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IP Enforcement in India

 

Knowledge is the key to sustainable socio-economic development of a country. It is refreshing to see that India is also recognizing the same as reflected in the recently notified “National Intellectual Property Rights Policy” dated 12th May, 2016. The “vision statement” gives prominence to “knowledge” being the main driver of development whereas “the mission statement” emphasizes on a dynamic, vibrant and planned intellectual property system in India to foster creativity and innovation and promote entrepreneurship.  The policy lays down 7 objectives summarized as under:

  1. IPR awareness across society regarding the economic, social and industrial benefits of IPRs;
  2. Generation of IPRs;
  3. Robust legislative framework balancing right-holders and public interest;
  4. Modernized service-oriented administration and management of IPR;
  5. Appropriate valuation and commercialization of IPR ensuring suitable economic rewards to the right-holders;
  6. Effective enforcement and adjudicating mechanism to combat IPR infringements;
  7. Human capital development to expand human resource and strengthen institutions, teaching, training, research and skill building for IPs.

The Department of Industrial Policy and Promotion (DIPP) has been appointed as the nodal body to coordinate, guide and supervise implementation and future development of IPRs in India.  However, the responsibilities for actual implementation of the plans will remain with the respective Ministries and Departments of Government of India.

Though the policy contains vision statement and mission statement with aforesaid objectives, there is no roadmap provided for effective implementation or mechanism for achieving the same. For instance, while objective no. 6 of the policy focuses on effective enforcement and adjudication, it does not specify any mechanism or guidelines to achieve it.

The need of the hour is immediate legislative reforms as the level of piracy has climbed upwards over past decades and the existing IP laws, despite being TRIPS-compliant, have failed to effectively address the same.  The “low risk high profit” ratio coupled with absence of stringent deterrence such as penal/statutory damages has caused proliferation of piracy to alarming levels. The existing mechanism to claim damages requires right-holders to discharge heavy burden of proof, protracted litigation and heavy expenditure which discourage right-holders from taking sustained action. Therefore, the concepts and mechanism to award statutory and penal damages, regulated timeframe and deterrent punishment need to be urgently introduced by way of legislative reforms.

Likewise, online piracy is a menace and an immediate challenge. While online portals have facilitated doorstep delivery of products to the consumers, they are equally being misused by counterfeiters to sell counterfeits while maintaining their anonymity.  There is an urgent need to bring intermediaries and the brand owners together on the table to discuss and find a symbiotic mechanism to curb online piracy without compromising the benefits of online market places.

Though the Government has taken the initiative of putting in place The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 dated 01.01.2016, it is a legislation seeking to expedite all kinds of commercial disputes of specified value.  However, the expertise which would facilitate efficient disposal of intellectual property cases and progress of intellectual property rights in India can only be achieved if specialized intellectual property benches are set-up in respective courts at all levels headed by judges having expertise in IP laws.  Equally important is the need for harmonization of IP laws in terms of their enforcement and in particular such provisions which determine the jurisdictions of courts to deal with them.  It is ironical that a brand owner is mandated to seek recourse to courts located in different jurisdictions for redressal of its grievances related to same trade mark, depending on whether it is registered or unregistered.  Currently, a brand owner can invoke the jurisdiction of a court in relation to registered trade marks, where the brand owner is carrying on business, but cannot do so if it relates to an unregistered trade mark.  Similarly, a patentee or a registered proprietor of a design cannot invoke the jurisdiction of courts where it is carrying on business though patents and designs are as much part of intellectual property regime as trade mark and copyright.  There is a need for harmonization of laws.

No enforcement mechanism can be efficient unless the recordal of administrative rights is granted within stipulated timeframe.  Though the National IPR Policy recognizes the need to modernize the administration and management of IPRs and make it service-oriented, the immediate measures which are required to be undertaken to achieve such objective are awaited.

It is expected that with recognition of intellectual property as a valuable tool for economic growth, suitable legislative reforms, enforcement measures and mechanisms will be undertaken by the Government of India to achieve an efficacious and efficient IP enforcement regime in India.

 

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