Keith Mack
Intellectual property (IP) laws in India cover a wide range of rights, including patents, trademarks, copyrights, and trade secrets. The purpose of these laws is to provide legal protection to different forms of intellectual properties, encourage innovation and creativity across various sectors, and promote economic growth. The legislative process in India can be lengthy and uncertain, and Indian IP law has been influenced by its colonial history, with legal frameworks based on British laws, including the Copyright Act of 1847, which was an extension of the British Copyright Act of 1842. India has also ratified the World Trade Organization (WTO) agreement, which includes the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), bringing its IP laws in line with international standards.
| Characteristics | Values |
|---|---|
| Administered by | Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM) |
| Type of IP covered | Patents, copyrights, trademarks, trade secrets, industrial designs, geographical indications |
| Objectives | Provide legal protection, encourage innovation and creativity, foster economic growth |
| Benefits | Safety net for investors and businesses, creation of high-quality products, protection of rights of creators and innovators |
| Trademark validity | 10 years |
| Trademark Act | 1999 |
| Copyright Act | 1957 |
| Patents Act | 1970 |
| Designs Act | 2000 |
| Compulsory licensing | Permitted under certain conditions |
| Opposition and rectification | Third parties can challenge the registration or validity of a trademark |
| International alignment | In line with TRIPS Agreement, WTO |
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What You'll Learn
Trademarks
India has laws covering almost all types of intellectual property rights, including trademarks. The country's trademark system is governed by the Trade Marks Act, 1999, which provides a framework for the registration, protection, and enforcement of trademarks. The Indian Trademark Law also protects trademarks under the common law remedy of passing off.
The registration process for trademarks in India typically involves multiple stages, including examination, publication, and opposition. The opposition and rectification procedures allow third parties to challenge the registration or validity of a trademark. The grounds for opposition and rectification can vary, leading to IP law differences that affect trademark protection strategies in India compared to other countries.
To register a trademark in India, there are specific criteria that must be met. For example, Section 9(2)(a) states that any deceitful logo or mark that creates confusion in the minds of customers and hampers the market value of the actual trademark owner cannot be registered. Section 9(2)(b) prohibits trademarks that hurt the religious sentiments of any community in India, as they contravene Article 25 of the Indian Constitution. Additionally, Section 9(1)(c) introduces the concept of acquired distinctiveness, allowing generic marks and logos to be registered as trademarks if they meet certain criteria. These trademarks obtained through acquired distinctiveness are known as secondary trademarks.
It is important to note that the Indian trademark regime does not distinguish between civil and criminal penalties/remedies. The legislation treats both types of penalties as parallel. Additionally, Chapter XII of the Trademarks Act, 1999, outlines offender penalties under Sections 103 to 109.
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Copyrights
India has laws covering almost all types of intellectual property rights, including copyrights. The country's colonial history has significantly influenced its IP laws. During British rule, India adopted several legal frameworks based on British laws, including those related to intellectual property. The first copyright law in India, for example, was the Copyright Act of 1847, which was an extension of the British Copyright Act of 1842. After gaining independence in 1947, India began to develop its own legal systems and policies, but the foundation laid during the colonial period continued to shape its approach to intellectual property.
The Indian copyright framework is governed by the Copyright Act of 1957, which has been amended several times to keep pace with technological advancements and international treaties like the Berne Convention and the TRIPS Agreement. Despite these alignments, there are still notable differences between India's copyright laws and those of other countries. One key difference lies in the duration of protection. India generally has adequate copyright laws, barring some exceptions.
The registration and protection of copyrights in India are administered by the Office of the Controller General of Patents, Designs, and Trademarks (CGPDTM), a subordinate office of the Government of India. This office also oversees the Indian law of patents, designs, trademarks, and geographical indications. The legislative process for IP-related matters in India can often be lengthy and uncertain, with issues remaining pending for many years. This can create uncertainty for industries and complicate their strategic IP enforcement decisions.
To address these concerns, the Indian government has taken several steps. The Commercial Courts Act, enacted in 2015 and amended in 2018, aimed to reduce delays and increase expertise in judicial IP matters. Additionally, the government formed an inter-ministerial group in 2018 to investigate reinstating royalty caps for technology collaborations and brand licensing, limiting the outflow of foreign exchange. A July 2021 Parliamentary Committee report recommended amending the Copyright Act to extend statutory licensing to include internet and digital broadcasters for certain works, which has raised concerns among companies in creative industries.
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Patents
India's patent regime has evolved through three distinct periods: colonisation, post-independence, and globalisation. During British rule, India inherited its patent regime, which was governed by the Indian Patents and Designs Act of 1911. This established a system of patent administration under the Controller of Patents and Designs. After gaining independence in 1947, India began to develop its own legal framework, leading to the introduction of the Patents Act in 1970. This legislation underwent further amendments in 1999, 2002, and 2005, with the most recent changes made in 2016 and 2017.
The Patents Act of 1970 played a pivotal role in the growth of various industries, notably the pharmaceutical industry. It prohibited patents on products intended for medicinal and food purposes, shortened the term of chemical process patents, and expanded the availability of compulsory licensing. These factors collectively contributed to the emergence of a robust Indian pharmaceutical generic drugs industry. The Act also incorporated provisions to reduce the social costs of foreign-owned patents, aligning with the country's socioeconomic conditions.
India's patent law exhibits notable differences compared to other countries. One significant distinction lies in the eligibility criteria for patent protection. Additionally, India's approach to compulsory licensing differs from countries like the United States and members of the European Union, where it is typically a last resort. Indian law permits compulsory licensing under specific conditions, such as when a patented invention is not being utilised in India or is priced excessively.
The administration of patent law in India falls under the purview of the Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM). This office, a subordinate of the Government of India, is responsible for overseeing the Indian law of Patents, Designs, Trade Marks, and Geographical Indications. The legislative process in India can sometimes be lengthy and uncertain, creating challenges for industries in their strategic IP enforcement decisions.
To address these delays and enhance expertise, India enacted the Commercial Courts Act in 2015, which was subsequently amended in 2018. Additionally, there has been a significant increase in patent filings, with over 138,000 patents filed between 2015 and 2021, showcasing a thriving innovation ecosystem in the country.
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Compulsory Licensing
Intellectual property (IP) laws in India refer to patents, copyrights, and other intangible assets. These laws are designed to protect the rights of creators and innovators. India's IP laws have been influenced by its colonial history, with the country adopting several legal frameworks based on British laws during British rule. For example, the Indian Copyright Act of 1957 was modelled after the British Copyright Act of 1842.
The legal basis for compulsory licensing in India can be found in the Indian Patent Act, 1970, and the Indian Patent Rules, 2003. Compulsory licensing under this framework is well-codified and aligns with international agreements. The purpose of granting a compulsory license is to ensure that patented inventions are commercially utilised in India, protecting the interests of those working on or developing such inventions. A compulsory license can be granted after three years from the date of the patent grant.
Section 84(1) of the Indian Patents Act outlines the objective of compulsory licenses, emphasising the need to focus on general considerations related to the working of the patent in India. Additionally, Section 146(2) mandates patentees and licensees to provide information on the commercial exploitation of the patented invention in India through Form 27. Non-compliance creates a presumption of non-working and may contribute to the grant of a compulsory license.
The TRIPS Agreement, a WTO protocol, has also influenced India's approach to compulsory licensing. The agreement harmonises minimum standards for IP protection across WTO members and addresses the failure to work a patent. It includes provisions for safeguarding public order, morality, and health, and defines the conditions under which compulsory licensing is permitted. These conditions include prior efforts to obtain a license from the patent owner, adequate payment to the owner, and non-exclusive and non-assignable use for the supplying domestic market.
In 2012, Natco Pharma was granted India's first compulsory license for manufacturing a generic version of Bayer's Nexavar, a drug for liver and kidney cancer. The grounds for this decision were the drug's unavailability in India and its excessive price, making it inaccessible to the public.
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Trade secrets
Intellectual property (IP) laws in India refer to patents, copyrights, and other intangible assets. India's IP laws have been influenced by their colonial history, with several legal frameworks based on British laws. The first copyright law in India, for example, was the Copyright Act of 1847, modelled after the British Copyright Act of 1842. After independence in 1947, India continued to develop its own legal policies, but the foundation laid during colonial rule continued to shape its approach to IP.
In terms of trade secrets, India does not have specific legislation to protect them. Instead, trade secret protection is based on principles of equity and common law. Section 27 of the Indian Contract Act specifically binds parties to not disclose information contrary to the terms of their contract, including non-disclosure agreements. Additionally, copyright law protects trade secrets involved in business data.
The Indian Penal Code of 1860 and specific subject-matter legislation, such as the Copyright Act of 1957 and the Information Technology Act of 2000, outline offences that may be punishable by imprisonment or fines. While there is no specific offence for trade secret misappropriation, related offences such as criminal breach of trust, theft, or cheating may apply depending on the case.
During trade secret litigation, plaintiffs can employ strategies to obtain and preserve evidence, including applications for the seizure of infringing materials, discovery and interrogatories, and temporary injunctions against the infringing activities of the defendant. Expert evidence is also permissible under Indian law and is governed by the Indian Evidence Act of 1872.
To enhance IP protection, India introduced the Draft of the National Innovation Act in 2008, outlining regimes for trade secret protection. However, the bill was never ratified. India's legislative process for IP matters is often lengthy and uncertain, creating challenges for industries in strategic enforcement. Nonetheless, India has laws covering almost all types of IP rights, and the Commercial Courts Act, enacted in 2015 and amended in 2018, aims to reduce delays and increase expertise in judicial IP matters.
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Frequently asked questions
IP or Intellectual Property laws in India cover a wide range of rights, including patents, trademarks, copyrights, and trade secrets. These laws are designed to protect the rights of creators and innovators over their creations and inventions.
Some examples of IP laws in India include the Indian Trademark Law, the Copyright Act of 1957, the Patents Act of 1970, and the Designs Act of 2000.
IP laws in India provide legal protection to different forms of intellectual property, encourage innovation and creativity, and contribute to economic growth by fostering a competitive environment.
