more robust power in enforcing trademark law, including the ability to search premises and seize goods suspected of being counterfeit without a warrant. But these powers are tempered by the requirement for the police to seek the Trademark Registrar’s opinion on the registration of the trademark before taking action.
Registration takes up to two years. A trademark in India is valid for ten years and can be renewed thereafter indefinitely for further ten-year periods.
It is an indication. It originates from a definite geographical territory. It is used to identify goods having special characteristics originating from a definite geographical territory. It is used to identify agricultural, natural or manufactured goods. The manufactured goods should be produced or processed or prepared in that territory. It should have a special quality or reputation or other characteristics.
India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 has come into force with effect from 15 September 2003. The Central Government of India has established the Geographical Indications Registry with all India jurisdiction Chennai. The GI Act is being administered by the Controller General of Patents, Designs and Trademarks- who is the Registrar of Geographical Indications.
Legally, “industrial design” is the title granted by an official authority, generally the Patent Office to protect the aesthetic or ornamental aspect of an object. This protects solely the non-functional of an industrial product and does not protect any technical features of the object to which it is applied. Industrial designs rights are granted to the creator of designs to reward them for their effort and investment in manufacturing the product. These rights enable the owner to makes articles to which the designs are applied or in which the designs are embodied. An industrial design is not protected unless it has been published in an official bulletin.
The laws governing designs are the Designs Act, 2000 and the Designs Rules, 2001. In India every application for registration of designs undergoes the act and rule as amended on a timely basis. Designs are valid for a maximum of 10 years, renewable for a further five years.
PROTECTION OF UNDISCLOSED INFORMATION
The protection must apply to information that is secret, that has commercial value because it is secret and that has been subject to reasonable steps to keep it secret. Trade secret consist of formulae, pattern, process or complication of information. (For example, the formula for a sports drink). In most countries, they are not subject to registration but are protected through laws against unfair competition.
Conditions for undisclosed information are, it is secret in the sense that it is not as a body or a precise configuration and assembly of its components, generally known among or readily accessible to person within the circle that normally deal with the kind of information in question, it has a commercial value because it is secret and it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
The protection of undisclosed information first entered regional international law in Article 1711 of the North American Free Trade Agreement of 1992. Subsequently incorporated into the worldwide minimum standard of intellectual property law by Article 39 of the Trade Related Aspects of Intellectual Property Rights (TRIPS).
National IPR Policy 2016
The Policy aims to push IPRs as a marketable financial asset innovation and entrepreneurship while protecting public interest. The plan will be reviewed every five years in consultation with stakeholders. To have strong and effective IPR laws, step would be taken including review of existing IP laws to update and improve them or to remove anomalies and inconsistencies. The policy is entirely complaint with the WTO’s agreement on TRIPS. Department of Industrial Policy and Promotion (DIPP) is the nodal agency for the all IPR issues. The policy retains the provision on Compulsory Licencing (CL) as well as preventing ever-greening of drug patents (Section 39(d) of India’s Patent Act). Under Indian Patent Act, a Compulsory Licencing (CL) can be issued for a drug if the medicine is deemed unaffordable, among other conditions and the government grants permission to qualified generic drugs maker to manufacture it.
OBJECTIVES OF IPR POLICY 2016: -
IPR Awareness: Outreach and Promotion- To create public awareness about the economic, social and cultural benefit of IPRs among all sections of society.
Generation of IPRs- To stimulate the generation of IPRs.
Legal and legislative framework- To have strong and effective IPR laws, which balance the interest of rights owners with large public interest.
Commercialization of IPR- Get value for IPRs through commercialization.
Enforcement and adjudication- To strengthen the enforcement and adjudicatory mechanisms for combating IPR infringements.
Human capital development- To strengthen and expand human resources, institution and capacities for teaching, training, research and skill building in IPRs.
ACHIEVMENTS UNDER NEW IPR POLICY
Improvement in Global Innovation Index (GII) ranking:
India's rank in the Global Innovation Index issued by WIPO has improved from 81st in 2015 to 48th place in 2021.
Clearing backlog/ reducing pendency in IP applications:
Augmentation of technical manpower by the government, has resulted in drastic reduction in pendency in IP applications. Automatic issuance of electronically generated patent and trademark has also been introduced.
Increase in patent and trademark filling:
Patent filling have increased by nearly 7% in the first 8 months of 2018-19. Trademark fillings have increased by nearly 28% in this duration.
IP process re-engineering:
Patent Rules, 2003 have been amended to streamline processes and make them more user friendly. Revamped Trademarks Rule has been notified in 2017.
Technology and innovation support centres:
In conjunction with WIPO, TISCs have been established in various institutions across different states.
ENFORCING IP RIGHTS IN INDIA
IP rights can be enforced by bringing actions to the civil courts or through criminal prosecution. India’s IP laws set out procedures for both civil and criminal proceedings, as does the Competition Act. Criminal proceedings do not apply to patent and design infringements.
A disadvantage of civil litigation is that you are unlikely to recover large damages, and punitive damages against an infringer are rare. However, if you have an identified infringer, it may be advisable to launch civil litigation, because if an interim injunction is granted the infringement can be halted pending the outcome of the case. Damages are routinely awarded in cases of copyright privacy and trademark infringement. Over the years, however, decisions in favour of foreign companies against local infringers have demonstrated the judiciary’s impartial approach.
As in other countries, the Indian government brings actions in criminal cases, although in most cases actions follow complaints to magistrates or police authorities by rights owners. Criminal proceedings against infringer's carry the prospect of much harsher remedies, including fines and imprisonment.
Mediation or negotiation with an infringer can also be effective as alternative form of dispute resolution. The Civil Procedure Code provides for a formal mediation process.
India has made a number of changes in its IPR regime to increase efficiency and has cut down the time required to issue patents. The culture of innovation is taking centre stage in the countries. India is well poised to focus on R&D. This has been reflected in its improved ranking in Global Innovation Index over the years.
Government’s efforts to strengthen national IPR policy, IP appellate tribunal, e-governance and commitment to abide by the TRIPS agreement of WTO in letter and spirit will help in improving perception of India globally.
An efficient and equitable intellectual property system can help all countries to realize intellectual property’s potential as a catalyst for economic development and social and cultural well- being.
By- Rinku Kataria
(Campus Law Centre, University of Delhi)