Intellectual Property Rights are key to a company, creator and /or inventor profiting from their knowledge, innovation and/or creativity. International remedies that are both accessible and fruitful are essential protections needed by right holders, especially in the 21st century.Such a solid framework creates an environment that is instrumental to encouraging innovation and sustainable growth. In countries where there is uncertainty regarding such rights incentives are minimal. Globalization has brought about international supply chains and as such inadequate IP protection can dramatically affect business that in turn affects sustainable job creation and consumerism globally.
Many developing nations have made important reforms in respect of Intellectual Property because enforcement methods have not always been as solid as those found in the WTO’s Trade- Related Intellectual Property Rights (TRIPS) agreement. Such enforcement may often be restricted as a result of a seriously system. Below are some instances of a flawed system:
Globalization has allowed digital technology to cater for reproduction in bulk which is both cheap and good quality. In fact International trades in fake and illegally copied goods have been estimated to be valued at approximately $650 Billion.
Intellectual Property imports upon the owner of an innovation the right of ownership. This right allows the owner(s) to exclude another from the use of their innovation and/or use in specific activities unless otherwise authorized. Where these rights are contravened the person(s) with IP rights can seek infringement remedies for example:
However, in India, before taking legal action one is obliged to attempt to resolve any issues amicably. This is generally achieved by sending a cease-and-desist letter to the individual(s) or company that is allegedly contravening one’s IP rights. Should this fail then only can one enforce their IP rights in India, be it civilly or criminally.
India being a signatory to the Paris Convention for the Protection of Industrial Property, 1883 and the Patent Cooperation Treaty (PCT), 1970, a foreign entity can adopt any of the aforesaid routes for filing of application for grant of patent in India.
Civil: Infringement, Passing off
Interlocutory Injunction- “… in cases of infringement either of trademark or of copyrigh normally an injunction must follow. Mere delay in bringing the action is not sufficient to defeat grant of injunction in such cases… the grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark itself was dishonest”.Midas Hygiene Industries P. Ltd. V. Sudhir Bhatia &Anr. (2004) 3 SCC 90 Supreme Court
Lakshmikant V. Patel vs. Chetanbhat Shah (AIR 2002 SC 275) Supreme Court: “In an action for passing off it is usual, rather essential to seek an injunction, temporary or ad-interim proof of actual damage is not essential… likelihood of damage is sufficient an absolute injunction can be issued restraining the defendant from using or carrying on business under the Plaintiff’s distinctive trademark”.
Due to the increased usage of domain names there is a growth in disputes with IP rights. The WIPO Arbitration and Mediation Center is the first organization to deal with dispute resolutionin terms of Uniform Domain Name Dispute Resolution Policy (UDRP) as at December 1999 and Adopted by the Internet Corporation for Assigned Names and Numbers (ICANN), as per the suggestions stipulated in the Report of the First WIPO Internet Domain Name Process. The UDRP offers those with a trademark license an administrative path for systematic and structured resolutions where there are disputes as a result of: registration, use in bad faith or otherwise in regards to domain names which relate to those trademark rights.
An ex parte order is a judgment usually passed as against a defendant in absentia. The following are instances wherein this may occur:
The Anton Pillar Order allows for immediate search and seize of evidence (i.e.: that is without warning). This order is handed down where:
Anton Pillar v. Manufacturing Process (1976) RPC 719
An Ashok Kumar Order (also known as a John Doe Order) is an order that is handed down against unidentified defendants in order to prohibit them from possibly infringing any rights of the plaintiff.
The Indian Judiciary recognized the need to award victims of infringement with relief very early, as such the India Courts, in regards to trademark, copyright infringement, personal privacy and confidential information initially handed down orders under the umbrella of Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 (“CPC”).The Trademarks Act 1999 and the geographical Indication of Goods Act 1999 are relied upon under this umbrella. However this only worked to estop infringements but did very little in so far as instances where the damage has already been done. It is in instances like this when the Ashok Kumar Order comes into play.
The first such order was delivered in 2002 in Tej Television Limited vs. RajanMandal wherein many leading cable operators had transmitted Channel Ten Sports without proper authorization. In this instance the plaintiff (broadcaster of the Soccer World Cup 2002) had suffered immense strain to working relationships and losses.
The following are noteworthy features of the Ashok Kumar/ John Doe Order:
Onus of proof is on the complainant
OPPOSITION: IPR rights can be revoked or rectifited in the following instances: -
During the Process of Registration – By filing Opposition
After Registration – By filing Rectification Petition
As a member nation of the World Trade Organization (WTO) and a party to the Agreement on Trade Related Aspects of Intellectual-Property Rights (TRIPS) India is duty bound (Article 39 para 2) to provide a framework whereby secret/confidential information is protected. Despite numerous attempts by Indian Courts to place trade secrets under the scope of various existing legislation there has been no implementation of a single solid framework that properly neither defines nor protects trade secrets.
It is evident that there is a significant need for Industries and Government to unite in an effort to create a robust Intellectual Property Ecosystem, which will in turn encourage National Growth. The institutions of CIPAM(The Cell for IPR Promotion and Management), DIPP (the Department of Industrial Policy & Promotion), Ministry of Commerce & Industry and government of India not only aim to build a consensus but also share concerns regarding representations towards proactive resolution of intellectual property issues. It is important that agencies responsible for enforcement such as Police, Customs and the Prosecution recognize the importance of their position because effective IPR’s depend on effective enforcement.
In addition, the importance of IPR awareness has never been as high as it is today. When the above-mentioned agencies are knowledgeable about what it is they are protecting then only will their enforcement regime be stronger and systemized (especially their daily activities). A platform for experience sharing and efficient inter-agency coordination with respect to enforcement of IPRs will be achieved. When the lay man, businessman and/or professional knows abut IPR’s they will protect their innovation, which means that Indian Innovation will be globally recognized and respected. An efficient system of protection of IPR’s will encourage IP registration, which will then grow the national economy.
Conclusively, Intellectual Property and its Enforcement is key to every facet of a strong nation. India is growing in global recognition and in order to stay at the forefront of the economic fight that all nations are in it is important that India recognizes and respects IP so much so that enforcement is heightened.