Understanding the Practical Aspects of Intellectual Property Rights in India

Introduction

Intellectual property rights safeguard original works, inventions, or the appearances of items, such as artistic works, scientific discoveries, and other types of intellectual property. IP rights, or intellectual property rights, are a common kind of legal IP protection for innovators. Intellectual property is unquantifiable and gives an innovator or producer exclusive ownership of a valuable discovery or product. Intellectual property is at the centre of global commercial practices and lifestyles in today’s globalization setting. These rights foster innovation by offering acknowledgment and financial benefits to the inventor or innovator, while a lack of IPR knowledge and execution may stymie a country’s economic, technical, and social advancement.

To compete with the tough competition in technology and commerce, it is vital to be ahead of the curve in terms of innovation and originality in the aftermath of globalization. In the domains of software engineering, missile technology, and other technical sectors, India is well-known for its intellectual prowess. India, on the other hand, falls behind in respect of registered patents and other IPR holdings. It’s a really concerning situation for policymakers and the country as a whole. IPR and its regulatory framework have a direct impact on the development of any society. Inventions died as a result of a lack of IPR understanding, which resulted in a significant risk of infringement, financial loss, and the deterioration of the country’s intellectual era. As a consequence, there is a crucial necessity for IPR information to somehow be distributed in order to support indigenous research and technological breakthroughs. The author seeks to emphasize numerous intellectual property rights in connection to India, as well as their accompanying laws and regulations, as well as their relevance and function in society, via the means of this article.

Intellectual Property Rights and their Classification

The term “intellectual property” relates to the human brain when it comes to innovation and invention. To innovate or produce anything new, many efforts in terms of personnel, time, energy, expertise, money, and so on are necessary. The intangible property of the individual who worked hard on the innovation or production is the ultimate concept that leads to it. As a result, the creator or innovator is granted legal rights or monopoly rights in order to reap the economic rewards of their innovation or work. To benefit from IPR, it must be registered with a legal entity in some visible or physical form. Each kind of IPR confers specific rights on the inventor or creator, allowing them to keep and gain economic benefits, thus encouraging talent and social advancement.

The following are the several forms of intellectual property rights and how they are classified:

1. Copyright protection: A copyright is a sort of intellectual property that grants the owner the exclusive right to duplicate and distribute a creative work for a certain period of time. Ideas are not protected by copyrights. It only pertains to “tangible” inventions and one-of-a-kind works, such as art, architectural plans, and software programmes. However, in the case of criminal action against infringers, licensing your copyright may well be useful in demonstrating ownership. In most cases, however, registration is not necessary to file a copyright infringement lawsuit in India. In India, unlawful book copying, along with cyber piracy of movies and technology, is a problem.
2. Patents: A patent is a legal instrument that safeguards an invention from being reproduced, sold, or used without the owner’s permission. A patentee has complete command over the monetization of his or her property, along with the power to buy and distribute the patent, as well as grant a license to any third party under mutually agreed-upon terms. Patents are valid for 20 years after the application is filed, with an annual renewal fee. Indian patent law is governed by the “first to file” principle, which indicates that if two people request a claim on the very same notion, the first to register will be given the patent.
3. Trademarks: A very well-acknowledged kind of ip protection is trademarks. A trademark is a distinctive sign that allows consumers to quickly identify a company’s goods or services. Some examples are the golden arches of McDonald’s, the Facebook symbol, and so on. A trademark might take the form of a word, a slogan, an emblem, a noise, a scent, or a color palette. In India, trade names are a kind of trademark that protects those who desire to sell under their own surname, despite the fact that other trade names exist. The Trademark registration procedure could take up to two years to complete. A trade mark in India is valid for 10 years and can be reissued endlessly for yet another ten. Police now have expanded jurisdiction to enforce trade mark rules along with the search function of places without a warrant and seize counterfeit goods. However, these rights are limited by the need that the police get the opinion of the Trade Mark Registrar on the mark’s safety prior to taking disciplinary steps. This delays the procedure and raises the likelihood of counterfeit items being deleted or sold.
4. Trade secret: Any innovation or information that is not novel (not patentable) but is valuable for business and offers economic advantages may be preserved as a trade secret. Ingredients, theories, equipment, operating systems, layouts, styles, methodologies, visualizations, construction drawings, guidebooks or classified information in the form of digital compendium, reference data, promotional strategies, financial data, personal files, and so on are all examples of trade secrets. This privilege has a lot of potential for turning hidden information into money. As a consequence, trade secrets, rather than patents, are used by the majority of corporations to protect their technology. Trade secrets encourage incremental progress in technology that does not fulfil the patent law and copy rights requirements for non-obviousness. Years of experience, investigation, and expertise are required to develop a trade secret. Coca-formula Cola’s is an excellent example of a recipe with a trade secret.
5. Industrial Design: Industrial design is the creative activity of generating an attractive or aesthetic look for mass-produced objects or commodities. Two-dimensional or three-dimensional shapes may be used to convey the design. The United Kingdom’s Design Act of 1949 relates to aspects of form, arrangement, pattern, or adornment. shape, surface, pattern, lines, colour, and so on. Industrial design encompasses the appearance-related elements of industrial items such as watches, cars, mobile phones, laptop computers, various household appliances, buildings, textile designs, and handicraft products. An industrial design must be fresh or unique and non-functional in order to be protected under most national laws. As a result, industrial design is mainly concerned with aesthetic elements, and the design registration does not protect any technological features or aspects of the object to which it is applied. Despite the fact that the technological aspects are innovative, they may be covered by a patent. Apart from these, designs with a literary or creative bent, such as cartoons, labels, booklets, maps, dressmaking patterns, and so on, are covered by copyrights rather than industrial design. Industrial design rights may last anywhere from 10 to 25 years, depending on the jurisdiction. Industrial designs in India are protected for a period of ten years under the Design Act of 2000. This time frame may be extended by another five years. 

Intellectual Property Rights and Their Value in the Modern Era

IP rights are a potent instrument in today’s environment. It’s quite likely that an innovation will be pirated without the inventor’s knowledge. IP theft has become more widespread in the digital era as the value of IP rights has increased, often ending in corporate failure. Customers rely on IP to ensure that they purchase safe, guaranteed goods, while businesses rely on the sufficient protection of their ideas, trademarks, and copyrights. In the same way that every other physical asset gives economic benefits to businesses, intellectual property does as well. In a web-based environment, IP protection is more vital than ever since it is now simpler than ever to reproduce any distinctive layout, brand, or feature. As a consequence, strong IP laws protect intellectual property while simultaneously contributing to the state’s economy. IPR is one of the few ways to safeguard intangible resources that are still available to the public and can be readily replicated.

The following are the current benefits of IPR in general:

1. An innovative notion is a method of generating revenue: In and of themselves, ideas are useless. While IP does indeed have tremendous unrealized potential when it comes to converting ideas into commercially viable products and services, Copyright and patent registration will provide a consistent supply of fees and increased income, increasing the market’s overall results.
2. Export Business Opportunities: Intellectual property may help a firm enhance organizational performance in the export sector. These trademarks or designs may be used to sell products and services in other countries, as well as to enter into a franchise arrangement with an overseas company or to export patented items.
3. Protect the ideas in order to promote them: there will always be those who try to profit from a one-of-a-kind idea, concept, or creation. As a consequence, protecting IP assets from possible misuse by other parties is critical. Businesses of all shapes and sizes may benefit from IP security.
4. Entrepreneurial Development: Companies, especially small businesses, must safeguard their distinctive goods or services against rivals who may attempt to seize their market share in order to ensure growth and profit. Initially in the business cycle, losing market share may be harmful to an organization’s long-term viability.

To ensure that things are authentic and of the great quality that buyers expect, IP rights are enforced. Consumers and markets value confidence and peace of mind, and intellectual property protection helps foster that assurance and peace of mind.

Registration and Implementation of IPR in India

If you wish to utilize most types of intellectual property rights in India, you must first register them. Individual registrations are necessary for patents in India. In India, you may register a trademark either through the local trade mark system or through the Madrid system. The “priority rights” provisions of the Paris Convention may assist in the domestic protection of registered trademarks, designs, and patents by allowing rights that have been registered elsewhere to become effective in India if filed within a particular time limit. Whenever it comes to enforcing intellectual property rights, civil court processes or criminal prosecution may be used. Like India’s IP law, the Competition Act sets forth procedures for both civil and criminal proceedings. Patent and design infringements are not pursued criminally. High damages are uncommon in civil actions, and harsh penalties against infringers are uncommon. If you have a known offender, however, filing a civil action may be a smart approach since an interim injunction may halt the infringement while the case is completed. However, decisions in favour of multinational companies versus local infringers have shown the judiciary’s neutrality over time. In criminal instances, the Indian government, like other countries, takes action. Nevertheless, in most cases, these actions are the consequence of rights holders’ submitting complaints to courts or police agencies. Criminally prosecuted infringers risk much harsher consequences, including fines and prison time. Mediation or communication with an infringement are examples of alternative dispute resolution procedures that may be effective. 

Process in the Case of IPR Infringement

Intellectual property is something that belongs to you. Infringement is described as using someone else’s intellectual property without their consent. When someone does anything ultra vires, he is breaking the law. Infringement is defined as “a crime that is not as severe as a felony.” Infringement of intellectual property may take many forms, including trademark infringement, copyright infringement, patent infringement, and so on. The civil and criminal remedies stated in these statutes are critical for the enforcement of IP rights. In this framework, the judiciary’s primary role is to offer legal redress for infringements of people’s personal and property rights. Intellectual property rights infringement is regarded as a tortious invasion of property. In matters involving the breach and/or infringement of intellectual property rights, Indian courts have the authority to grant a remedy. The court not only decides on intellectual property cases but also interprets numerous pieces of IP legislation to help people understand them better. In India’s multiple IP laws, civil and criminal remedies for IP rights enforcement are mentioned. These civil and criminal remedies are separate and different from one another. They may also be accessible at the same time. In this light, it’s also worth noting that the provisions of the Indian Evidence Act and the Arbitration and Conciliation Act may be used to settle IP-related matters. Expert opinion can also be sought under section 45 of the Indian Evidence Act to understand a point crucial to a case or to understand some facts pertaining to a technology or art.

Civil Damages

In the event of IP infringement, legal remedies may be sought by bringing an action in the appropriate court for infringement and/or passing off (in the case of unregistered trademarks). The civil relief listed below may be granted:

• An injunction prevents one of the parties in a case from taking certain actions. An injunction is issued if the plaintiff proves that the prima facie case is in his favour.
• A cost-and-damage award: A cost-and-damage award is a pair of mutually incompatible remedies. Damages are awarded to compensate the plaintiff for losses sustained as a result of the defendant’s infringement, whereas real profits are awarded to the plaintiff as a second measure.
• Tracing orders: an infringer might be ordered to reveal information such as where he got his supply of infringing items under tracing remedies. It is considered contempt of court if you do not submit this information.

Punitive Measures

Only trademarks and copyrights are subject to criminal penalties in India. Section 63 of the Copyright Act of 1957 defines “offenses of violation of copyright or other rights conferred by the act” as “offenses of violation of copyright or other rights conferred by the act.”If found guilty of copyright infringement, it stipulates a sentence of imprisonment of not less than 6 months, which may be extended up to 3 years, and a fine of not less than 50,000 rupees, which may be increased to 2 lakh rupees. According to Section 63A of the Copyright Act of 1957, this term and fee may be enhanced.

India’s possible difficulties and how to address them

India’s intellectual property legislation encompasses various areas of IP protection. The law covering all sorts of intellectual property has been changed or republished in recent years. Regardless of the fact that Indian intellectual property law is extensive and generally similar to European IP regulations, there are still substantial concerns concerning IP enforcement. Bureaucratic delay is a major cause of concern in enforcement, given the pending cases across both criminal and civil courts. As a result, litigation might extend for up to five years. Transparency is also poor, particularly at the local government level. India’s IP ecosystem is remarkable for the large number of small businesses infringing on IP rights. As a result, seizures are often small, needing a long-term and monetarily costly effort to have an impact.

Being prepared is the most crucial way to prevent complications while protecting IP rights in India. To ensure that you are aware of any possible problems, you should:

1. Seek early guidance on how to protect your IP from Indian IP rights specialists—prevention is better than cure.
2. Research Indian IP rights and protection in general by consulting publications and websites.
3. Perform risk assessments and due diligence checks on any companies or people with whom you do business.
4. Seek professional counsel from other professionals, such as attorneys and local diplomatic missions.
5. Speak with other companies in India that are already performing comparable work.
6. Speak with your agents, distributors, and suppliers about the best ways to protect your rights.
7. Consult a trade mark or patent attorney to discover whether your own trademarks or other intellectual property have been registered in India before.
8. Stick to tried-and-true company practises.

Make sure that everyone in your company is responsible for protecting your intellectual property. Many companies rely on the integrity of their intellectual property, which is often one of their most valuable assets. As a result, both management and staff, as well as other organizations with whom they have contact, should pay close attention to it.

Conclusion

As a result, all people and enterprises should register their IP, which will allow them to generate extra cash while also protecting their ideas and innovations from being stolen by others. The problem is that IP networks are still predominantly national or regional in nature. Another significant problem with IP is that rights awarded in one jurisdiction may not be applicable in another. This emphasizes the need for all nations to enact effective IP protection legislation. The government must develop appropriate IP regulations for both people and businesses that are neither too stringent nor too lenient. The government must also strengthen the general structure in order to ensure the country’s long-term social and economic prosperity. As a result, it is clear that IP protection is critical in the present day.

This article is authored by Arnav Laroia, student at NLU, Jodhpur

References

1. http://www.legalservicesindia.com/articles/impip.htm
2. https://www.mondaq.com/india/trademark/1020686/significance-of-intellectual-property-rights-in-current-era#:~:text=The%20need%20for%20strong%20IP,be%20quickly%20replicated%20by%20anyone.
3. https://www.inquartik.com/blog/basic-intellectual-property-rights/
4. https://www.wipo.int/about-ip/en/
5. https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm

What is the difference between Copyright and Intellectual Property Rights?

Intellection Property Rights (IPR) is an overarching term that includes various rights, design rights, performance rights, trademarks, patents and copyright. Copyright exists once an idea is written down or recorded and is an automatic right in UK law. It applies to any original written, dramatic, musical, artistic materials, or a film. Any material to which copyright applies is known as a copyright work.

What is a trademark?

A trademark generally is a sign or symbol (but can be words, phrases or designs) that create an individual identity to separate the trademark from its competitors.

What are the benefits of having a registered trademark?

A registered trade mark may put people off using your trade mark without your permission. It makes it much easier for you to take legal action against anyone who uses your trade mark without your permission. It allows Trading Standards Officers or Police to bring criminal charges against counterfeiters if they use your trade mark. It is your property, which means you can sell it, franchise it or let other people have a license that allows them to use it.

If we develop an idea with a company or academic partner who owns the intellectual property?

It is important that intellectual property is considered at the beginning of a relationship with a company or academic partner – so that both partners are protected and benefit from the partnership appropriately. Agreement should be reached in regard to ownership before the project starts (ownership could, for example, be shared).

What’s the difference between foreground and background IPR?

Collaborative projects with businesses and external organizations have three types of IP to be considered and agreed before the project commences:
A. Background IPR – IPR relating to the Project owned or created or developed by a party other than during the course of the Project
B. Foreground IPR – IPR arising wholly out of the Project which are owned or created on behalf of a Party except for University Foreground IPR

C. University Foreground IPR – IPR created during the course of the Project by the
University without contribution by the KTP Associate or Company

Background IPR remains with the party introducing it to the Project whereas the Foreground IPR remains with the party producing it