INTELLECTUAL PROPERTY RIGHTS AND IPR ENFORCEMENT

Author- Rutveek Jawalekar, Government Law College Mumbai.

A. WHAT IS INTELLECTUAL PROPERTY? [[1]]

Many of you may already know the answer to this question!

We know that the inventor of a machine, the author of a book, or the writer of music usually ‘own’ their work. From this ownership, certain consequences flow and you probably have been made aware of the fact that we cannot just copy or buy a copy of their works without consideration of their rights.

Now, Intellectual Property laws can:

· Protect books, newspapers, films, recordings, paintings, photographs, sculpture, performances, broadcasts, computer programs, databases, etc.

· Brands and logos – by means of trademarks

· Products whose reputation derives from their place of origin – by means of geographical indications

· Inventions – by means of patents etc.

The term IP refers to novel, value-adding creations of the human mind, a result of human creativity, originality and inventiveness. Some of the compelling reasons for which IP rights should be protected are:

· In public interest and development, IP protection urges creation of new works in the areas of technology and culture.

· The protection of IP rights encourages the commitment of additional resources for further innovation.

· The endorsement and protection of Intellectual Property spurs economic development, creates new jobs and industries, and enhances the quality of life.

B. RIGHTS CONFERRED BY VARIOUS TYPES OF INTELLECTUAL PROPERTY.

Since IP is afforded protection by law, it enables people to earn not only money but also worldwide recognition from what they create. In short, the IP system aims to promote an environment in which creativity and innovation prosper. By being aware about IP as a core business asset will make the right holders less susceptible to IP abuses.

Following are some of the rights associated with some of the relevant IP rights for business.

I. TRADEMARKS

· A trademark registration confers an exclusive right to the use of the registered mark. This implies that the trademark can be exclusively used by the owner or any other party who is licensed for use in return of some consideration.

· Registration provides legal certainty and reinforces the position of the right holder.

· In case of unregistered trademark, the owner has the right to the common law remedy of passing off. II. PATENTS

· A patent confers upon the patentee or assignee an exclusive right to exploit the patent and sue for any form of infringement.

· The patentee also has a right to transfer the patent through a license or an assignment.

III. INDUSTRIAL DESIGN

· The owner of a registered industrial design has the right to prevent any third party from making, selling or importing bearings a design which is a copy of the protected design, when such acts are undertaken for commercial purposes.

IV. COPYRIGHT

· There are two types of rights under copyrights.

a) ECONOMIC RIGHTS.

· Economic rights are those rights which allow the owner to derive financial rewards from the use of their works by others.

b) MORAL RIGHTS.

· Moral rights protect the non-economic rights of the author.

C. IP RIGHTS ENFORCEMENT IN INDIA

It has been observed that the Indian Courts are very active in granting equitable reliefs like injunction, considering the effect of the common law principles.

In India, protection of Intellectual Property is available under civil as well as criminal law mechanisms. The procedure for the proceedings is set out in IP laws and the Customs Act. Importantly, both civil and criminal remedies can be availed simultaneously in India (wherever applicable) as both can coexist. It is also important to note that civil and criminal remedies are available Copyrights, Trademarks, Semiconductor Integrated Circuits, Geographical Indicators, protection of plant varieties etc but not for Patents and Designs. The Patent Act, 1970 and the Designs Act, 2000 do not provide for criminal remedies.

In civil litigation, it is rare to recover large damages and punitive damages against an infringer. But a criminal action acts as a deterrent against the accused as well as anyone in general market who tries to infringe. However, if the infringer is known, a civil litigation can be launched as the chances of getting temporary injunction becomes high.

D. WHERE CAN A SUIT BE FILED?

In India, a suit may be initiated in any court, subject to the court’s territorial and pecuniary jurisdiction. Generally, the suits are filed in the lowest courts i.e. the District and Sessions court. Cases can also be filed directly in the High Court provided that the Court has Original Jurisdiction. India Performing Rights Society Ltd. Vs Sanjay Dalia and another[2] is a landmark case where the apex court interpreted both the sections mentioned below in a purposive manner.

a. Section 62 of the Copyrights Act,1957,

b. Section 134 (2) of the Trademarks Act, 1999.

The Supreme Court held that, if a plaintiff resides or carries on a business or personally works for gain at a place where the cause of action, wholly or in part, has arisen, he has to file the suit at that place and not where it has a branch or associated office.

There are effective means for the execution of court orders including contempt of court, which provides punishment such as fine, imprisonment or both. Local Commissioners are appointed by the courts for the execution of the court orders. In India the State Governments have also formed Special IP cells to deal with offences relating to the infringement of IPR.

E. INTERNATIONAL TREATIES FOR THE ENFORCEMENT OF IPR.

Following are the resolutions adopted by the member state of the various conventions:

1. TRIPS AGREEMENT.

The Agreement on Trade-Related Aspects of Intellectual Property Rights sets out general principles, which provide for necessary remedies while ensuring that there are no obstacles to legitimate trade and providing necessary safeguards against the misuse of enforcement statutes. The general set of principles include fairness, transparency, due process and balance etc and apply to all civil and administrative procedures.

2. THE PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY

Any person from a signatory state can apply for a patent or trade mark in any other signatory state and will be given the same enforcement rights and status as a national of that country would be.

3. THE BERNE CONVENTION

Each member state recognizes the copyright of authors from other member states in the same way as the Copyright of its own nationals.

4. THE MADRID PROTOCOL

Any person can file a single trade mark application at their national office that will provide protection in multiple countries.

5. THE PATENT COOPERATION TREATY

This is a central system for obtaining a bundle of national patent applications in different jurisdictions through a single application.

REFRENCES

1. WWW. WIPO.INT (LAST ACCESS: 14.22, 14/06/2020)

2. HANDBOOK OF INTELLECTUAL PROPERTY RIGHTS, WIPO

3. INTELLECTUAL PROPERTY RIGHTS, CLRS ACADEMY.

4. WWW.IPINIDA.NIC.IN, HISTORY OF INDIAN PATENT SYSTEM. ((LAST ACCESS: 14.22, 14/06/2020).

[1] WIPO handbook, DL101, page 1. [2] MPR 2007 (3) 204