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INTRODUCTION

With the advent of the knowledge and information technology era, intellectual capital has
gained substantial importance. Consequently, Intellectual Property (―IP‖) and rights attached
thereto have become precious commodities and are being fiercely protected. In recent years,
especially during the last decade, the world has witnessed an increasing number of cross-
border transactions. Companies are carrying on business in several countries and selling their
goods and services to entities in multiple locations across the world. Since Intellectual
Property Rights (―IPRs‖) are country-specific, it is imperative, in a global economy, to
ascertain and analyze the nature of protection afforded to IPRs in each jurisdiction. This
paper analyzes and deals with the IP law regime in India and the protections provided there
under. There are well-established statutory, administrative, and judicial frameworks for
safeguarding IPRs in India. It becomes pertinent to mention here that India has complied with
its obligations under the Agreement on Trade Related Intellectual Property Rights (―TRIPS‖)
by enacting the necessary statutes and amending the existing statues. Well-known
international trademarks were afforded protection in India in the past by the Indian courts,
however, with the notification of the Trade Marks Rules, 2017 (―New Trade Mark Rules‖),
applicants are provided with the opportunity to apply for and obtain recognition of their
marks as well-known trademarks statutorily. Computer databases and software programs
have been protected under the copyright laws in India and pursuant to this; software
companies have successfully curtailed piracy through judicial intervention. Although trade
secrets and know-how are not protected by any specific statutory law in India, they are
protected under the common law. The courts, under the doctrine of breach of confidentiality,
have granted protection to trade secrets.

The Trade and Merchandise Marks Act, 1958 has been replaced by the Trade Marks Act,
1999, The Copyright Act, 1957 has been amended to protect computer programs as ―literary
work‖; The Patent Act, 1970 has been amended by the Amendment Acts of 1999 and 2002
and 2005. The Designs Act of 1911 has been completely replaced by the Designs Act of
2000. The following laws have been enacted to protect newly recognized species of
intellectual property in India:

 The Geographical Indications of Goods (Registration and protection) Act, 1999; ƒ


 The Semiconductor Integrated Circuits Layout-Design Act, 2000; ƒ

 The Protection of Plants & Varieties and Farmers Rights Act, 2001;
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INFRINGEMENT OF IPRs

Intellectual property laws distinguish deliberate theft and innocent infringement. Different
rules apply to different types of intellectual property.

Legislation covers both civil infringement - against patents, trade marks, designs and
copyright - and criminal offences in the case of trade marks and copyright. Ignorance, i.e., not
knowing that a work is protected, is not a defence for either copyright or design right
infringement.

COPYRIGHT

Copyright is only infringed if the unauthorised use involves the whole or a 'substantial part' of
the copyright work. Unauthorised use usually involves copying, issuing copies, renting or
lending, performing, showing, playing, communicating or adapting the copyright work.

In order to succeed with an action for infringement, it is necessary to establish that the
alleged infringing party actually copied the work protected rather than arrived at their work
by means of independent creative activity.

Copyright crime

Deliberate infringement of copyright on a commercial scale may be a criminal offence. This


activity is usually known as copyright piracy and is often also linked to wilful infringement
of trade marks known as counterfeiting where criminal offences also exist. Piracy and
counterfeiting are often also referred to as intellectual property or IP crime.

So, if the infringement of a copyright work is intentional, is on a large scale and copies of a
work are being made for sale, being imported, distributed, sold or put on the internet, then it
is worth informing the police or the local Trading Standards department. They can decide
whether action by them, including possible prosecution, is justified.

Exceptions

For copyright a number of exceptions and defences apply to schools, universities and other
educational establishments when using content that belongs to someone else. These are
explained in more detail in the our copyright guide.
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In general use of a copyright work is not an infringement if it is used fairly and with
acknowledgement, for the purpose of non-commercial research, private study, illustration for
instruction or criticism or review.

PATENTS

Infringing a patent means manufacturing, using, selling or importing a patented product or


process without the patent owner's permission. The owner of a patent can take legal action
against you and claim damages if you infringe their patent.

Exceptions

Defences to patent infringement are given under section 60(5) of the Patents Act 1977. In
general it is permissible to use a patent if it is done privately and for non-commercial
purposes. Also patent laws in most European countries include a ―research exception‖ (or
―research exemption‖) which permits use of a patented invention for experimental purposes
without infringing the rights of the holder.

It is likely that the experimental use defence is becoming increasingly important as patenting
(particular in relation to biotechnology) enters the traditional domains of ‗pure‘ scientific
research carried out within universities.

Prior use

Section 64 of the Patents Act 1977 gives third parties a right to continue acts which would
otherwise infringe a patent, if those acts were begun before the priority date. The prior acts
(or preparations) must have been done in "good faith". This is a common English legal term
and is generally understood to exclude acts done on the basis of information originating from
the inventor and performed without consent.

DESIGNS

A design right protects the design from copying. By registering a design the proprietor
obtains the exclusive right for twenty five years (provided renewal fees are paid every five
years) to make, offer, put on the market, import or export the design, or stock the product for

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the above purposes. These rights are infringed by a third party who does any of the above
with the design, for commercial gain without the permission of the rights holder.

Unlike registered design protection, design right is not an absolute form of protection. With
UK unregistered design right in order to successfully pursue an alleged infringer, it is
necessary to show that the features of the design in question were copied.

For a design protected by design registration however, it is merely a matter of considering the
similarities between the designs irrespective of whether the alleged infringing design might
have been created quite independently from reference to the alleged infringed design.

Registered design

A competitor will infringe if they produce a product which uses the same design as the
registered design, or which uses any design which does not produce a different overall
impression on the informed user. This means that the competitor should not escape being
liable for infringement merely by making trivial changes to the registered design.

Exceptions

There are exceptions which provide that use of a design will not generally be infringement
when, for example, the use was for non- commercial purposes, for experimental purposes or
for citations and teaching purposes. The limitations are that the use is fair and does not
prejudice the normal exploitation of the design and that the source is acknowledged.

TRADEMARKS

A registered trade mark is a property right whereby the owner is granted exclusive rights in
relation the use of the trade mark. If someone uses an identical or similar trade mark for
identical or similar goods or services to a trade mark already in use without the owner's
consent, that person infringes the trade mark. Remedies are available to the owner to prevent
an ongoing infringement, including damages for past infringements.

Exceptions

The Trade Mark Act 1994 specifies the following defences to trademark infringement – all of
which must be done in accordance with honest practices in industrial or commercial matters:

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 Use of another registered trademark - If someone else has in fact registered another
trademark in relation to the same goods and services as an already existing trademark
then there will be no trademark infringement
 Use of own name and address - If a company uses their name and address as a
trademark then this will not be seen as trademark infringement
 Use of certain indications - If someone else uses certain indications such as the kind
of goods or services, the quality and quantity of the goods or services, the value or
geographical origin of the goods or services then this will not constitute an
infringement of a registered trademark
 Use of a trade mark where it is necessary to indicate the intended purpose of a product
or service will mean that there will be no infringement
 The use of an earlier mark - There will be no infringement where there has been use
of an earlier right in the course of trade in a certain area.

Further details are available on trade mark infringement on the UK government website.

Passing off

If you have not registered your trade mark you may still be able to take action against
someone who uses your mark on his or her goods or services without your permission, using
a "passing off" legal action. Passing off comprises three elements, goodwill,
misrepresentation and damage. To be successful you must prove that:

 The mark is yours


 You have built up a reputation in the mark
 You have been harmed in some way by the other person's misrepresentation of
your mark.

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