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Last Updated: December 2010

India

Intellectual Property Rights

 

Intellectual Property Right in India is well established at all levels - statutory, administrative, and judicial - and covers the key areas, patents, trademarks, copyright or industrial design.

India ratified the agreement establishing the World Trade Organisation (WTO). This Agreement contains an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which came into force from 1st January 1995. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries, which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade.

The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets. Right to privacy, which is not protected even in some developed countries, has been recognized in India.

 

Trademarks

Trademarks have been defined as any sign, or any combination of signs capable of distinguishing the goods or services of one undertaking from those of other undertakings. Such distinguishing marks constitute protectable subject matter under the provisions of the TRIPS Agreement.

Trademark protection is good and was raised to international standards with the passage in 1999 of a new Trademark Bill that codified the use and protection of foreign trademarks and service marks.

India enacted the Trademarks Act 1999 and the Trademarks Rules 2002 (effective September 15 2003) to ensure adequate protection for domestic and international brand owners, in compliance with the TRIPs Agreement. Pursuant to the Trademarks Act, service marks can be registered. The act states that a trademark includes the shape of goods, their packaging and colour combinations. Further, the Trademarks Act gives protection to well-known trademarks and provides for the registration of convention applications, for which the priority deadline is six months. The term of a trademark has been increased to 10 years, renewable upon expiration.

 

Industrial Designs

Obligations envisaged in respect of industrial designs are that independently created designs that are new or original shall be protected. Individual governments have been given the option to exclude from protection, designs dictated by technical or functional considerations, as against aesthetic consideration, which constitutes the coverage of industrial designs.

The right accruing to the right holder is the right to prevent third parties not having his consent from making, selling or importing articles being or embodying a design, which is a copy or substantially a copy of the protected design when such acts are undertaken for commercial purposes. The duration of protection is to be not less than 10 years.

In 2000, India passed legislation (Designs Act 2000) to meet its obligations under the TRIPS Agreement for industrial designs. The GOI also passed the Semiconductor Integrated Circuits Layout Designs Act 2000, based on standards developed by WIPO.

 

Patents

Following TRIPS, the basic obligation in the area of patents is that, inventions in all branches of technology whether products or processes are patentable if these meet the three tests of being new, involve an inventive step and are capable of an industrial application. The minimum term of protection is 20 years counted from the date of filing.

As per India's TRIPS obligation, it had to amend its 1970 Patents Act to introduce products patent in pharmaceuticals and agro-chemicals by 1 January 2005. The Patents Act 1970 permitted only process patents, which led to a growth of pharmaceutical companies producing generic drugs by applying reverse engineering and adopting new processes. Thus Patents (Amendment) Act 2005 was passed in March 2005 incorporating major amendments to the bill that was introduced in 2003 and the ordinance that was promulgated in December 2004. Many of the changes in the new Patents Act are simply procedural.

 

Copyright Protection

In India, copyright exists only in the form or expression of a work and not in the idea. The term of copyright is the lifetime of the author plus 60 years from the calendar year following the year of the author's death.

The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the World Intellectual Property Organisation (WIPO), the Berne Union for Protection of Literary and Artistic Works, the Nairobi Treaty of the Olympic Symbol and the Universal Copyright Convention (UCC). This means that any person that enjoys a copyright in any of these convention countries automatically gets statutory copyright protection in India. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions.

India's copyright law as laid down in the Copyright Act of 1957 was replaced by the Copyright (Amendment) Act of 1999. The Act vests copyright in the authors on creation of their works and require no registration. Registration provides prima facie evidence of a copyright's validity and is advisable. The Act covers computer programs, satellite broadcasting and digital technology. The Act provides for copyright enforcement. A person whose copyright is infringed may sue for civil relief, and may even institute criminal proceedings for infringement in certain cases.

The Government has taken some measures over the past two years to strengthen and streamline the enforcement of copyrights. These include establishment of a Copyright Enforcement Advisory Council and special policy cells to deal with cases relating to violation of copyrights.

 

For further information, please see:

The India Ministry of Commerce and Industry, Department of Industrial Policy & Promotion Website

UK Trade and Investment Country Profile

Embassy of India, Washington D.C Intellectual Property Rights

 

Indian Patent Office Report on IPR

The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial. India ratified the agreement establishing the World Trade Organisation (WTO). This Agreement, inter-alia, contains an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into force from 1st January 1995.

It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade. The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.

Source: Indian Department of Industrial Policy and Promotion

PLEASE CLICK HERE FOR THE FULL REPORT

 

Intellectual Property Rights

Enforcement against intellectual property rights' violations has never been particularly strong in developing countries. In India this has significantly improved in recent years. Enforcement does not improve if the intellectual property rights issue is perceived to be an issue that is thrust down India's throat as a result of external pressure.

It improves when internal pressures for better compliance are generated and this has begun to happen in the case of software and copyrights. To the extent that the TRIPs agreement requires better compliance, there is nothing to complain about.

Source: India Brand Equity Foundation (IBEF)

FOR THE FULL ARTICLE PLEASE CLICK HERE

 

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Last Updated: December 2010

 

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