ENFORCEMENT OF I.P.R.

ON INDIAN PROSPECTIVE
Global nature of I.P.R.
Intellectual property which is most valuable asset of humanity. Therefore it is a natural right & falling into the category of international laws. Therefore the scope of I.P.R. protection is broader in a global sense. The advances of technology and globalisation is also fuelling off the global characteristics and enforceability of I.P.R. regime.

Scope of Protection in India.

Being a Common Law country and Governments new structure of globalisation, making it more open to market players, India adopted the Patent Cooperation Treaty, 1970 in the year 1997 & also restructured Legislative Acts & Rules on different I.P.R. Segments.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property Definition
A visual symbol applied to articles of commerce with a view to indicate the individuality of particular goods & articles as distinguished from similar goods or articles manufactured or dealt by other persons.
Trademark- identifies the product & its origin - guarantees its unchanged quality - creates an image for the product

Provisions for Registration

Any person claiming to be the proprietor of a trademark can apply in writing to the Registrar. Application must be made in the office of Trade Marks Registry within whose territorial limits the place of business in India of the applicant is situated. Where application is accepted, the Registrar would cause the application to be advertised. Any opposition to registration must be made within 3months from the date of advertisement.

Provisions in case of Infringement

CIVIL REMEDIES:
A Suit for Damages: In which the applicant can file an application praying the court for monetary compensation. Injunction: Temporary Injunction: Which may be granted by the court in favour of the applicant, restricting the respondent for the time being in carrying on any deals in connection with the disputed article. Anton Pillar Order: Where the court will allow the applicant to enter the premises of the respondent to pursue evidence.

TRADEMARK
(The Trade Marks Act, 1999 (The Trade Marks Rules, 2002)

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property TRADEMARK Provisions for Registration
If no opposition is received
or opposition has been decided in favour of the applicant, the trademark is registered.

Provisions in case of Infringement

Mareva Injunction: It is used to restrain the respondent
from removing assets from the jurisdiction of the court. Inter-Locutory Order: The court orders to sell any property or authorise to enter upon any property for taking sample for obtaining full information. The court may also order the surrender of the infringed articles & the profits accruing from any such dealing of those articles, along with the above mentioned remedies.

No court inferior to that of a Metropolitan Magistrate or a District Magistrate shall try any offence under this Act.

CRIMINAL REMEDIES:
Section 482, IPC: Punishment for using false property mark.
Section 483, IPC: Punishment for counterfeiting a property mark used by another. Section 484, IPC: Punishment for counterfeiting a mark used by a Public Servant. Section 485, IPC: Punishment for making or possession of any instrument for counterfeiting a property mark. Section 486, IPC: Punishment for selling goods marked with a counterfeit property mark. Section 487, IPC: Punishment for making a false mark upon any receptacle containing goods. Section 488, IPC: Punishment for making use of any such false mark. Section 489, IPC: Punishment for tampering with property mark with intent to cause injury.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property COPYRIGHT
(The Copyright Act, 1957) (The Copyright Rules, 1958)

Definition
Copyright is the right to copy or reproduce the work in which copyright subsists. It is an exclusive right to do or authorise to do or others to do certain acts in relation to Literary, dramatic, musical & artistic works. Cinematography film. Sound Recording. Copyright law normally does not protect useful articles, it does protect aesthetic elements of an useful article.

Provisions for Registration

The author or other person may make an application accompanied by the prescribed fees to the Registrar of Copyrights. Application must be made in the office of Copyright Registry within whose territorial limits the place of business in India of the applicant is situated. Where application is accepted, the Registrar would cause the application to be inspected as he may deem fit.

Provisions in case of Infringement

CIVIL REMEDIES:
A Suit for Damages: In which the applicant can file an application praying the court for monetary compensation. Injunction: Anton Pillar Order: Where the court will allow the applicant to enter the premises of the respondent to pursue evidence. Inter-Locutory Injunction: The court orders to sell any property or authorise to enter upon any property for taking sample for obtaining full information.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property COPYRIGHT Provisions for Registration
The Registrar may amend or alter any error which may arise by any slip an omission. The application must be published by the Registrar after due inspection.
Any opposition to registration must be made within 3months from the date of publishing. If no opposition is received or opposition has been decided in favour of the applicant, the trademark is registered.

Provisions in case of Infringement CRIMINAL REMEDIES:

Section 63, Copyright Act: Punishment for infringement of copyright or other rights. Section 63A, Copyright Act: Punishment for second and subsequent convictions for infringement of copyright or other rights . Section 63B, Copyright Act: Punishment for infringing copy of computer programme. Section 64, Copyright Act: Power of police to cease infringing copies. Section 65, Copyright Act: Punishment for possession of plates for the purpose of making infringing copies. Section 66, Copyright Act: Punishment for disposal of infringing copies or plates for purpose of making infringing copies. Section 67, Copyright Act: Penalty for making false entries in Register of Copyrights, etc. for producing or tendering false entries. Section 68, Copyright Act: Penalty for making false statements for the purpose of deceiving or influencing any authority or officer. Section 70, Copyright Act: No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of 1st Class shall try any offence under this Act.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property DESIGN
(The Designs Act, 2000) (The Designs Rules, 2001)

Definition
Design means the features of-shape -configuration -pattern -composition of lines or colours, whether in two dimensional or three dimensional or in both forms by any industrial process but does not include a mere mechanical device. Note: A design in order to be registrable must be NEW or ORIGINAL & previously NOT published in India or abroad. A design cannot be SCANDALOUS or OBSCENE, or it cannot be registered.

Provisions for Registration

Application for registration of designs must be made in the prescribed Form & with the prescribed fees. Application must be made to the Patent Office, Calcutta or to any branch office through post, speed post or registered post. On receipt of an application, it would be examined by an examiner as to whether the design is registrable under the Act & Rules and submit a report to the Controller.

Provisions in case of Infringement

CIVIL REMEDIES:
A Suit for Damages: In which the applicant can file an application praying the court for monetary compensation. Injunction: Inter-Locutory Injunction: The court orders to sell any property or authorise to enter upon any property for taking sample for obtaining full information.

A Suit for Delivery-up of the infringing articles.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property DESIGN Provisions for Registration
If the application is in order
& satisfies the requirements of the Act & Rules, the Controller will accept the application and register it. If the Controller refuses an application, any person aggrieved may appeal to the High Court. Registration of the design in the first instance will be for a period of 10yrs. which can be extended by 5yrs.

Provisions in case of Infringement CRIMINAL REMEDIES:

Section 63, Copyright Act: Punishment for infringement of copyright or other rights. Section 63A, Copyright Act: Punishment for second and subsequent convictions for infringement of copyright or other rights . Section 63B, Copyright Act: Punishment for infringing copy of computer programme. Section 64, Copyright Act: Power of police to cease infringing copies. Section 65, Copyright Act: Punishment for possession of plates for the purpose of making infringing copies. Section 66, Copyright Act: Punishment for disposal of infringing copies or plates for purpose of making infringing copies. Section 67, Copyright Act: Penalty for making false entries in Register of Copyrights, etc. for producing or tendering false entries. Section 68, Copyright Act: Penalty for making false statements for the purpose of deceiving or influencing any authority or officer. Section 70, Copyright Act: No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of 1st Class shall try any offence under this Act.

The right conferred by such registration is called a Copyright in Design. Though the nature is different from Copyright Act, yet in case of infringement, provisions of Copyright Act would come in force.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property PATENT
(The Patents Act, 1970) (The Patents Rules, 2003)

Definition
A Patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to manufacture an article according to the invented process for a limited period. The object of granting a patent is to encourage and develop new technology and industry.

Provisions for Registration

Application for
registration of designs must be made in the prescribed Form & with the prescribed fees. Application must be made to the Patent Office, Calcutta or to any branch office through post, speed post or registered post. An application for a patent will not be open to public for a period of 18 months from the date of filing. Thereafter the application would be published & a request for examination of application should be made by the applicant.

Provisions in case of Infringement

CIVIL REMEDIES:
A Suit for Damages: In which the applicant can file an application praying the court for monetary compensation.
Or,

A Suit for an Account of Profits: In which the applicant can file an application praying the court for the account of profits accrued from such infringement. Injunction: Inter-Locutory Injunction: The court orders to sell any property or authorise to enter upon any property for taking sample for obtaining full information. A Suit for Delivery-up of the infringing articles.

ENFORCEMENT OF I.P.R. ON INDIAN PROSPECTIVE

Intellectual Property PATENT Provisions for Registration
The application is examined by examiners of patent to see whether it complies with the requirements of the Act & Rules, whether there is any lawful ground of objection, etc. After examination the Patent Office will communicate with the applicant who would be asked to remove all official objections, if any. Thereafter the application would be published in the Official Gazette. Any person interested may give notice of opposition within three months from the date of such publication. After hearing of such opposition the Patent would be accordingly granted by the Patent Office.

Provisions in case of Infringement CRIMINAL REMEDIES:

Section 118, Patents Act: Punishment for contravention of secrecy provisions relating to certain inventions. Section 119, Patents Act: Punishment for falsification of registry in Register. Section 120, Patents Act: Punishment for unauthorised claim of Patent rights. Section 121, Patents Act: Punishment for wrongful use of words patent office. Section 122, Patents Act: Punishment for refusal or failure to supply information. Section 123, Patents Act: Punishment for practice by non-registered patent agents. Section 118, Patents Act: Punishment for offences by Companies. No court inferior to that of a Metropolitan Magistrate or a District Magistrate shall try any offence under this Act & in case of Counter-claim of patent, the suit would be immediately transferred to the High Court having territorial jurisdiction.

Case references on Intellectual Property.

Infringement of Trade Mark. A was a prior user of a registered trademark Z Z Z products. Marketing of similar kind of products by B under the trade name Z z Z is prima facie deceptive in nature which is likely to effect the goodwill earned by A by creating confusion among customers. Thus interim injunction was granted in favour of A.

Infringement of Copyright. A is the holder of the copyright of his musical composition. A alleges that B has infringed the copyright by using a portion of the musical composition 4-5 times in Bs work. Accordingly expert was appointed by the court to examine if the alleged infringement is valid or not. Experts opinion was that the musical work of B was a copy of the musical work by A. Thus, it gives rise to cause of action in damages and relief of injunction. Hence, A is entitled to injunction restraining B from infringing his copyright in musical composition.

Case references on Intellectual Property.

Infringement of Design. ABC, a Pharmaceutical Company was manufacturing D shaped tablets. XYZ, another Pharmaceutical Company started manufacturing the D shaped tablets without any prior permission from ABC company. On filing a suit by ABC it was examined & reported that ABC had got design of the D shaped tablets registered and the registration had not been cancelled. Thus, injunction was issued by the court restraining XYZ company from manufacturing, marketing and using design registered in aspect of D shaped tablet and/or any other tablet which was having similar shape, colour and configuration or material reproduction of ABC companys registered design. Infringement of Patent. ABC, a Pvt. Ltd. Company has registered patent for specific systems. The company alleges another company XYZ of infringing their patent after it was sealed. XYZ does not counter claim from revocation of the patent but raises the defence that the patented systems were in use since more than 2-3 decades. But XYZ does not produce any independent pleadings or documents in support of its defence. Hence, it was held that the defence set up was perfunctory & casual. Thus ABC company was entitled to injunction against

Case references on Intellectual Property.

Invention subjecting to Patent. XYZ, an institute makes a new machinery which would reduce the labour of farmers as well as the cost of farming to a huge extent which would in turn raise the productivity of crops. Yet the process of working of the machinery is similar to that of the existing system. As per the provisions of the Patents Act, 1970, an inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both & that makes the invention not obvious to a person skilled in that art. Perusal of the above definition clearly show that involvement of technical advance as compared to the existing knowledge or having economic significance is an inventive step and consequently, even assuming that new and useful improvement was made in the system. The same would be invention.

Infringement of Copyright not valid. ABC a Picture Distribution Company alleges XYZ, a Production House of infringing the copyright of stories, screenplay, and dialogues in Hindi remake of a Tamil Film. ABC in his statement mentions that XYZ by receiving consideration of Rs. 9lacs assigned to him copyright in story, screenplay & dialogues of the said film. ABC produced the agreement between the parties but it was seen that the signature of the defendant on the alleged agreement of assignment was materially different from his admitted signature. Moreover, no book of accounts was produced to prove alleged payment of Rs.9lacs in cash to XYZ by ABC. ABC even failed to produce the prima facie execution of agreement. The suit was an attempt to extract some money from XYZ by trying to secure an order of injunction. It was held that the plaintiff ABC was not entitled to Injunction.

Conclusion
The scope of IPR Enforcement is becoming much more wider & relevant with global context of international IPR regime, as set by the rules of international treaties & conventions & guidelines provided by mechanism body of WTO & WIPO. It is also observable that the implementation, as far IPR Rules & other colonial Acts of India, is needed to be much more sharpened in case of any kind of infringement and counterfeiting. Therefore need of competent IPR Attorneys is growing day by day.

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