The growth of luxury goods in India has led to a symbiotic relationship between counterfeiters and the black market in India. For example, suppliers established in China and Hong Kong have made cheap counterfeits readily available with Indian importers, reducing the brand value of the 'real' goods. Because of such practices, it is important for foreign companies to protect their intellectual property in India.
What is intellectual property?
According to the World Intellectual Property Organization (WIPO):
Intellectual property refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. Intellectual property is divided into two categories: Industrial Property includes patents for inventions, trademarks, industrial designs and geographical indications. Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.
What laws are implacable in India when it comes to intellectual property?
- The Patent Act, 1970 (Patents | Intellectual Property India): for protection of sceintific or other inventions;
- The Trademark Act, 1999 (Trade Marks | Intellectual Property India) for protection of a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.
- Indian Copyright Act, 1957 (Copyright Office) for protection of original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
- The Geographical Indications of Goods (Registration & Protection) Act, 1999 (GI | Intellectual Property India) for protection of products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.
- The Designs Act, 2000 (Designs | Intellectual Property India) for protection of the 'overall appearance of the product resulting from one or more visual features.' The visual features encompass the shape, configuration, pattern and ornamentation of the product but do not extend to the functionality.
- The Protection of Plant Variety and Farmers Rights Act, 2001 (http://plantauthority.gov.in/) for protection of plant varieties.
- Trade Secrets: In India does not have a specific codified legislation to protect Trade Secrets and Confidential Information. In lieu of a law, Trade Secrets and Confidential Information are considered to be within the framework of contract, competition and intellectual property laws simultaneously. They can be protected by way of restrictive covenants, non-disclosure agreements and other contractual means but also through misappropriation under common law for breach of confidence/ contractual obligations.
Red sole from Louboutin: an example
The famous French fashion brand Christian Louboutin has been struggling to protect its intellectual property for years in India. In August 2018, the Supreme Court in Delhi fined a trader of Rs 20 lakh (about 23,000 euros) for the sale of fake shoes from Louboutin with the trademark 'red sole'. Christian Louboutin has been selling women's shoes with a red sole since 1992. Moreover, the distinctive character - the 'red sole' - is also registered as a trademark in various countries around the world.
Importance of intellectual property protection
India is one of the world's fastest growing economies and shows no signs of stagnation. This vast country, with a population of around 1.2 billion people and the government that has development and reform as its main agenda, is very attractive for foreign companies. The demand for domestic investment is also supported by campaigns such as Make in India and StartUp India, both of which help to open up the market to foreign companies. In a growing market such as India, it is essential to protect your intellectual property and in doing so, seek professional guidance where required.
India is a member of the World Trade Organization, so all types of intellectual property such as trademarks, designs, technical know-how, domain names, patents, etc. can be protected and effectively enforced in case of unauthorized use.
There are, however, some fundamental differences with other countries to watch out for. For example, copyright has to be registered, as this can help to show infringement of ownership in criminal proceedings. Counterfeiting and piracy are widespread and the legal system in India can be complicated and slow. That said, the current government in India is constantly reforming the intellectual property policy.
As with all things in life, prevention is better than cure and there is no substitute for an extensive due diligence procedure. Taking proactive measures to protect your intellectual property before entering the Indian market is the first and most important step. Since intellectual property rights are territorial, it is important that you are properly advised to protect your intellectual property in India.
Miss Legal Tips
If you find that your intellectual property is being violated, whether it is a copied design or a trademark used for counterfeit products, it is important to act quickly. Do not assume that the problem will disappear automatically. Even if you do not worry too much about unauthorized use (for example, because you think your company can bear the losses), there is a risk of damage to your company's overall reputation. This loss of reputation can be significant over time. At this moment, it is necessary that expert legal advice is sought to solve the problem at an early stage.
How can Miss Legal India help?
The content of this article is intended as a general guide to the subject. Specialist advice can be sought from Miss Legal India about the specific circumstances of the case. We can help our clients not only with the registration but also help protect an existing intellectual property. Furthermore, we can also assist in conflict resolution through alternative methods but also through the courts in India.