Government Policies and Business Regulatory Environment

Intellectual Property

The Intellectual Property Rights (IPR) framework in India is stable and well established in the legal, judicial, and administrative aspects. India is a member of the World Trade Organization and is fully compliant with the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). India is also a member of the World Intellectual Property Organization (WIPO), a body responsible for the promotion of the protection of intellectual property rights throughout the world. India is also a signatory to several important WIPOadministered international treaties and conventions related to intellectual property.21

The Acts covering IPR in India include the Patents Act, 1970 (as amended in 2005); Copyright Act, 1957 (as amended); Trade Marks Act, 1999 (as amended in 2010); Designs Act, 2000; and Geographical Indications of Goods (Registration & Protection) Act, 1999. Intellectual property needs to be registered with the Copyright Office of Controller General of Patents, Designs and Trademarks, whichever is relevant.

On 12 May 2016, the government released the National Intellectual Property Rights Policy that seeks to promote a holistic and conducive ecosystem to catalyze the full potential of intellectual property for India's economic growth and socio-cultural development, while protecting the public interest. Its objectives include creating public awareness, stimulating the generation of IPRs, having strong and effective IPR laws, and strengthening the enforcement and adjudicatory mechanisms for combating IPR infringements.22

The Minister of Commerce and Industry launched the Intellectual Property (IP) mascot – IP Nani – at the conference on National Intellectual Property Rights Policy in New Delhi on 16 May 2018 to create awareness amongst children. The Cell for IPR Promotion and Management (CIPAM), a professional body under the Department for Promotion of Industry and Internal Trade (DPIIT), collaborated with the European Union Intellectual Property Office (EU-IPO) to produce a series of animated videos on IPRs for children with IP Nani as their central character. CIPAM has been conducting IPR awareness workshops for school students since April 2017. Till date, CIPAM has reached out to over 100 schools sensitizing over 8,000 students on IPRs. Additionally, CIPAM also engaged with the National Council of Educational Research & Training (NCERT) to curate content on IPRs. As a result, for the first time, IPRs have been exclusively included in the NCERT textbook for the Class 12 school syllabus. These efforts are aimed at inspiring the next generation of creators and innovators to become proud IP owners.23

Patents

A patent is granted for an invention that is a new product or a process involving an inventive step and capable of industrial application. 'New invention' means the subject matter has not fallen in the public domain or that it does not form part of state-of-theart technology. One of the inventive steps taken are the feature(s) of the invention that involves technical advancement as compared to existing knowledge, and that makes the invention not obvious to a person skilled in the art. Industrial use means that the invention is capable of being made or used in industry.24

Patents are governed by the Patents Act, 1970, as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patent (Amendment) Rules, 2016.

Normally, a patent obtained in India is not enforceable in another country, as patent protection is a territorial right. However, as India is a signatory to the Patent Cooperation Treaty (PCT), applicants can file a single international patent application under the PCT and simultaneously seek protection for an invention in more than 153 countries.25

India is also a signatory to the Paris Convention for the Protection of Industrial Property. The convention provides for the right of priority, due to which, based on a regular first application filed in one of the contracting states, the applicant may, within a certain period of time (12 months for patents), apply for protection in any of the other contracting states.

These subsequent applications will be regarded as if they had been filed on the same day as the first application, i.e., they will have priority over applications filed by others during that period.26

India follows a first-to-file patent system. A patent application can be filed either by the true and first inventor or his/her assignee, either alone or jointly with any other person, or the legal representative of a deceased person. An applicant can file a patent application if they have a place of residence, business, or domicile in India. A patent application can be filed with the Patent Office at any of its four locations (Kolkata, Delhi, Chennai, or Mumbai) depending on territorial jurisdiction, or online through its official website, www.ipindia.nic.in.27 Foreign applicants who do not have a place of business or domicile in India can file their applications through an Indian patent agent.

All the records are digitized and freely available through the website. The entire processing of patent applications is electronic, and information relating to processing is made available on the website in realtime, thereby providing valuable information to the applicants. A patent is granted for a uniform period of 20 years from the filing date of the patent application, for inventions in all fields of technology, and it is a territorial right.28

The Patents Act, 1970, provides for the enforcement of patents by way of suits on infringement. The patentee may file an action for patent infringement in either a District Court or a High Court. The relief that a court may grant includes an injunction and, at the option of the patentee, either damages, or an account of profits. The court may also order that the infringing goods be seized, forfeited, or destroyed without payment of any compensation.29

The improvement in IP administration during the last two years, along with amendments of Patents and Trademarks Rules, digital reforms, and re-engineering of IP procedures has resulted in improved performance, decreased pendency, and higher rates of dispensing of IP applications

Copyright

The Copyright Act, 1957, protects original literary, dramatic, musical, and artistic works and cinematograph films and sound recordings from unauthorized use. Unlike patents, copyright protects the expression and not ideas. There is no copyright protection for ideas, procedures, methods of operation, or mathematical concepts as such. It is not necessary to register a work to claim copyright in India. Acquisition of copyright is automatic – it comes into existence as soon as a work is created and requires no formalities. However, a certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to disputes on ownership of copyright.30

The Copyright Office has been set up to provide registration facilities for all types of works and is headed by a Registrar of Copyrights. The Copyright (Amendment) Act, 2012 extends copyright protection in the digital environment, ensuring the right to receive royalties for authors and music composers, exclusive economic and moral rights to performers, equal membership rights in copyright societies for authors and other right owners, and exception of copyrights for the physically disabled to access any works.31

In order to ensure smooth and flawless compliance of the Copyright Act in the light of technological advancement in the digital era and to bring them in parity with other relevant legislations, the Department for Promotion of Industry and Internal Trade, Government of India has now proposed to introduce the Copyright Amendment Rules, 2019. The proposed amendment is seen as a clarification by the government that the statutory licensing scheme under Section 31D applies to all types of broadcasting, including internet broadcasting, and is not restricted to only radio and internet broadcasting.

Cinematography

The Ministry of Information and Broadcasting, Government of India has introduced the Cinematograph Act (Amendment) Bill, 2019, in Rajya Sabha in order to check film piracy.

The Bill proposes to criminalize unauthorized use of an audio-visual recording device for making or transmitting a copy of a film or any part of it, with a punishment of three years of imprisonment or a fine of INR 1 million or both.32

Trademarks33

Under the Trade Marks Act, 1999, a person who is the proprietor of the trademark can apply to the Registrar of Trademarks for the registration of its mark for goods and services. A trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one undertaking from those of another undertaking. A trademark can be a device, brand, heading, label, ticket name, packaging, sign, word, letter, number, drawing, picture, emblem, color or combination of colors, the shape of goods, signature, or a combination thereof.

Though the registration of a trademark is not compulsory, registration is prima facie proof of title and gives the registered proprietor the exclusive right to use the trademark and take legal action in case of infringement. If a trademark is not registered and if someone not having a right in the trademark uses that trademark, the proprietor of the trademark can take the common law action of passing off.

The initial registration is valid for a period of 10 years, which is renewable for an indefinite period of time. India also acceded to the Madrid Protocol, which allows applicants to file an application for international registration in other countries that are members of the protocol through a simple form and by payment in one foreign currency. Applicants can also file indicating India as the designated country in forms. This enables the time-bound processing of trademark applications.

With several new initiatives, the first examination of trademark applications, which previously took 13 months, has been brought down to just one month as of January 2017.

Design34

The essential purpose of design law is to promote and protect the design element of industrial production. It is also intended to promote innovative activity in industries. The existing legislation on industrial designs in India is contained in the Designs Act, 2000.

The essential requirements for the registration of a 'design' under the Designs Act, 2000 are as follows:

  • The design should be new or original, not previously published or used in any country before the date of application for registration.
  • The design should relate to features of shape, configuration, pattern, or ornamentation applied or applicable to an article.
  • The design should be applied to any article by any industrial process.
  • The features of the design in the finished article should appeal to and be judged solely by the eye
  • Any mode or principle of construction or operation or anything which is, in substance, a mere mechanical device cannot be registered as a design.
  • The design should not include any trademark or property mark or artistic works as defined under the Copyright Act, 1957.

The registration of a design confers upon the registered proprietor a 'copyright' on the design for the period of registration. It gives the proprietor the exclusive right to apply it to any article in the registered class. A registered proprietor of the design is entitled to better protection of his intellectual property. He can sue for infringement (recoverable amount cannot exceed INR 200,000), and license or sell his design as legal property for a consideration or royalty.

Any person (including a firm, partnership, or body corporate) claiming to be the proprietor of the design can apply for its registration. The application can be filed by the applicant directly or through an agent. The duration of the registration of a design is initially 10 years from the date of registration, which may be extended by five years through the relevant application.

Geographical Indications

Geographical Indications (GI) are covered as an element of intellectual property under the Paris Convention as well as the TRIPS agreement. A geographical indication identifies agricultural/natural/ manufactured goods as originating or manufactured in the territory of a country/region/locality in that territory, where a given quality, reputation, or other characteristics of such goods is essentially attributable to its geographical origin. In cases where such goods are manufactured goods, one of the activities of either the production or processing or preparation of the goods concerned must take place in such territory, region, or locality as the case may be. The Geographical Indications of Goods (Registration & Protection) Act, 1999, is the relevant Act in India35 in such matters.

In order to encourage the promotion and marketing of Indian GI products, the government launched a common GI logo, which will act as a certifying mark that can be used to identify all registered GIs irrespective of the categories. The tagline 'Invaluable Treasures of Incredible India' represents the spirit of Geographical Indications of India and will be helpful in effective branding and promotion of GIs. This will also help engage with more people on the subject of GIs and make them aware of the benefits of the GI tag.

  • 21.Intellectual Property Facts, Make in India, http://www.makeinindia.com/policy/ intellectual-property-facts, accessed 30 September 2020
  • 22.National Intellectual Property Rights Policy, Department for Promotion of Industry and Internal Trade, https://dipp.gov.in/policies-rules-and-acts/ policies/national-ipr-policy, accessed 25 September 2020
  • 23.Suresh Prabhu launches Intellectual Property mascot – IP Nani, Department for Promotion of Industry and Internal Trade, https://dipp.gov.in/ sites/default/files/Press-Release-IP%20Mascot_16052018%20.pdf, accessed 25 September 2020
  • 24.Intellectual Property Facts, Make in India, http://www.makeinindia.com/policy/intellectual-property-facts, accessed 25 September 2020
  • 25.World Intellectual Property Organization, http://www.wipo.int/pct/en/, accessed 25 September 2020
  • 26.Summary of the Paris Convention for the Protection of Industrial Property (1883), WIPO, http:// www.wipo.int/treaties/en/ip/paris/summary_paris.html, accessed 25 September 2020
  • 27.Filing of Patent Application, http://www.ipindia.nic.in/writereaddata/Portal/ IPOGuidelinesManuals/1_28_1_manual-of-patent-office-practice_and-procedure.pdf, accessed 25 September 2020
  • 28.Intellectual Property Facts, Make in India, http://www.makeinindia.com/policy/intellectual-property-facts, accessed 25 September 2020
  • 29.Section 108: Reliefs in suit for infringement, Patents Act, 1970, http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps108.html, accessed 25 September 2020
  • 30.A Hand-Book of Copyright Law, Ministry of Human Resource Development, http://copyright. gov.in/documents/handbook.html, accessed 25 September 2020
  • 31.Ibid
  • 32.Public comments sought on Cinematograph Act (Amendment) Bill, Ministry of Information and Broadcasting, https://mib.gov.in/sites/default/files/Public%20Notice%20-%20Amendment%20of%20Cinematograph%20Act%20Bill.pdf, accessed 25 April 2020
  • 33.Intellectual Property Facts, Make in India, http://www.makeinindia.com/policy/intellectual-property-facts, accessed 25 September 2020
  • 34.Designs, Controller General of Patents, Designs and Trademarks, http://www.ipindia.nic.in/ faq-designs.htm, accessed 25 September 2020
  • 35.Intellectual Property Facts, Make in India, https://www.makeinindia.com/policy/intellectual-property-facts, accessed 25 September 2020
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Rajiv Rajendran
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