FACULTY OF LAW

JAMIA MILLIA ISLAMIA

SUBJECT : INTELLECTUAL PROPERTY RIGHTS

TOPIC : LEGAL FRAMEWORK OF IPR IN INDIA-AN OVERVIEW

Submitted to- Submitted by-

Dr. Shabana Shabnam Aayushi Bana and AbhinavPandey
Faculty of Law Semester-VIII
Jamia Millia Islamia(Self-Financed)
Roll no. 03 and 04

1
ACKNOWLEDGEMENT

I am deeply indebted toDr. Shabana Shabnam, Faculty of Law, Jamia Millia Islamia, New Delhi
for her initial and continuous encouragement and guidance, without which this work would have
been very difficult for me. If I have failed to come up to her expectation, both on facts and
interpretation, I alone am responsible.

I would be failing in my obligations if I do not convey my thanks to all the authors of the books
and articles from which I have quoted and made references.

I am very thankful to everyone who have had given me their direct and indirect support to
complete my work and give support to outcome from and difficulty while completing my work.

I wish to thank my parents and my younger brother for their moral support and constant
inspiration. I am also thankful to those who have not being mentioned by name but nevertheless
having been of invaluable help in their inscrutable ways. Lastly, I would like to thank the
Almighty God, without who’s blessing no one can accomplish anything.

-AAYUSHI BANA

2
 TABLE OF CONTENTS

S.No. TOPIC / HEADINGS PAGE

1. INTRODUCTION 4

2. 5

3. 7

4. 10

5. 12

6. CONCLUSION 15

3
INTRODUCTION

Intellectual Property Rights originated during the Renaissance in Italy in the 13 th century. With
their implementation, an individual was able to protect and earn money from their invention. Soon,
this system of patents and copyrights spread across Europe. By the 19 th century, it became widely
recognized across industrialized countries that allowing the inventor ownership of literary, artistic,
creative or scientific works stimulated further innovation. The result was a massive economic
growth, in which intellectual property rights played an important role.

India is one of the UKs priority overseas markets.

If you plan to do business in India, or if you are already trading there, it is essential to know how to use,
guard and enforce the rights you have over the intellectual property (IP) that you or your business own.
This guide explains about IP in general, and gives guidance on how to apply these principles in the Indian
market. It describes the issues you may face with IP infringement in India, offers advice on how you can
effectively tackle these, and provides links to sources of further help.

Development In India

Intellectual Property Right (IPR) in India was imported from the west. The Indian Trade and Merchandise
Marks Act 1884, was the First Indian Law regarding IPR. The First Indian Patent Law was enacted in
1856 followed by a series of Acts being passed. They are Indian Patents and Designs Act in 1911 and
Indian Copyright Act in 1914. Indian Trade and Merchandise Marks Act and Indian Copyright Act have
been replaced by Trade and Merchandise Marks Act 1958 and Copyright Act 1957 respectively.

In 1948, the Indian Government appointed the First committee to review the prevailing Patents and Designs
legislation. In 1957, Government appointed Justice Rajagobala Ayyangar Committee
(RAC) to revise the Patent Law. Rajagobala Ayyangar Committee submitted its report on 1959, the
report tried to balance the constitutional guarantee of economic and social justice enshrined in the
preamble of the constitution. This report provided the process for Patenting of drugs. This report outlined
the policy behind the Indian Patent system.

The theory upon which the patent system is based on, i.e., an opportunity of acquiring exclusive rights in an
invention, stimulates technical process in four ways.

1. Encourages research and invention.

2. Induces an inventor to disclose his discoveries.

3. Offers award for the expenses of developing inventions.

4
4. Provides an inducement to invest capital in new lines of production which might not appear
profitable.

Based on the Rajagobala Ayyangar Committee report, a Bill was introduced in the year 1965 and the bill
was passed in the Lok Sabha but it lapsed in the Rajya Sabha and once again lapsed in Lok Sabha in the year
1966 due to dissolution of Lok Sabha. But it was reintroduced in 1967 and passed in 1970; the draft rules
were incorporated in Patent Act and passed in the year 1971.

What are intellectual property rights?

Intellectual property (IP) is a term referring to a brand, invention, design or other kind of creation, which a
person or business has legal rights over. Almost all businesses own some form of IP, which could be a
business asset.
Common types of IP include:

Copyright – this protects written or published works such as books, songs, films, web content and artistic
works;

Patents – this protects commercial inventions, for example, a new business product or process;

Designs – this protects designs, such as drawings or computer models;

Trade marks – this protects signs, symbols, logos, words or sounds that distinguish your products and
services from those of your competitors.

IP can be either registered or unregistered.

With unregistered IP, you automatically have legal rights over your creation. Unregistered forms of IP
include copyright, unregistered design rights, common law trade marks and database rights, confidential
information and trade secrets.

With registered IP, you will have to apply to an authority, such as the Intellectual Property Office in the
UK, to have your rights recognised. If you do not do this, others are free to exploit your creations.
Registered forms of IP include patents, registered trade marks and registered design rights. Copyright is also
registerable.

5
Treaties and reciprocal agreements
India is also a signatory to the following international IP agreements:
 Paris Convention

One of the first treaties concerning the field of intellectual property turned into signed at this
convention. It changed into signed in Paris, France on March 20th, 1883. The laws brought forth by
this conference are still in pressure, and they're administered by the World Intellectual Property
Organization. This agency is positioned in Geneva, Switzerland.

The history of this treaty dates lower back to 1880 when a diplomatic convention become held in
Paris. The convention and next treaty happened in 1883, and in the beginning it become simplest
signed via 11 international locations. These blanketed Switzerland, Spain, Serbia, El Salvador,
Portugal, the Netherlands, Italy, Guatemala, France, Brazil and Belgium. As of this writing, there
are 169 international locations that abide by means of the Paris Convention, which encompass
Germany, Japan, Egypt, Mexico, Saudi Arabia, United Kingdom, United States and Vietnam.
Various revisions have been made to the treaty in the course of the years.

The Paris Convention presented some of the maximum widespread protections for people and
corporations that personal trademarks, patents, software fashions, industrial designs, geographical
indicators and change names. It became simply the primary essential step in making sure that
creators are given protections for his or her works even in other international locations. This
conference created the availability of countrywide remedy. This establishes that every nation must
offer people or organizations with a patent the same protections as they could supply national
citizens of their very own nation.

The convention also set up the right of priority. This manner that an man or woman should file a
patent for his or her invention in anything united states of America that individual lives in. After a
given quantity of time, the inventor may want to report for a patent within another countries which
have agreed to the Paris Convention. The amount of time a person might need to attend is six
months for business marks and designs and one year for application fashions and patents. This
provision is notably useful as it method that patent filers do no longer need to file patents at several
international locations at the same time, that may reason a whole lot of complications. You can
focus on your fatherland first after which determine what other international locations might be
exceptional for getting a patent filed.

6
 Berne Convention –

The Berne Convention deals with the protection of works and the rights of their authors. It is based
on three basic principles and contains a series of provisions determining the minimum protection
to be granted, as well as special provisions available to developing countries that want to make use
of them.

(1) The three basic principles are the following:

(a) Works originating in one of the Contracting States (that is, works the author of which is a
national of such a State or works first published in such a State) must be given the same protection
in each of the other Contracting States as the latter grants to the works of its own nationals (principle
of "national treatment") 1

(b) Protection must not be conditional upon compliance with any formality (principle of "automatic"
protection.

(c) Protection is independent of the existence of protection in the country of origin of the work
(principle of "independence" of protection). If, however, a Contracting State provides for a longer
term of protection than the minimum prescribed by the Convention and the work ceases to be
protected in the country of origin, protection may be denied once protection in the country of origin
ceases.

The minimum standards of protection relate to the works and rights to be protected, and to the duration of
protection:

(a) As to works, protection must include "every production in the literary, scientific and artistic domain,
whatever the mode or form of its expression" (Article 2(1) of the Convention).

(b) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that
must be recognized as exclusive rights of authorization:

 the right to translate,

 the right to make adaptations and arrangements of the work,

1
Under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the
principles of national treatment, automatic protection and independence of protection also bind those World
Trade Organization (WTO) Members not party to the Berne Convention. In addition, the TRIPS Agreement
imposes an obligation of "most-favored-nation treatment", under which advantages accorded by a WTO
Member to the nationals of any other country must also be accorded to the nationals of all WTO Members. It
is to be noted that the possibility of delayed application of the TRIPS Agreement does not apply to national
treatment and most-favored obligations.
7
  the right to perform in public dramatic, dramatico-musical and musical works,

 the right to recite literary works in public,

 the right to communicate to the public the performance of such works,

 the right to broadcast (with the possibility that a Contracting State may provide for a
mere right to equitable remuneration instead of a right of authorization),

 the right to make reproductions in any manner or form (with the possibility that a
Contracting State may permit, in certain special cases, reproduction without
authorization, provided that the reproduction does not conflict with the normal
exploitation of the work and does not unreasonably prejudice the legitimate interests
of the author; and the possibility that a Contracting State may provide, in the case of
sound recordings of musical works, for a right to equitable remuneration),

 the right to use the work as a basis for an audiovisual work, and the right to
reproduce, distribute, perform in public or communicate to the public that audiovisual
work .

 The Convention also provides for "moral rights", that is, the right to claim authorship of the work
and the right to object to any mutilation, deformation or other modification of, or other derogatory
action in relation to, the work that would be prejudicial to the author's honor or reputation.
 As to the duration of protection, the general rule is that protection must be granted until the
expiration of the 50th year after the author's death. There are, however, exceptions to this general
rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after
the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as
to the author's identity or if the author discloses his or her identity during that period; in the latter
case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term
of protection is 50 years after the making available of the work to the public ("release") or – failing
such an event – from the creation of the work. In the case of works of applied art and photographic
works, the minimum term is 25 years from the creation of the work
 The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in
which protected works may be used without the authorization of the owner of the copyright, and
without payment of compensation. These limitations are commonly referred to as "free uses" of
protected works, and are set forth in Articles 9(2) (reproduction in certain special cases), 10
(quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of
newspaper or similar articles and use of works for the purpose of reporting current events) and
11bis(3) (ephemeral recordings for broadcasting purposes).
8
  The Appendix to the Paris Act of the Convention also permits developing countries to implement
non-voluntary licenses for translation and reproduction of works in certain cases, in connection with
educational activities. In these cases, the described use is allowed without the authorization of the
right holder, subject to the payment of remuneration to be fixed by the law.
 The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908,
completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and
at Paris in 1971, and was amended in 1979.2

Madrid Protocol –

 Madrid Protocol” means the Protocol relating to the Madrid Agreement Concerning the
International Registration of Marks adopted at Madrid on the 27th day of June, 1989, as amended
from time to time

 The Madrid Protocol gives trade mark owners the possibility of having their trademarks protected in
several countries by simply filing one application directly with their own national or regional trade
mark office.

 It is a one stop solution to protect your brand in many countries around the world, following a simple
and cost-effective procedure for filing your trade mark applications and managing your trade mark
registrations abroad.
 The Madrid Union currently has 100 members, including both States and intergovernmental
organizations that are Contracting Parties to the Madrid Protocol, covering the territories of 116
countries.
 Most of India’s top trading partners are members of the Madrid Union.
 The Madrid Protocol is administered by the World Intellectual Property Organization (WIPO), which
is a specialized agency of the United Nations, headquartered in Geneva, Switzerland.
 The Madrid Protocol allows obtaining and maintaining protection for your brand around the world
by providing a user friendly, expeditious and cost-effective set of procedures for the central filing of
trade mark applications and the central management of trade mark registrations with effects in
various countries.3

2
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
3
https://taxguru.in/corporate-law/madrid-protocol-international-trademark-system.html
9
 Patent Cooperation Treaty –

The Patent Cooperation Treaty (PCT) makes it possible to seek patent protection for an invention
simultaneously in each of a large number of countries by filing an "international" patent application. Such an
application may be filed by anyone who is a national or resident of a PCT Contracting State. It may
generally be filed with the national patent office of the Contracting State of which the applicant is a national
or resident or, at the applicant's option, with the International Bureau of WIPO in Geneva.
Filing a PCT application has the effect of automatically designating all Contracting States bound by the PCT
on the international filing date. The effect of the international application is the same in each designated
State as if a national patent application had been filed with the national patent office of that State.
The international application is subjected to an international search. That search is carried out by one of the
competent International Searching Authorities (ISA) under the PCT 4and results in an international search
report, that is, a listing of the citations of published documents that might affect the patentability of the
invention claimed in the international application. In addition, a preliminary and non-binding written
opinion on whether the invention appears to meet patentability criteria in light of the search report results is
also issued.

Ultimately, the PCT:

 brings the world within reach;

 streamlines the process of fulfilling diverse formality requirements;
 postpones the major costs associated with international patent protection;
 provides a strong basis for patenting decisions; and
 is used by the world's major corporations, research institutions and universities in seeking
international patent protection.

The PCT created a Union which has an Assembly. Every State party to the PCT is a member of the
Assembly. Among the most important tasks of the Assembly are the amendment of the Regulations issued
under the Treaty, the adoption of the biennial program and budget of the Union and the fixing of certain fees
connected with the use of the PCT system.5

4
The patent offices of Australia, Austria, Brazil, Canada, Chile, China, Egypt, Finland, India, Israel, Japan,
the Republic of Korea, the Russian Federation, Singapore, Spain, Sweden, Turkey, Ukraine, the United
States of America, the European Patent Office, the Nordic Patent Institute and the Visegrad Patent Institute
act as International Searching Authorities under the PCT (status on July 1, 2018). An agreement enabling the
office of the Philippines to act as ISA has been signed; however, this office has not yet commenced
operations
5
https://www.wipo.int/treaties/en/registration/pct/summary_pct.html#_ftn1
10
India is not a signatory to the Hague Agreement, which allows the protection of designs in multiple
countries through a single filing.

Intellectual property rights – systems in India

Copyright
Creativity being the keystone of development, no civilized society can manage to pay for to ignore the
primary requirement of encouraging the identical. Economic and social improvement of a society is
depending on creativity.
In the light of this, the Indian Copyright Act, 1957 has been enacted which came into effect from January,
1958 and became modified five times i.e., in 1983, 1984, 1992, 1994 and 1999.
The Indian Copyright Act, 1957 as amended from time to time and the Indian Copyright Rules, 1958
(Rules), governs the machine of copyrights in India. Copyright is a proper given with the aid of the
regulation to creators of literary, dramatic, musical and creative works and manufacturers of
cinematographic films and sound recordings. In fact, it is a package of rights along with, inter alia, rights of
duplicate, verbal exchange to the public, edition and translation of the work.
The provisions of the The Indian Copyright Act, 1957and the Copyright Rules, 1958 as amended once in a
while and as applicable as on these days are defined hereunder.
The concept of joint authorship is recognised in Section. 2(z) of the Act which provides that "a work
produced by the collaboration of two or more authors in which the contribution of one author is not distinct
from the contribution of the other author or authors" is a work of joint authorship. This concept has been
elucidated in cases like Najma Heptulla v. Orient Longman Ltd. and Ors.
Section 19 of the Copyright Act 1957 lays down the modes of assignment of copyright in India.

Copyright Board:

Section 11 of the act provides for the establishment of the Copyright Board and empowers Central
Government to constitute the same consisting of Chairman and 2 other members. It has many important
functions, such as:

1. Settlement of disputes,
2. Grating of licenses, etc

Copyright Licenses:

Chapter VI containing Sections 30-32B deals with Licenses.

11
Licenses by Owners of Copyright- Section 30 of the act empowers the proprietor of the copyright in any
present paintings or the prospective proprietor of the copyright in any future work to provide any interest in
the right through license in writing by way of him or with the aid of his duly legal agent. However, inside
the case of a license referring to copyright in any destiny paintings, the license shall take impact simplest
when the paintings comes into existence.

Compulsory License withheld from public- Section 31 gives that of at any time throughout the time period
of copyright in any Indian work which has been published or performed in public, a grievance is made top
the Copyright Board that the owner of copyright within the work has refused to republish or allow the
duplicate of the work or has refused to allow the performance in public of the paintings and via reason of
such refusal the paintings is withheld from the general public or has refused to permit communique to the
general public with the aid of broadcast of such paintings or recording, on terms which the complainant
considers affordable, the Copyright Board, after giving to the owner of the copyright inside the paintings an
inexpensive possibility of being heard and after holding such inquiry as it may deem necessary, may also, if
it is glad that the grounds for such refusal are not affordable, direct the Registrar of Copyright to furnish to
the complainant the license to republish the work.

Statutory License for broadcasting of literary and musical work and sound recording-

Section 31D provides that any broadcasting organization desirous of communicating to the public by way of
a broadcast or by way of performance of a literary or musical work and sound recording which has already
been published may do so subject to the fulfillment of prescribed conditions.

Termination of License: Section 32B of the act offers with termination of licenses and affords that if any
time after the granting of a license, the proprietor of the copyright in the work or any individual legal by
using him publishes a translation of such paintings inside the equal language and that's notably the same in
content material at a price fairly associated with the price usually charged in India for the translation of
works of the same standard at the equal or comparable difficulty, the license so granted will be terminated.

Other Licenses - can be by way of License in unpublished or published works, benefit of disabled, etc

Indian perspective on copyright protection:

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the
following two forms:

12
(A) Economic rights of the author, and
(B) Moral Rights of the author.
Economic right- The copyright subsists in unique literary, dramatic, musical and inventive works;
cinematographs films and sound recordings. The authors of copyright in the aforesaid works revel in
monetary rights u.S.14 of the Act. The rights are specially, in appreciate of literary, dramatic and musical,
aside from computer program, to reproduce the work in any cloth shape which include the storing of it in
any medium by using electronic method, to issue copies of the work to the public, to perform the paintings
in public or communicating it to the general public, to make any cinematograph film or sound recording in
recognize of the paintings, and to make any translation or adaptation of the work. In the case of computer
software, the writer enjoys in addition to the aforesaid rights, the right to promote or give on hire, or offer on
the market or hire any reproduction of the laptop program regardless whether or not such copy has been
offered or given on hire on earlier activities. In the case of a creative work, the rights available to an creator
consist of the right to breed the work in any fabric form, consisting of depiction in three dimensions of a two
dimensional work or in dimensions of a 3 dimensional paintings, to talk or troubles copies of the paintings
to the public, to encompass the work in any cinematograph paintings, and to make any model of the work. In
the case of cinematograph movie, the author enjoys the right to make a replica of the film together with a
image of any image forming part thereof, to promote or supply on rent or provide on the market or hire, any
copy of the film, and to talk the movie to the general public. These rights are similarly to be had to the
author of sound recording. In addition to the aforesaid rights, the author of a portray, sculpture, drawing or
of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, will be
entitled to have a proper to proportion inside the resale charge of such unique reproduction furnished that the
resale charge exceeds rupees 10000.

Moral Rights-
Section 57 of the Act defines the two basic 'moral rights of an author. These are:
(i) Right of paternity, and
(ii) Right of integrity.
The right of paternity refers to a right of an creator to claim authorship of work and a right to prevent all
others from claiming authorship of his paintings. Right of integrity empowers the writer to prevent
distortion, mutilation or other changes of his paintings, or another action when it comes to stated work,
which could be prejudicial to his honour or recognition. The proviso to segment fifty seven(1) presents that
the author shall now not have any proper to restrain or declare damages in appreciate of any variation of a pc
application to which section 52 (1)(aa) applies (i.E. Opposite engineering of the identical). It must be cited
that failure to display a piece or to display it to the pride of the author shall no longer be deemed to be an
infringement of the rights conferred by this phase. The criminal representatives of the author may also

13
exercise the rights conferred upon an author of a work through section 57(1), apart from the proper to assert
authorship of the work.

Exceptions to copyright infringement in India

The Copyright Act 1957 exempts certain acts from the ambit of copyright infringement6. While many
people tend to use the term fair use to denote copyright exceptions in India, it is a factually wrong usage.
While the US and certain other countries follow the broad fair use exception, India follows a different
approach towards copyright exceptions. India follows a hybrid approach that allows-

 Fair dealing with any copyrighted work for certain specifically mentioned purposes 7and
 certain specific activities enumerated in the statute8. While the fair use approach followed in the US
can be applied for any kind of uses, the fair dealing approach followed in India is clearly limited
towards the purposes of

1. private or personal use, including research9,and education,criticism or review10, reporting of current

events and current affairs, including the reporting of a lecture delivered in public11.
2. While the term fair dealing has not been defined anywhere in the Copyright Act 1957, the concept
of 'fair dealing' has been discussed in different judgments, including the decision of the Supreme
Court of India in Academy of General Education v. B. Malini Mallya (2009) and the decision of the
High Court of Kerala in Civic Chandran v. Ammini Amma12.

In September 2016, the Delhi High Court ruled in Delhi University's Rameshwari Photocopy Service shop
case, which sold photocopies of chapters from academic textbooks was not infringing on their publisher's
copyright, arguing that the use of copyright to "stimulate activity and progress in the arts for the intellectual
enrichment of the public" outweighed its use by the publishers to maintain commercial control of their
property. However, in December 2016, the ruling was reversed and taken back to court, citing that there
were "triable issues" in the case.

Remedies available against copyright infringement in India

6
Sec. 52 of the Copyright Act 1957
7
Sec 52(1) a
8
Sec 52 (1) aa to zc
9
Sec 52 (1) a (i)
10
Sec 52 (1) a (ii)
11
Sec 52 (1) a (iii)
12
N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property (Eastern Book Company
2014)369-393
14
The Copyright Act 1957 provides three kinds of remedies - administrative remedies, civil remedies and
criminal remedies.
The administrative remedies provided under the statute include detention of the infringing goods by the
customs authorities13.
The civil remedies are provided under Chapter XII of the Copyright Act 1957 and the remedies provided
include injunctions, damages and account of profits14.
The criminal remedies are provided under Chapter XIII of the statute and the remedies provided against
copyright infringement include imprisonment (up to 3 years) along with a fine (up to 200,000 Rupees).15
Recently in 2015 the Jurisdiction law regarding Copyright Violation has gone a drastic change by the
following judgement of the Hon'ble Supreme Court - Jagdish Singh Khehar and Arun Mishra

Patent
Patent is an intellectual belongings right regarding innovations and it is the supply of specific rights, for
a limited length, provided by means of the Government to the patentee, in alternate of full disclosure of his
invention and aside from others, from making, the usage of, promoting, importing the patented product or
approaches producing that product for any functions. The purpose of this device is to inspire inventions
via highlighting their promotion and usage a good way to contribute to the development of industries,
which in flip, contributes to the promotion of technological improvements and to the transfer and
dissemination of generation.
Under the gadget, Patents make certain belongings rights for the invention for which patent have been
granted, which can be extremely treasured to an person or a company. Patents shall be to be had and
patent rights enjoyable without discrimination as to the area of invention, the Field of generation and
whether or not products are imported or regionally produced. The traits of patents over the last 25 years in
India have their roots in the formula and implementation of the Indian Patent Act 1970, which have
become effective from April 20, 1972. There was a strategic shift from the liberal capabilities of the Indian
Patents and Designs Act 1922 to the new regime which brought restrictive modifications associated with
patenting of innovations mainly in the regions of chemical compounds, prescription drugs, agrochemicals
and ingredients. The granting of patents for innovations claiming materials meant for use or able to
getting used as, meals, medicinal drug or drug or all materials resulting from chemical procedures changed
into withdrawn. The conditions for compulsory licensing had been also made pretty liberal inclusive of
the advent of the idea of “license of right” for patents related to drugs, prescribed drugs and foods.

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the
Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the
Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was
13
Sec 53
14
Sec 55
15
Sec 63 and 63 A
15
the allowance of only process patents with regard to inventions relating to drugs, medicines, food and
chemicals.

Later, India became signatory to many international arrangements with an objective of strengthening its
patent law and coming in league with the modern world. One of the significant steps towards achieving this
objective was becoming the member of the Trade Related Intellectual Property Rights (TRIPS) system.

Significantly, India also became signatory of the Paris Convention and the Patent Cooperation Treaty on 7th
December 1998 and thereafter signed the Budapest Treaty on 17th December 2001.

Being a signatory to TRIPS, India was under a contractual obligation to amend its Patents Act to comply
with its provisions. India had to meet the first set of requirements on 1st January 1995 to give a pipeline
protection till the country starts granting product patent.

16
Designs
The laws governing designs are the Designs Act 2000 and the Designs Rules 2001. Designs are valid for a
maximum of ten years, renewable for a further five years.
he Designs Act, 2000 ("the Act"), is a complete code in itself and protection under it is wholly statutory
in nature. It protects the visual design of objects that are not purely utilitarian. Section 2(d) of the Act,
defines a Design as:

 "design" means only the features of shape, configuration, pattern, ornament or composition of lines
or colours 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 and are judged solely by the eye; but does not
include any mode or principle of construction or anything which is in substance a mere mechanical
device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of
the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479
of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the
Copyright Act, 1957 (14 of 1957).

The pre-requisites for a design to qualify for protection are as follows

 It should be novel and original.

 It should be applicable to a functional article.
 It should be visible on a finished article.
 There should be no prior publication or disclosure of the design.

Locarno Classification

 Designs are registered in different classes as per the Locarno Agreement. It is used to classify
goods for the purposes of the registration of industrial designs which further helps in Design
searches. These classes are mainly function oriented.

Remedies

 It is submitted that as per Section 19 of the Designs Act, 2000, at any time during the subsistence of
the Design registration, any person can seek cancellation of design registration by filing a Petition
before the Controller, on the following grounds: [ra1]"...
 that the design has been previously registered in India; or
 that it has been published in India or in any other country prior to the date of registration; or
 that the design is not a new or original design; or
 that the design is not registerable under this Act; or
 that it is not a design as defined under clause (d) of section 2..."

Further, an appeal against the order of the Controller can be made to the High Court.

Piracy of Registered Designs

Section 22 of the Designs Act, 2000, provides that any fraudulent or obvious imitation of a registered design
without the consent of the proprietor is unlawful and also prohibits the import of such material which closely
resembles a registered design. The section very specifically provides that in a civil case compensation
payable shall not exceed Rs. 50,000/- in respect of infringement of one registered design. As the
17
compensation payable is statutorily limited, it is a good ground for insisting an interim injunction even
before the commencement of trial.

Industrial Design

An business layout is that aspect of a beneficial article, that is decorative or aesthetic. It may
additionally consist of 3-dimensional features such as the form or floor of the thing, or -dimensional
features including styles, lines or coloration.Industrial layout is carried out to a extensive range of
products of enterprise or handicraft; from watches, jewellery, style and different luxurious items to industrial
and scientific implements; from house ware, furniture and electric home equipment to automobiles and
architectural systems, from realistic items and textile designs to amusement items, along with toys and
puppy accessories. A new designs law repealing and changing the Designs Act, 1911 has been handed by
means of Parliament in the Budget Session, 2000. This Act has been brought into pressure from May eleven,
2001.
Layout Designs of Integrated Circuits
A “layout-design (topography)” is described as the three-dimensional disposition, but expressed, of
the elements, at least one of which is an lively element, and of some or all of the interconnections of
an incorporated circuit, or such a 3-dimensional disposition organized for an incorporated circuit supposed
for manufacture. The obligation to defend layout-designs applies to such format-designs that are
authentic within the experience that they're the result of their creators very own intellectual attempt and
aren't commonplace among creators of format-designs and manufacturers of incorporated circuits on the
time of their introduction. The distinct rights include the right of duplicate and the proper of importation,
sale and different distribution for business functions

Trade marks

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

The Salient features of the Trade Marks Act, 1999, are as follows:  

 Registration of Trade Mark for Services [Sec. 2(2)(z)]

 Enlargement of definition of Trade Marks [Sec. 2(2)(zb)]
 Registration of Trade Marks simplified [Sec. 9(1)(a)] 
18
  Enhanced protection for well known trade marks [Sec. 2(1)(zg), read with section 9(1) and section
11]
 Defensive Registration system in 1958 Act omitted [Sec. 159(6)]
 Part A and Part B registration system abolished [Sec. 6(7)] 
 Period of renewal modified [Sec. 25] 
 Filing of Multi-class applications permitted [Sec. 18(2)] 
 Law concerning registration of registered users simplified [Sec. 49] 
 New provision for registration of Collective marks [Chapter VIII - Sec. 61-68] 
 Appeals from Registrar to lie to Appellate Board, instead of High Court [Sec. 83-100] 
 Scope of infringement of Trade marks widened [Sec. 29]
 Enhanced punishment for trade mark offences [Sec. 103-105] 
 Forum for institution of infringement proceedings, etc. [Sec. 134] 
 Removal of mark on ground of non-use [Sec. 47] 
 Assignment of unregistered trade marks [Sec. 39] 
 Amendment of Companies Ac [Sec. 158 - Schedule amending Sec. 20 & 22 of Companies Act] 
 Register on Computer [Sec. 6(2)] 
 International Classification adopted [Sect. 7] 
 Refusal of registration [Sec. 9 and 11] 
 International non-proprietary names not registrable [Sec. 13] 
 Association of Trade Marks [Sec. 16]
 Requirement of 'disclaimer' abolished [Sec17, read with 159(2)] 
 Exhaustion of Trade Mark rights [Sec. 30(3)] 
 Distinctiveness of mark subsequent to registration recognized [Sec. 32] 
 Acquiescence by proprietor of 'earlier trade mark' - consequence [Sec. 33] 
 Regd. User may institute infringement proceedings [Sec. 52]
 Police empowered to search and seize [Sec. 115(4)] 
 Unauthorized registration of mark by Agent [Sec. 146] 
 Member countries of TRIPS & Paris Convention are Convention countries [Sec. 154] 
 Govt. empowered to remove difficulties in administration of Act [Sec. 156]
 In view of considerable changes in the law, a specific provision has been incorporated, enabling the
Central Government to take such action, as necessary (not being inconsistent with the Act), to
remove difficulties in the administration of the Act - section 156.

Plant Varieties

19
The protection of new plant types is any other component of intellectual belongings rights, and as such
seeks to acknowledge the achievements of breeders of new plant sorts by giving them, for a confined
length, an exceptional proper. To attain such safety, the brand new sorts have to satisfy particular criteria.
Variety is defined as a plant grouping within a single botanical taxon of the lowest recognised rank.
Provided that the herb ought to be new or novel, awesome, uniform, strong and feature a quality
denomination. The enterprise overseeing the safety of new plant sorts is called UPOV (The
International Union for the Protection of New Varieties of Plants).

The Protection of Plant Varieties and Farmers’ Rights Act

 Enacted by India in 2001 adopting sui generis system.

 It is in conformity with International Union for the Protection of New Varieties of Plants
(UPOV), 1978.
 The legislation recognizes the contributions of both commercial plant breeders and farmers
in plant breeding activity and also provides to implement TRIPs in a way that supports the
specific socio-economic interests of all the stakeholders including private, public sectors
and research institutions, as well as resource-constrained farmers .

Objectives of the PPV & FR Act, 2001:

•To set up an effective machine for the protection of plant sorts, the rights of farmers and plant
breeders and to inspire the development of recent types of flora.
•To recognize and defend the rights of farmers in appreciate in their contributions made at any
time in keeping, improving and making available plant genetic assets for the development of
recent plant sorts.
•To accelerate agricultural improvement in the u . S . A ., shield plant breeders’ rights;
stimulate funding for studies and improvement each in public & non-public sector for the
improvement new of plant types.
•Facilitate the increase of seed industry within the United States of America that allows you to
make certain the supply of excessive great seeds and planting fabric to the farmers.

Rights under the Act:

Breeders’ Rights : Breeders will have exclusive rights to produce, sell, market, distribute, import or
export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in
case of infringement of rights.
Researchers’ Rights : Researcher can use any of the registered variety under the Act for conducting
experiment or research. This includes the use of a variety as an initial source of variety for the
purpose of developing another variety but repeated use needs prior permission of the registered
breeder.

Farmers’ Rights:

20
 1. A farmer who has evolved or developed a new variety is entitled for registration and protection
in like manner as a breeder of a variety;
2. Farmers variety can also be registered as an extant variety;
3. A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of
a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before
the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a
variety protected under the PPV&FR Act, 2001;
4. Farmers are eligible for recognition and rewards for the conservation of Plant Genetic
Resources of land races and wild relatives of economic plants;
5. There is also a provision for compensation to the farmers for non-performance of variety under
Section 39 (2) of the Act, 2001 and
6. Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or
the Tribunal or the High Court under the Act.

Geographical Indications of Goods (Registration and Protection) Act, 1999

Geographical indications means any indications which define the goods as originating in the territory
of a country or a region or locality in that territory, provided a given quality reputation or other
characteristics of the product are attributable to its geographical origin. This means that the
geographical indication has to indicate that a product of a particular origin has a certain quality or
reputation or some other characteristics, which is essentially attributable to its geographical origin .

The TRIPS prescribes minimum standards of protection of GIs and additional protection for wines and
spirits. Articles 22 to 24 of Part II Section III of the TRIPS prescribe minimum standards of protection to the
geographical indications that WTO members must provide. India, in compliance with its obligation under
TRIPS, has taken legislative measures by enacting the Geographical Indications of Goods (Registration and
Protection) Act, 1999, which came into effect on 15th September, 2003 and the Geographical Indications of
Goods (Registration and Protection) Rules, 2002.

GIs have been used in India for a wide variety of products, such as Basmati Rice, Darjeeling Tea, Kangra
Tea, Feni, Alphonso Mango, Alleppey Green Cardamom, Coorg Cardamom, Kanchipuram Silk Saree,
Kohlapuri Chappal, Rasgulla etc.

The following geographical indications are prohibited from registration under section 9 of the act:

1. the use of which would be likely to deceive or cause confusion;

2. the use of which would be contrary to any law for the time being in force ;
3. which comprises or contains scandalous or obscene matter;
4. which comprises or contains any matter likely to hurt the religious susceptibilities of any class or
citizens of India.
5. which would be disentitled to protection to protection in the court of law.
6. which are determined to be generic names or indications of goods and are, therefore, not or ceased
to be protected in their country of origin, or which have fallen into disuse in that country;
21
 7. which, although literally true as to the territory, region or locality in which the goods originate, but
falsely represent to the persons that the goods originate, but falsely represent to the persons that
the goods originate in another territory, region or locality, as the case may be, shall not be
registered as a geographical indication.

Section 18 of the act provides that the registration of a geographical indication shall be for a period
of 10 years and shall be renewed for a period of another 10 years on an application made in the
prescribed manner and within the prescribed period and subject to the payment of the prescribed
fees.

Geographical indications of products are defined as that factor of industrial belongings, which adverts to
the geographical indication regarding a usa or to an area, situated there’s as being the united states of
America or vicinity or origin of that product. The given product must have a particular geographical
beginning and posse’s features or popularity because of that location of starting place. A area name is now
and again used to perceive a product. This geographical indication no longer most effective refers to
wherein the product become made, but greater importantly, it
Identities the product’s unique traits which might be the result of the products foundation. Using the vicinity
call when the product changed into made someplace else or while it doesn’t have the usual characteristics
can deceive clients, and it can cause unfair opposition. Some exceptions are allowed, as an instance if the
call is already included as a hallmark or if it has turn out to be a standard term.

Registering and enforcing intellectual property rights in India

To experience most types of highbrow property (IP) rights in India, you ought to register them.
For patents, person registrations have to be made in India, but for rights aside from business designs you
could observe underneath the phrases of the Patent Cooperation Treaty, which is typically easier and faster.
For alternate marks, you have to check in them inside India, both thru the domestic trade mark machine or
beneath the Madrid system.
For copyright, no registration is required but registering copyrights with the copyright authorities is
advisable.
‘Priority rights’ beneath the Paris Convention can help in the nearby registration of change marks, designs
and patents through permitting rights formerly registered somewhere else to emerge as powerful in India, if
filed inside a time restriction.

BIO DIVERSITY ACT

22
The Biological Diversity Act 2002 turned into born out of India's attempt to realize the goals enshrined
within the United Nations Convention on Biological Diversity (CBD) 1992 which recognizes the sovereign
rights of states to use their personal Biological Resources. The Act pursuits on the conservation of organic
sources and related expertise in addition to facilitating get admission to to them in a sustainable way and
through a simply process For purposes of imposing the objects of the Act it establishes the National
Biodiversity Authority in Chennai.
The Biodiversity Act is a federal legislation enacted by the Parliament of India for preservation of biological
variety in India, and affords mechanism for equitable sharing of advantages bobbing up out use of
conventional biological resources and information. The Act became enacted to fulfill the responsibilities
below Convention on Biological Diversity (CBD), to which India is a party. The Biodiversity Act become
surpassed by way of the Lok Sabha on second December 2002 and through the Rajya Sabha on 11th
December 2002.
Biodiversity has been defined under Section 2(b) of the Act as "the variability among living organisms from
all sources and the ecological complexes of which they are part, and includes diversity within species or
between species and of ecosystems".
Biological resources as "plants, animals and micro-organisms or parts thereof, their genetic material and by-
products (excluding value added products) with actual or potential use or value, but does not include human
genetic material."
Bio-survey and bio-utilization: means survey or collection of species, subspecies, genes, components and
extracts of biological resources for any purpose including for characterisation, inventories and bioassay.
Benefit claimers: means conservers of biological resources and their by-products and creators and holders of
knowledge relating to the use of such biological resources.
Commercial utilization: means using biological resources as drugs, industrial enzymes, food flavours,
fragrances, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and
livestock through genetic intervention.

Some salient features of the Act are :

1. To adjust access to biological sources of the us of a with equitable percentage in benefits arising out
of the usage of organic sources.
2. To conserve and sustainably use biological diversity.
3. To set up National Biodiversity Authority (NBA) , State Biodiversity Board (SBB) and Biodiversity
Management Committees (BMC’s)
4. To create National , State and neighbourhood biodiversity fund and its use for conservation of
biodiversity.

23
 5. To admire and protect knowledge of neighbourhood communities and conventional expertise
associated with biodiversity.
6. To preserve and broaden areas of importance from the stand factor of organic range by using
asserting them as organic range heritage websites16

Semiconductor Integrated Circuit Layout Design(SICLD) Act, 2000

It has come into operation in India w.e.f. 4 th September 2000. As per the provisions of this Act, Registrar
Semiconductor Integrated Circuits Layout-Design Registry under the  Ministry of Electronics and
Information Technology (MeitY) has been appointed with its head office at Electronics Niketan, 6 CGO
Complex, Lodi Road New Delhi-110003.The Registry maintains the Register of Layout-Designs and records
in it the registered layout-designs with the names, addresses, and descriptions of the proprietor and such
other matters related to the registered layout-designs.

Semiconductor Integrated circuits Layout- Design Act 2000" is a supplement act to designs. It fulfills the
obligations of TRIPS agreement (Art.35 to 38) regarding the protection of semiconductor integrated circuits
layout- designs.
Definitions

SICLD Act defines the following as:

 "Semiconductor integrated circuit" means a product having transistors or other circuitry elements,
which are inseparably formed on a semiconductor material or an insulating material or inside the
semiconductor material and designed to perform an electronic circuitry function.
 "Layout-design" means a layout of transistors, and other circuitry elements and includes lead wires
connecting such elements and expressed in any manner in a semiconductor integrated circuit.
 "Commercial exploitation" in relation to the SICLD means to sell, lease, offer or exhibit for sale or
otherwise distribute such semiconductor integrated circuit for any commercial purpose.
 Other forms of existing intellectual property protection are also inapplicable to integrated
circuit layouts. Design patents protect the ornamental, but not the functional, aspects of an
article of manufacture described in its drawings. Since integrated circuit layout is more
functional than ornamental, design patent protection is generally inapplicable to integrated
circuits.
 Finally, trade secret law cannot be used to protect most integrated circuits because an
integrated circuit layout may be reverse-engineered.

16
http://nbaindia.org/text/12/TheBiologicalDiversityAct2002.html visited on 12/04/2020.
24
The SICLD Act fulfills India’s responsibility below the TRIPS settlement as approved by using the

individuals of WTO. The intellectual assets safety for Integrated Circuit layout design is a key thing

during the sector, and more so in India as it does no longer have a sturdy intellectual belongings

safety policy in software program. As included circuit format designs is in its early years in India, it’s

vital that the u . S . Boosts of a sturdy protection policy right within the beginning itself and the SICLD

Act presents this type of sturdy safety coverage.

Salient features of the Act

 There is safety of semiconductor integrated circuits layout and designs by using a registration
procedure.
 There is a mechanism for distinguishing which layout designs may be covered.
 There are rules to prohibit registration of layout designs which aren't authentic or which have been
commercially exploited.
 Protection of 10 years period is furnished to layout designs.
 Provisions regarding infringement and proof of validity are noted.
 There are provisions for figuring out charge of royalty for registered layout designs in case of
harmless or accidental infringement.
 Penalties within the shape of imprisonment and fine are imposed for willful infringement and
different offences inside the Act.
 The Registrar is appointed for the reason of management and the Appellate Board is mounted for
facilitating the criminal objective.

Enforcing IP rights in India

IP rights can be enforced by bringing moves to the civil courts or via criminal prosecution. India’s IP laws
set out procedures for both civil and criminal proceedings, as does the Competition Act. Criminal
proceedings do no longer practice to patent and design infringements.

A downside of civil litigation is which you are unlikely to recover large damages, and punitive damages in
opposition to an infringer are rare. However, when you have an identified infringer, it can be beneficial to
launch civil litigation, due to the fact if an interim injunction is granted the infringement can be halted
pending the final results of the case. Damages are automatically provided in instances of copyright piracy
and change mark infringement (which come under criminal litigation); less so in patent instances. Over the

25
years, however, decisions in favour of overseas businesses against local infringers have established the
judiciary’s unbiased technique.

As in other countries, the Indian Government brings actions in crook instances, although in most instances
actions observe lawsuits to magistrates or police authorities with the aid of rights owners. Criminal lawsuits
towards infringers deliver the possibility of an awful lot harsher remedies, which includes fines and
imprisonment.

Mediation or negotiation with an infringer also can be powerful as an opportunity shape of dispute decision.
The Civil Procedure Code gives for a formal mediation procedure.

Self-help considerations
There are diverse matters you may do to make it tougher in preferred for infringers to replicate your product.
For example, you can:
•Think approximately the layout of your product, and the way clean it might be for any person to reproduce
it without seeing your original designs;
•When you hire body of workers, have powerful IP-related clauses in employment contracts. Also make
certain you train your employees on IP rights and protection;
•Have sound bodily safety and destruction strategies for files, drawings, tooling, samples, machinery and
many others.;
•Make certain there are not any ‘leakages’ of packaging that is probably utilized by counterfeiters to bypass
off faux product;
•Check manufacturing over-runs to make sure that genuine product isn't being bought underneath a one-of-
a-kind call.

26
Potential problems faced in India and how to deal with them :

India’s highbrow belongings (IP) rules covers every huge component of the safety of IP. The rules regarding
all kinds of IP were amended or reissued in recent years, especially in response to India’s accession to the
World Trade Organization in 1995.
Although Indian IP regulation is thorough and commonly similar with European IP legal guidelines, there
are still large worries over IP enforcement. A principal motive for subject in enforcement is official put off,
with a backlog of cases at both the civil and crook courts. This means that instances can run for 5 years or
more. There is also a lack of transparency, specifically at a local stage.
A huge feature of the IP environment in India is the big number of small gamers infringing IP rights. This
manner that seizures have a tendency to be small, which requires a sustained and financially draining effort
so one can make an effect.
An benefit for UK corporations working in India is that the felony machine is primarily based on
commonplace law, as within the UK, so the essential strategies are acquainted.

Avoiding problems

The most essential way to keep away from troubles whilst defending IP rights in India is to be prepared. To
make sure that you can anticipate any capacity troubles, you ought to:
•take advice from Indian IP rights experts at an early stage on the way to protect your IP – prevention is
better than treatment;
•consult publications and websites on Indian IP rights and safety in trendy;
•carry out threat assessment and due diligence assessments on any companies and people you address;
•take professional advice from other experts – for example attorneys, local diplomatic posts, Chambers of
Commerce and the UK India Business Council;
•speak to other businesses already doing comparable business in India;
•seek advice from retailers, distributors and suppliers on how quality to shield your rights;
•take a look at with alternate mark or patent lawyers to peer whether there have been previous registrations
of your very own marks, or other IP, in India;
•keep on with acquainted business strategies – don’t be tempted to do matters differently due to the fact
you’re buying and selling in a one of a kind country.

27
Who should take responsibility for your IP protection?

You must ensure that everybody for your enterprise takes some responsibility for IP protection. Many
groups and bussiness depend on the integrity of their IP, and it is able to frequently be one among their
most valuable property. So it need to take delivery of right interest by way of each control and
personnel, as well as different companies that you have relationships with.

It may be practical to nominate a supervisor to have precise responsibility for knowledge and shielding
your IP rights. In companies with legal departments, a legally-trained supervisor might be a good
desire.

Conclusion

IPR are taken into consideration to acquire financial, social and technological advancement that
protects the thoughts/ideas and stimulates innovation, design and facilitates to the introduction of
technology. The numerous varieties of IPR were designed to offer the formal foundation of ownership
of advanced know-how with gain sharing among partners in innovation to create a area of interest
of themselves. It additionally leads to wealth introduction. The characteristic of IPR regime is
likewise to facilitate the transfer of era in the form of joint ventures and licensing. The social
motive of IPR is to offer protection for the consequences of funding in the development of new
generation, for this reason giving the motivation and way of finance for similarly studies and
improvement of information base; whilst fundamental social goal of IPR safety is that the exceptional
rights given to the inventor, geared toward high-quality tuning the stability that needs to be fashioned
between the valid interests of rights holders.

28