Intellectual Property


The twenty-first century witnessed the emergence of “Intellectual Capital” as a key wealth driver of international trade between countries, thanks to rapid globalization and liberalization of economies the world over. Intellectual property rights have become an irreplaceable element of India’s business fraternity, whether in terms of new statues or judicial pronouncements. India’s consent of the WTO (World Trade Organization) agreement has paved the way for its compliance with TRIPS (Trade Related Aspects of Intellectual Property Rights). This article explores the intellectual property laws in India, with specific emphasis on the amendments brought forth by TRIPS.

 Patent - In India, the law governing patents is the Patents Act, 1970 (“Patents Act”). In India’s continued efforts to comply with it’s commitment under TRIPS the Patents Act has been amended thrice since 1995, by the Patents (Amendment) Act, 1999(“First Amendment”), the Patents (Amendment) Act, 2002 (“Second Amendment”) and Patents.

Patent was first introduced to the realms of Indian business in the year 1911 courtesy of the Indian Patent and Designs Act, 1911. This Act was superseded in the year 1972 with the enforcement of the Patents Act, 1970. The Act, which is now the governing Act for Patents in the country till now, went through an amendment in 2005 to be compliant with the TRIPS agreement and is now known as the Patents (Amendments) Act, 2005. The Amendment oversaw the extension of product patent to all fields of technology including foods, drugs, chemicals, and micro-organisms. Furthermore, the provisions pertaining to Exclusive Marketing Rights (EMRs) has been repealed and a provision enabling grant of a compulsory license has been framed as its replacement

Trademarks- In India, trademarks are protected both under statutory law and common law. The Trade and Merchandise Marks Act, 1940 (“TM Act, 1940”) was the first law in this regard in India, which was replaced later by the TM Act, 1958. The Trade Marks Act, 1999 (“TM Act”) - which has replaced the TM Act, 1958 - came into effect on September 15, 2003 and is in compliance with the TRIPS obligations

India’s trade mark laws consist of the 1999 Trade Marks Act and the Trade Marks Rules of 2002 and 2017.

The regulatory authority for patents is the Controller General of Patents, Designs and Trade Marks under the Department of Industrial Policy and Promotion. The police now have more robust powers in enforcing trade mark law, including the ability to search premises and seize goods suspected of being counterfeit without a warrant. But these powers are tempered by the requirement for the police to seek the Trade Mark Registrar’s opinion on the registration of the mark before taking action. This adds to the delay and may result in counterfeit goods being removed or sold.

Trade names also constitute a form of trade mark in India, with protection, irrespective of existing trade names, for those wishing to trade under their own surname. Because of the widespread practice of ‘cybersquatting’ – the registration in bad faith of marks by third parties registering domain names for certain well known marks in order to sell them to the original rights owners – it is advisable for rights owners to register their domain names in India as trade marks as soon as possible.

Registration takes up to two years. A trade mark in India is valid for ten years and can be renewed thereafter indefinitely for further ten-year periods.

Copyright -   The Copyright Act, 1957 (“Copyright Act”), supported by the Copyright Rules, 1958 (“Copyright Rules”), is the governing law for copyright protection in India. Substantial amendments were carried out to the Copyright Act, in early 2012 (“Amendment”). Some of the salient amendments have been discussed in this section.

India is a signatory to the Berne Convention on copyright. However, it may be a good idea to register your copyright as doing so may help to prove ownership if there are criminal proceedings against infringers.

In most cases though, registration is not necessary to maintain a copyright infringement claim in India.

Registration is made, in person or via a representative, with the Copyright Office. Since 2016, copyright policy was moved to India’s Ministry of Commerce and Industry. All IPRs are now administered by the Department for Industrial Property and Promotion (DIPP).

Internet piracy of films, music, games and software is an issue in India, as is unauthorised copying of physical books

Design- Industrial designs in India are protected under the Designs Act, 2000 (“Designs Act”), which replaced the Designs Act, 1911. The Designs Act has been in effect since May 11, 2001. The Designs Rules, 2001 have been framed under the Designs Act. The Designs Act incorporates the minimum standards for the protection of industrial designs, in accordance with the TRIPS agreement. It provides for the introduction of an international system of classification, as per the Locarno Classification.

A ‘design’ under the Designs Act [section 2(d)] means and includes ‘only the features of shape, configuration, pattern, ornaments or composition of lines or colour , applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to an are judged solely by the eye’.

An application for registration of an industrial design is to be made to the Controller- General of Patents, Designs and Trade Marks. However, a design shall only be considered for registration if – (a) it is novel and an original innovation i.e., it has not been produced before or reproduced by anyone; (b) it has not been disclosed to the public anywhere in India or outside the jurisdiction of India; and (c) it can be easily distinguished from other known designs.