Intellectual Property Laws in India

Intellectual property rights have grown to a position from where it plays an important role in the global economy’s development over the past two decades. In 1990s, laws and regulations were strengthened I this area by many countries unilaterally. In the multilateral level, there was enhanced protection and enforcement of IPRs to the level of solemn international commitment because of the successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization.

There is a vast domain of intellectual property. Designs, Copyrights, and Patents Trademarks since a long time have received recognition. Newer forms of the protection are also developing particularly encouraged by the stimulating emergence in technological and scientific activities.

THE CONCEPT OF INTELLECTUAL PROPERTY

The intellectual property’s concept is not a new one as Renaissance northern Italy is thought to be the framework of the intellectual property system. A Venetian Law of 1474 made the first methodical attempt to protect inventions in a form of patent, which allowed right to an individual for the first time. The invention of the printing press and movable type by Johannes Gutenberg around the year 1450, helped in the origin of the first copyright system in the world.

By the end of 19th century, new creative ways of manufacture aided caused large-scale industrialization accompanied by fast growth of cities, the investment of capital, expansion of railway networks, and nationalism led many countries to establish their modern Intellectual Property laws. In this point of time, the International Intellectual Property system also began to take shape with the creation of the Paris Convention for the Protection of Industrial property in 1883 and the Berne Convention for the protection of Literary and Artistic Works in 1886. The evidence underlying Intellectual Property throughout its history has been that the rewards and credits related with ownership of inventions and creative works encourage further creative and inventive activity that, motivates economic growth

The Convention establishing the World Intellectual Property Organization (1967) gives the following list of the subject matter protected by intellectual property rights:

trademarks, service marks, and commercial names and designations;
inventions in all fields of human endeavour;
industrial designs;
protection against unfair competition; and
“all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”
literary, artistic and scientific works; scientific discoveries;
performances of performing artists, phonograms, and broadcasts;

The role and importance of the intellectual property protection has been formed in the Trade-Related Intellectual Property Systems (TRIPS) Agreement, with the establishment of the World Trade Organization (WTO). At the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994, it was negotiated.

The TRIPS Agreement came into effect on 1st January 1995, is considered till date most complete multilateral agreement on intellectual property. The areas of intellectual property it covers are as following:

Trademarks which include service marks as well;
Industrial designs;
Copyright and related rights (i.e. producers of broadcasting organisation, the rights of performers);
Geographical indications which include appellations of origin;
The lay-out designs (topographies) of assimilated circuits;
The information which are not closed which includes test data and trade secrets;
Patents which include protection of new varieties of plants;

INTELLECTUAL PROPERTY SYSTEM IN INDIA

In 1485 the first system of protection of intellectual property came in the form on Venetian Ordinance historically. In England in 1623 it was followed by Statue of Monopolies, which extended rights of patents for Technology Inventions. In 1760, patent laws were introduced in The United States. Between 1880 and 1889 patent laws of most European countries were developed. In the year 1856 in India Patent Act was introduced which remained in force for more than 50 years which was later modified and revised and was called “The Indian Patents and Designs Act, 1911”. A complete bill on patent rights was enacted after Independence in the year 1970 and was called “The Patents Act, 1970”.

Specific statues protected only specific type of intellectual output; till very recently only four forms were protected. The protection was in the form of grant of designs, patents, trademarks and copyrights. In India, copyrights were regulated under the Copyright Act, 1957; trademarks under Trade and Merchandise Marks Act 1958; patents under Patents Act, 1970; and designs under Designs Act, 1911.

The establishment of WTO and India also being signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), many new legislations were passed for the protection of intellectual property rights to meet the obligations internationally. These included the following: Designs Act, 1911 was changed by the Designs Act, 2000; Trade Marks, called the Trade Mark Act, 1999; the Copyright Act, 1957 was revised number of times, the latest is known as Copyright (Amendment) Act, 2012; and the recent amendments made to the Patents Act, 1970 in 2005. Other than this, plant varieties and geographical indications were also enacted in new legislations. These are called Geographical Indications of Goods (Registration and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001 respectively.

Intellectual property rights have developed to a stature from where it plays an important role in developing economy globally, over the last fifteen years. In 1990s, laws and regulations were strengthened I this area by many countries unilaterally. In the multilateral level, there was enhanced protection and enforcement of IPRs to the level of solemn international commitment because of successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in World Trade Organization. It is felt strongly that under the competitive environment globally, stronger IPR protection rises the incentives for innovations and raises returns to international transfer of technology.

Scope of Coverage

Trade Marks
Patents
Copyrights
Industrial designs
Geographical indications
Layout designs of integrated circuit
Varieties of plant
Information Technology and Cybercrimes
Data protection

Governing Regulations

Trade Marks Act, 1999
The Patents Act, 1970 (amended in 2005)
The Copyright Act, 1957
The Designs Act, 2000
The Geographical Indication of Goods (Registration and Protection) Act, 1999
The Protection of Plant Varieties and Farmers Rights Act, 2001
The Information Technology Act, 2000

Different Types of Intellectual Property Rights

The Trademark Act

The Trademark Act is the law dedicated for the regulation of registration and legal protection of trademarks in India. Trademarks are symbols, words, phrases, or device marks used to identify and distinguish the identity of an individual or business entity. Some examples of Trademarks are brand names, legal names, trade names, logos, label marks, slogans, and also sounds & combinations of colors.

The primary objective of the Act is to protect such trademarks against misuse, forgery, and deception in the marketplace, by giving their owners the exclusive rights to their ownership and usage. In other words, the Act offers remedies to the owners of registered trademarks against a potential theft or infringement of IPR rights.

Besides, the Act also defines what can and cannot be registered as a trademark and sets out the procedure to be followed for trademark registration in India. Once a trademark is registered, it remains valid for a period of ten years, after which it can be renewed by following a separate renewal process, also mentioned in the Trademark Act.

The Copyright Act

The Copyright Act is a kind of IP law that governs the registration and legal protection of copyrights in India. These rights are defined under the Act as an exclusive right to reproduce, distribute, and perform an original work of authorship i.e. original piece of literature, music, script, song, drama, art, cinematographic film or audio tune, etc.

Although registration under the Copyright Act is not mandatory for Copyright protection, it can still be obtained for availing certain benefits like possessing legal evidence for ownership of the copyrighted work and being enabled to sue any third party for the infringement of rights provided to the owner under the Copyright Act.

As far as the validity of the Copyright Registration is concerned, for literary, dramatic, musical, and artistic works (other than photographs), the registration lasts for the lifetime of the author plus 60 years after their death. In the case of photographs, the validity of the copyright lasts till the lifetime of the author and additionally 60 years more after their death. However, if the photograph is published, in that case, the copyright lasts for 60 years from the publication year. In the case of cinematographic films, sound recordings, and government works, the copyright lasts for 60 years from the year of publication. Upon expiration of the copyright term, the work comes to the public domain which can be freely used by any individual/business without requiring any kind of legal permission or authority and is not liable to pay anything to the original copyright owner.

The main objection of the Copyright Act is to encourage creative or innovative practices across the nation along with dissemination of knowledge by offering incentives to the creators who are working towards generating more new original, unconventional and useful works.

The Design Act

The Industrial Design Act is a law that governs the registration as well as protection of industrial designs in India. In this law, an Industrial design is defined as a unique and specific feature of shape, configuration, pattern, ornamentation, or composition of lines and colors or color combination of any product in two-dimensional or even three-dimensional.

The Act fosters innovation and creativity in industrial design by providing legal protection to the owners of such designs against any fraud or misuse. Its purpose is to ultimately incentivize designers and manufacturers to invest time, resources, money and resources into creating new designs at the end of the day.

Apart from that, it sets out the need for an industrial registration design including that the design must be novel, original and must not be formerly published or used in India. The process of filing this registration involves submitting an application with the Indian Patent Office with the required payment fees. Upon successful registration, the owner of an industrial design will have the exclusive right to use his designs and prevent others from using it without permission for as long as 10 years from the date of Registration.

The Act also provides for the enforcement of IP rights of the Industrial design, through civil and criminal proceedings. In the case of infringement of his IP rights, the design owner has the legal right to claim remedies from the infringer such as injunctions, damages, and account of profits. In addition, the Act also has the provision of criminal penalties, including fines and imprisonment, for intentional infringement of rights by an individual or business.

The Patent Act

The Patent Act is a law governing the registration and protection of patents in India. A patent is a legal right granted to the investors or creators of a new, useful, and non-conventional product or process, the exclusive rights to produce, use and sell their invention for a certain predefined period. The core purpose of this act is to promote innovation and technological advancement in India by offering new & innovative product owners a legal structure granting them legal rights to safeguard their innovations against any misuse or forgery.

The Act allows you to register your new or innovative creation with the Indian Patent Office and possesses requirements for patentability i.e. novelty, non-obviousness, and utility. On successful granting of the patent, it provides the owner with some exclusive right to use, manufacture, and/or sell the invention for a period of 20 years from the date of filing, and also makes sure that the renewal fees for the patent are paid every year.

The Act also offers the enforcement of patent rights through civil and criminal proceedings and sets out penalties for breaching those rights. In case of infringement of a patent, the patent owner can seek remedies i.e. damages, injunctions, and account of profits. On the other hand, the infringer will have to bear criminal penalties in the condition of intentional infringement of patent rights including fines and imprisonment.

FAQs

How can I enforce my intellectual property rights in India?

In order to enforce intellectual property rights in India, the first step is to collect sufficient evidence of the infringement. As per your intellectual property rights, legal actions such as sending cease and desist notices, filing infringement suits in civil courts or can also initiate criminal proceedings against the person/party primarily involved in infringement. Seeking guidance of an expert Intellectual Property attorney is advisable as he/she can help you throughout the whole procedure; from initiating to final verdict.

How can I protect my Intellectual Property before launching in the market?

Protecting your intellectual property before its launch in the market, the creator has to follow various steps. For Patents, it’s important to file a patent application before publicly disclosing the invention. For designs, it’s necessary to register them with the authorized intellectual property office that provides formal protection. However, copyright protection is automatically granted on creating any original work.