Examining the IP enforcement scenario in India

Acquisition of IP rights is of little use if such rights cannot be exploited to their full potential. The effective exploitation of such rights is pertinently necessary in view of the influx of brands and products into the market. As the variety of goods available is on the rise, the numbers of fake imitations are also significant.

India, awakening to this rampant misappropriation, is continually strengthening its intellectual property enforcement mechanism. Owners of intellectual property in India are increasingly taking active steps to protect their assets – both tangible as well as intangible. This is reflected not merely in the rising number of IP registrations but also in the fact that both Indian and foreign corporations having a market in India are now keeping a keen eye on their products, processes, marks, advertising campaigns, packaging and so on.

Upsurge of fakes

With the development of reproduction and broadcast technology, there has been an upsurge in the number of “pirated” works on the market. In this regard, the software industry seems to top the list, with companies suffering losses amounting to over 29% of their total market share. The entertainment and software industries, being the hardest hit by piracy activities, find the copyright law by itself insufficient in countering these activities. Also, the advent of fake or “counterfeit” goods of very low quality that aim to take advantage of the reputation of a well-known product has become a point of concern for enterprises operating in India. The same is also true of patent and designs where unprecedented violations to right holders are taking place.

Legislation

In this respect, the remedies provided under each relevant item of legislation vary in accordance with the prevalence and ease of violation of such rights. Therefore, in addressing such violations, general laws governing civil and criminal proceedings come into play alongside the statutes governing the respective intellectual property regimes. The Code of Civil Procedure, 1908; the Criminal Procedure Code, 1973; and the Indian Penal Code, 1890, as amended from time to time, must be read alongside the relevant intellectual property statute to make out a case of violation of a party’s intellectual property. The number of corporations entering litigation is also on the rise, with a significant number of actions being initiated by foreign corporations.

Enforcement

Criminal enforcement of copyright and trademarks has now been made owner-friendly through the appointment of specialized IPR cells in the crime branches of various local police headquarters. These cells have been constituted in order to assist the owners of IP rights, by accepting their complaints, conducting search and seizure operations and completing other mandatory procedural formalities. The government in this endeavour has also introduced the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, authorizing customs officials to interdict shipments carrying infringing goods or works. There is an increasing move towards enforcing rights in intellectual property even in small towns. While infringers may be more accessible and easier to nab in these regions, they have also been observed to generate leads towards capturing the larger hubs of pirated goods and conspirators.

External agencies

Businesses, industries and their associations either individually or collectively have kick-started campaigns to raise their voice against intellectual property violations. One strategy they have employed is to engage external agencies to generate concrete information regarding the misappropriation of their goods. Some of them then liaise with officials from the police force physically to conduct raids and nab the offenders. To improve the working of the IP regime, bodies such as the Federation of Indian Chambers of Commerce and Industry, alongside the Department of Industrial Policy and Promotion and the Ministry of Commerce and Industry are working towards establishing a working group to prevent illegal activities. Further, sector-specific bodies such as the Indian Music Industry have been instituted to prevent and curb piracy in the Entertainment sector.

Enforcement improves

The courts also seem to have adopted a progressive approach towards the enforcement of intellectual property rights. Having experienced a remarkable improvement in the civil enforcement system, high courts in India are progressively applying internationally established principles in IP infringement cases. Jurisprudence with respect to the award of damages has been completely overturned in the recent years, with a prominent role emerging for exemplary damages.

The government is taking care to ensure that enforcement measures are duly incorporated into the scheme of any new items of legislation. The Public Funded R&D (Protection, Utilization and Regulation of Intellectual Property) Bill 2007 has been supplemented with penal provisions to prevent misuse of intellectual property by scientists. The Bill seeks to encourage public sector research organizations to patent their inventions and offer them to industry for commercialization on a revenue-sharing basis.

The Bill seems to be aiming at balancing intellectual property concerns by on one hand allowing research and development institutions to acquire intellectual property pro- tection in countries of their choice, while on the other hand incorporating penal provisions to tackle cases of infringement.

Sure step

In this light it seems that India, in realization of the repercussions of the misappropriation of intellectual property, is taking all possible measures to prevent the same. The existing legislative framework, augmented by enforcement actions taken by administrative and monitoring agencies, is a sure step towards India becoming a safer location for one’s intangible assets.

Manisha Singh Nair is a partner of Lex Orbis, an intellectual property practice law firm headquartered in New Delhi.