What is Intellectual Property Right (IPR)?
Dr Dipak Nath
Continued from prev issue
Registering and enforcing intellectual property rights in India: To enjoy most types of Intellectual Property Rights (IPR) in India, we should register them. For patents, individual registrations must be made in India, but for rights other than industrial designs one can apply under the terms of the Patent Cooperation Treaty, which is usually easier and quicker. For trademarks, one should register them within India, either through the domestic trade mark system or under the Madrid system. For copyright, no registration is required but registering copyrights with the copyright authorities is advisable.
‘Priority rights’ under the Paris Convention can help in the local registration of trademarks, designs and patents by allowing rights previously registered elsewhere to become effective in India, if filed within a time limit. IPR 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 one can unlikely to recover large damages, and punitive damages against an infringer are rare. However, if anyone 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 piracy and trade mark infringement (which come under criminal litigation); less so in patent cases. 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 infringers carry the prospect of much harsher remedies, including fines and imprisonment. Mediation or negotiation with an infringer can also be effective as an alternative form of dispute resolution. The Civil Procedure Code provides for a formal mediation process.
Potential problems faced in India and how to deal with them India’s intellectual property legislation covers every significant aspect of the protection of IP. The regulations relating to all forms of IP have been amended or reissued in recent years, mainly in response to India’s accession to the World Trade Organization in 1995.
Although Indian IP law is thorough and generally comparable with European IP laws, there are still significant concerns over IP enforcement. A major cause for concern in enforcement is bureaucratic delay, with a backlog of cases at both the civil and criminal courts. This means that cases can run for five years or more. There is also a lack of transparency, particularly at a local level. A significant feature of the IP environment in India is the large number of small players infringing IP rights. This means that seizures tend to be small, which requires a sustained and financially draining effort in order to make an impact. The most important way to avoid problems when defending IP rights in India is to be prepared.
(The writer is Deputy Director of Extension Education, Central Agricultural University, Imphal, Manipur)