JAI NARAIN VYAS UNIVERSITY

FACULTY OF LAW
JODHPUR

SESSION – 2021-22
TOPIC – REMEDY TO REDRESS IP INFRIGMENT
SUBJECT – INTELECTUAL PROPERTY RIGHT

SUBMITTED TO:- SUBMITTED BY:-

NITYESH SOLANKI SIR DILIP KUMAR JANI
FACULYU OF IPR ROLL NO. –
JNVU JODHPUR 18BAL50015
 ACKNOWLEDGEMENT
With immense please I, Dilip Kumar Jani student of Jai Narain Vyas
University, Faculty of Law. Presenting Remedies available to
redress intellectual property infringement project report as a part
of semester examination of B.A.LL.B 7 th sem. I wish to thank all the
people who gave me unending support.

I would like to extend my special gratitude towards Intellectual

property rights faculty of JNVU Jodhpur Mrs. Nityesh Sollanki Sir
to guide me in completing my project report.

I would also like to thanks all who have directly or indirectly guided
me in completing this project report

Dilip Kumar Jani

18BAL50015
 INDEX
CONTENT
1 INTRODUCTION
2 MEANING OF INTELLECTUAL PROPERTY
3 NATURE OF INTELLECTUAL PROPERTY
4 KINDS OF INTELLECTUAL PROPERTY
5 INFRINGMENT OF INTELLECTUAL PROPERTY
6 REMEDIES AVAILABLE
7 LANDMARK CASE OF IP INFRINGMENT
6 PROTECTION OF INTELLECTUAL PROPERTY
7 CONCLUSION
8 BIBLIOGRAPHY
Introduction

Intellectual Property (IP) deals with any basic construction of human intelligence such as
artistic, literary, technical or scientific constructions. Intellectual Property Rights (IPR) refers
to the legal rights granted to the inventor or manufacturer to protect their invention or
manufacture product. These legal rights confer an exclusive right on the
inventor/manufacturer or its operator who makes full use of it’s his invention/product for a
limited period of time.

In other words, we can say that the legal rights prohibit all others from using the Intellectual
Property for commercial purposes without the prior consent of the IP rights holder. IP rights
include trade secrets, utility models, patents, trademarks, geographical indications, industrial
design, layout design of integrated circuits, copyright and related rights, and new varieties of
plants. It is very well settled that IP plays an important role in the modern economy.

The Convention establishing the World Intellectual Property Organization (1967) gives the
following list of the
subject matter protected by intellectual property rights:
literary, artistic and scientific works;
performances of performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavor;
scientific discoveries;
industrial designs;
trademarks, service marks, and commercial names and designations;
protection against unfair competition; and
“all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.”

The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most
comprehensive
multilateral agreement on intellectual property. The areas of intellectual property that it
covers are:
(i) Copyright and related rights (i.e. the rights of performers, producers of sound recordings
and
broadcasting organisations);
(ii) Trade marks including service marks;
(iii) Geographical indications including appellations of origin;
(iv) Industrial designs;
(v) Patents including protection of new varieties of plants;
(vi) The lay-out designs (topographies) of integrated circuits;
(vii) The undisclosed information including trade secrets and test data. 
Meaning of Intellectual Property

According to Article 2 of the WIPO (World Intellectual Property Organisation) – Central

Organisation for the protection of Intellectual Property Laws and the expert organization of
the UN, “”Intellectual Property shall include the rights relating to literary, artistic and
scientific works, inventions in all fields of human endeavour, scientific discoveries, industrial
designs, trademarks, service marks and commercial names and designations, protection
against unfair competition, and all the other rights resulting from intellectual activity in the
industrial, scientific, literary or scientific fields.””

Nature of Intellectual Property

1 intangible rights over tangible property

2 right to sue

3 right and duties

4 Coexistence of different rights

5 Exhaustion of rights

6 Dynamism

Kinds of Intellectual Property

The subject of intellectual property is very broad. There are many different forms of rights
that together make up intellectual property. IP can be basically divided into two categories,
that is, industrial Property and intellectual property. Traditionally, many IPRs were
collectively known as industrial assets.

It mainly consisted of patents, trademarks, and designs. Now, the protection of industrial
property extends to utility models, service marks, trade names, passes, signs of source or
origin, including geographical indications, and the suppression of unfair competition. It can
be said that the term ‘industrial property” is the predecessor of ‘intellectual property”.

1 Copyright

2 Patent

3 Trademark
4 Geographical indication

5 Industrial design

6 Plant variety

A new variety of plant breeder is protected by the State. To be eligible for plant diversity
protection, diversity must be novel, distinct and similar to existing varieties and its essential
characteristics under the Plant Protection and Protection Act, 2001 should be uniform and
stable. A plant breeder is given a license or special right to do the following in relation to
different types of promotional material:

1. Produce and reproduce the material 

2. Condition the material for the purpose of propagation
3. Offer material for sale
4. Sell the materials
5. Export the materials
6. Import the materials
7. The stock of goods for the above purposes

Infringement of IP Rights

Infringement is a violation of a right or the violation of terms and conditions in an agreement.

Infringement of IP rights takes place when there is a breach of the terms and conditions
mentioned in the agreement or piracy or direct imitation of the intellectual property of the
competitor. It also takes place when someone just uses someone else’s creation without
giving due credit to the original creator, in cases of unregistered intellectual property, and to
the registered proprietor in case of registered intellectual property. 

I) In case of trademarks where the defendant is found to falsify the trademark i.e. using the
trademark and does the following acts:

1) makes any alteration, 

2) addition or effacement or otherwise, 

3) applies such trademark or a deceptively similar mark to goods or services or any package
containing goods,

4) uses any package bearing a mark which is identical with or deceptively similar to the
trademark of such proprietor, for the purpose of packing, filling or wrapping therein any
goods other than the genuine goods of the proprietor of the trademark without the permission
of the registered proprietor, then it is considered to be an infringement of the trademark.

II) In the case of copyright where the defendant is found illegally reproducing, or distributing
copyrighted material through any medium then it is known as copyright infringement or
piracy with exception of fair dealing in India.

III) In case of patents where the defendant is found manufacturing, selling, offering for sale,
using or importing the patented innovation without the express permission of the inventor is
considered to be an act of patent infringement. 

IV) In case of design infringement the design is copied in exactly the same manner and
applied to an article in which the design has been registered for selling or using it in any
commercial way without the express consent of the proprietor.

Remedies Available

The remedies available are civil and criminal remedies. Civil remedies include passing off in
case of unregistered intellectual property and injunction, damages, rendition of account of
profits in case of registered intellectual property.

Passing off – It is a type of infringement where someone uses the mark of the goods
belonging to the original user on their goods with the intent that consumers will think that the
goods belong to the original user. If someone opposes this passing off then it prevents other
people from using the goodwill of the original user’s business with that of their business.

Injunction – In case of infringement of intellectual property the person who has suffered
losses can stop the other person from using his or her intellectual property by way of
injunction or in common terms also known as stay order. 
The types of injunctions are as follows:

Temporary Injunction – As the name suggests this type of injunction is temporary only for
a short period of time or till the time the court gives the next order.

Permanent Injunction – As the name suggests this type of injunction is permanent in nature
where the injunction is given forever.

Mandatory Injunction – In this type of injunction if the court finds it necessary then it may
grant mandatory injunction to prevent any violation of the terms of a contract or it may ask
the person to do something that comes under the purview of mandatory injunction.

Damages – The person who has suffered losses in the business can easily ask to be
compensated by the opponent by claiming damages in court.

Rendition of account of profits – In this remedy, the defendant is supposed to pay to the
plaintiff the loss suffered by him/her due to infringement of the plaintiff’s intellectual
property by the defendant till the time of injunction.

Delivery-up – The court along with damages on account of profits may ask the defendant to
deliver the infringing labels or marks or goods for destruction or erasure.

Criminal remedies for Patents, trademarks, copyright are as

follows:

Patent – The court if it finds appropriate shall order to seize, forfeit or destroy the goods as it
may think fit without any compensation.

Trademarks – The penalty for infringement of a trademark in which the defendant is found
to falsify the trademark and  imprisonment for a term not less than six months which may
extend up to three years and fined not less than fifty thousand rupees which may extend up to
two lakh rupees.
Copyright – The penalty for infringement of copyright is a punishment of six months
imprisonment which can be increased up to three years and the person can also be fined fifty
thousand rupees which can be extended to three lakhs.

Design – There are no criminal remedies for infringement of design in India.

Landmark intellectual property disputes

Amazon’s 1 click patent

The company Amazon was incorporated in July, 2004 with a mission that if anyone wants to
buy anything they must be able to buy it online through Amazon. Barnes and Nobles was
started in 1873 with a mission to be the best in the retail sector for any product that is
available in the market. Amazon submitted a patent application by which users could place
their order on the Amazon website if they want to buy it just by clicking once on it where the
customer’s credit card details get stored in it after clicking on it just once on September 28,
1997.

The patent was granted to them on September 28, 1999, after two years one week which is
now known as Amazon’s “1 Click” Patent. Amazon’s competitor Barnes and Noble.com
created a cookie called Express Lane that functioned in a similar manner where Barnes and
Noble’s server could capture all the credit card information previously submitted by the 
purchaser which was used to buy earlier product by the purchaser for which a record was kept
by the Barnes and Nobles server.

The court ordered Barnes and Nobles to stop using the feature Express Lane since it infringed
Amazon’s ‘1 click Patent’ where the cookie was an exact replica of Amazon’s 1 click Patent.
Barnes and Noble appealed against the decision. The court again ordered them to stop using
the feature Express Lane. Accordingly, the Express Lane feature was removed by Barnes and
Noble. 
Protection of intellectual property

Why Protect Intellectual Property

The protection of Intellectual Property is important in the face of the fact that it promotes
competition and development. Companies spend huge sums of money to develop new
technologies with the aim of scoring some edge over their competitors. This grant of
protection functions as incentivization of the efforts and money that is spent by the
enterprises for inventing new technology. And the consumer ends up gaining the most as he
is able to avail the newest technologies at cut-throat prices.

In the absence of such protection, individuals, as well as big enterprises, will refrain from
investing and developing new technology. The companies will wait for the other to develop
new technology and then simply copy it without any consequences. Something of this sort is
still afoot in China. The development will come to a standstill and the biggest loser among all
this would be the consumer.

How is Intellectual Property Protected

Intellectual Property has been the subject matter of a huge volume of litigation today. The
reason being, it is really easy to steal or infringe upon the intellectual property of another in
this globalized world. Hence it becomes important that sufficient care is taken to protect our
intellectual property.

There are a plethora of laws across various jurisdictions that are aimed at protecting an
individual’s intellectual property within their jurisdiction. In the Indian context, there are
various laws such as the Copyright Act, the Trademarks Act, Patents Act and the Designs Act
that are formulated for the protection of an individual’s intellectual property. Any individual
can claim protection for their intellectual property under these laws.

On the international level, these laws have been supported and complemented by
international institutions like WIPO. WIPO has been working towards creating a harmonious
playground for intellectual property internationally. It has been administering various
international treaties, conventions as well as agreements for harmonious construction of the
laws of various jurisdiction.
Conclusion

As we have seen infringement of intellectual property is a very serious crime and its
infringement can cause serious harm to the economy of the nation thus we must always stay
away from any kind of infringement of intellectual property. Therefore, since the creator or
the inventor has invested a lot of labour and time in preparing or creating the original product
any kind of infringement can be very demotivating for them which in turn affects the national
economy.
 BIBLIOGRAPHY

1 M.K.BHANDARI – LAW RELATING TO IPR(INTELLECTUAL PROPERTY

RIGHTS)

2 THE COPYRIGHT ACT 1957

3 THE PATANTS ACT 1970

4 THE TRADE MARKS ACT 1999

5 TRIPS (TRADE- RELETED ASPECT OF INTELLECTUAL PROPERTY RIGHTS)

AGREEMENT