Intellectual property rights in India

This article was written by Shruti Goel, a student of Government Law College, Mumbai.

What is intellectual property?

Intellectual property(IP) refers to creation of mind, such as literary and artistic works, inventions, making symbols, designs, images, etc. used in commerce for which owners are granted certain exclusive rights for a specified duration. (1)When one invests lot of time, energy, money and other resources on cultivation of his knowledge towards a specific goal, he has legitimate right to fruits of his labor and thus, IPR provides a secure environment for investors, scientists, artists, designers, traders etc. to foster innovation and scientific temper. Moreover, India has been World Trade Organization(WTO) member which abide India to include Intellectual property rights in their national laws. Intellectual property can be both registered and unregistered. There are different types intellectual property rights like copyright, patents, trademarks, designs, etc.

Copyrights

Copyrights is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. Copyright come into existence as the work is created and no formalities are needed to acquire copyright. However, it is advisable to get it registered from the copyright office in India to ensure its evidentiary value. Upon registration, the work becomes a public record and makes it easier for the creator to make profits from his work. It also provides civil remedies, which make infringement, a cognizable offence which may land the offender in the jail for not less than six months and a fine up to Rs200,000. (2)

At present the Copyright Law in India is governed by Copyright Act,1957 (amended in 2012) along with Copyright Rules,2013. Indian copyright law is in parity with the international standards of Trade related-aspects of intellectual property rights (TRIPS). India is also a member of Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention. Thus, work created in other member state is also protected in India. India is also an active party of World Intellectual Property Organization (WIPO) and thus have to abide by their standards. (3)

Landmark judgement

DU photocopy case – In a recent case where a suit was filed by three international book publishers against the sale of photocopied books and material by DU’s photocopy shop, a landmark verdict was witnessed. Delhi High Court held that “copyright in a literary work is not an inevitable, divine or natural right” and set a milestone for applicability of copyright law in educational fields in India. It was said that photocopy material was not used for commercial exploitation but was used only for study purpose.  Moreover, it stated that copyright law should increase knowledge not impede it.

Trademark

A trademark is a sign which differentiate the goods or services of one company from other company. (4) With the advent of globalization, trade name, brand name, etc. have attained immense importance in today’s world and require minimum standards for protection which are uniform and in compliance with Trade related-aspects of intellectual property rights (TRIPS) Agreement. Trademark Act,1999 govern the trademark act in India.

Landmark judgement

London Dairy v. London Derry case– The Bombay High court refused to grant relief to the owners of the London Dairy brand of ice cream who alleged trademark infringement by Parle products. The only basis for injunction was phonetic similarity between the marks of the defendant and plaintiff. The Bombay High Court observed that since phonetic similarity was the only basis of this case a strong prima-facie case has not been made out and there are not sufficient grounds to warrant an injunction in favor of the Plaintiff. (5)

Patent

Patent refers to enforceable exclusive rights granted to inventor in return of making his/her invention public. An inventor can assign an appointee who will incur both liabilities and rights of the patented good/process. patent laws in India are governed by The Patent act,1970. It is amended from time to time to make it compliant with TRIPS Agreement. Amendment in 2005 made patent in all field of technology (food, drugs, etc.)  available. This made all industries competitive in nature and thus every industry is willing to invest money in inventions and ideas. India is also a member of Paris convention and Patent Cooperation Treaty which abide India to follow minimum suggested standards.

In India patents is granted for a period of 20years. But sometimes some modifications are done to the patented good/process which extends period for which patent is available. Patent act has a provision to ensure this right is not misused that states that modification can extend the period of patent only if it add any value to it. (6)

Landmark judgement

Merck Sharp v Glenmark case– In this case, Delhi High Court restrained Mumbai based Glenmark pharmaceuticals Ltd. from making, selling and distributing its anti-diabetic drugs Zita and Zita-Met on the ground that they infringed the patent rights of US based pharmaceuticals company Merck Sharp and Dohme Corp, manufacturing Sitagliptin under the brand name Janumet and Januvia. (7)

Industrial design right

Industrial design is a type of intellectual property right that gives exclusive right to selected people to make and sell articles that embody the protected design. This right is provided for a period of 10 years but can be extended up to 15 years. Industrial design is governed by Design Act,2000 and Design Rules, 2001. (8)

Landmark judgement

 Dabur India Ltd. v. Rajesh Kumar and Ors case- In this case a suit was filed for permanent injunction against Rajesh Kumar and his co-parties for infringing Dabur’s trade mark and its registered design while passing off their goods as those of Dabur. Dabur claimed that the bottles of their ‘Dabur Amla Hair oil’ were distinctive and have unique and original design and was registered under Design Act, 2001. They also claimed that the bottles have ‘Dabur’ trademark embossed at their bottom and the defendant was selling it for counterfeiting their ‘Dabur Hair oil’. But it was observed that the claims of the plaintiff were baseless and bottles have common design and are commonly used by other companies too. (9)

Conclusion

The importance of IPR in today’s world of globalized trade is known to everyone. IPR help promoting investment in research and development and help firms realize more value of innovations by protection their rights through IPR. India too has realized the importance of IPR and has been a part of number of international IP treaties and conventions. Special IP cells are set up to work on infringement of IP rights. Indian firms are taking steps to protect their IP rights. The growth of India in IPR is noticeable and it can’t be denied that in coming years, India will be at par with developed countries in the field of IPR.

References

1. lee, wendy. IPOS. [Online] [Cited: november 13, 2016.] http://www.ipos.gov.sg/AboutIP/TypesofIPWhatisIntellectualProperty.aspx.
2. Vijay Pal Dalmai. copyright law in india. mondaq. [Online] june 25, 2015. [Cited: november 14, 2016.] http://www.mondaq.com/india/x/406982/Licensing+Syndication/Copyright+Law+In+India.
3. Anonymous. copyright laws in india. S.S. Rana and co. [Online] [Cited: november 14, 2016.] http://www.ssrana.in/Intellectual%20Property/Copyright/Copyright.aspx.
4. Trademarks. wipo. [Online] [Cited: november 13, 2016.] http://www.wipo.int/trademarks/en/.
5. International Foodstuffs Co. Llc vs Parle Products Pvt Ltd. 2497 of 2012, s.l. : Bombay high court, 2016.
6. patent law in india. gk today. [Online] september 10, 2016. [Cited: november 14, 2016.] http://www.gktoday.in/blog/patent-law-in-india/.
7. Merck Sharp & Dohme Corporation & … vs Glenmark Pharmaceuticals Ltd. . 9827/2013, s.l. : Delhi high court.
8. What is Industrial Design protection and how can one protect their designs? your story. [Online] [Cited: november 15, 2016.] https://yourstory.com/2015/07/what-is-industrial-design-protectiontheir-designs/.
9. Dabur India Limited vs Mr. Rajesh Kumar And Ors. 2008 (37) PTC 227 (Del.), s.l. : Delhi high court.