Protecting Your Intellectual Property in India

Intellectual Property Rights (IPR) refers to the legal protections granted for creation of the mind. These may include inventions, ideas, literary and artistic works, symbols, names, images, and more! IP rights encourage innovation and creativity by providing exclusive rights to creators and inventors.  

Understanding the various types of intellectual property (IP) and how to ensure complete IP protection is crucial for any business owner to safeguard their unique innovations or ideas from imitation. In this blog post, we will share the nitty gritty of intellectual property management in India to simplify the process. So, let's get started! 
 

Understanding Intellectual Property Rights (IPR)  

India announced its first National IPR policy in 2016 to modernise and streamline IP processes, increase awareness, and strengthen enforcement.  

The Department for Promotion of Industry and Internal Trade (DPIIT) oversees the various portfolios of Patents, Designs, Trademarks, Copyrights, Trade Secrets, Geographical Indications, and Semiconductor Integrated Circuits Layout Design. The Cell for IPR Promotion and Management (CIPAM) under DPIIT is responsible for implementing the National IPR Policy, promoting IP commercialization, and raising awareness.  

Over the past five years, the Indian government has taken significant steps to strengthen its intellectual property management. These efforts include the following:  

• Modernising IP offices and increasing manpower 

• Utilising IT and technology to enable the e-filing of applications and issuing digital certificates  

• Reducing the number of trademark forms to simplify the application process 

• Using video conferencing to facilitate remote hearings for IP applications 

• Expediting examination procedures for quick approval 

• Conducting campaigns and workshops on IP issues to spread awareness 
 

What are the 4 Main Types of Intellectual Property? 

1. Copyrights

Copyright grants creators and innovators exclusive rights over their original work to allow creators to control how their work is used and distributed. This 'work' includes:  

• Literary works, including novels, poems, stories, scripts, blog posts, and even website content. 

• Artistic works, including patterns, paintings, designs, etc. 

• Musical works, including compositions, beats, singles, tunes, etc. 

• Dramatic works, including plays, screenplays for cinema, etc.  

This legal protection is crucial to ensure that they can profit from their efforts.  

Copyright protection kicks in automatically upon creation, offering an initial term of 60 years after the creator’s death. For published works, you need to register your copyright with the Controller General of Copyrights (CGC) for additional legal weight under the Copyright Act of India, 1957.  

Registration Procedure for Copyright

Step 1: Register 

Create a user ID and password and register at the official site.  

Step 2: File the application form  

Fill out and submit the application form either manually in the copyright office or through the e-filing facility available on the official website. The applicant can be an author, owner of an exclusive right to the work, or an authorised agent.  

Step 3: Review of Application 

After filing, the copyright examiner will review the application within 30 days once the diary number is issued. The registration process is then divided into two segments:  

• Objections Raised: If an objection is raised, a letter is sent to both parties and called for a hearing by the registrar. If the objection is rejected, the applicant can proceed.  

• No Objections Raised: If no objections are raised, the Examiner scrutinises the application for any disparities. If no discrepancies arise and all necessary documents are provided, the applicant can proceed.  

In case of any inconsistencies, a letter of discrepancy will be sent to the applicant. The applicant must reply and it will be followed by a hearing. Once the difference is resolved, the applicant can move on. 

Step 4: Issuance of Registration Certificate 

The information regarding the application will be recorded in the register of copyrights, and a certificate of registration will be granted if the Registrar is satisfied with the application.  

2. Trademarks

A trademark is a recognisable sign, design, phrase, sound, or expression that sets a product or service apart. Trademarks are essential for creating brand identity and loyalty, helping consumers differentiate between various products and services. 

Trademarks are registered with the Controller General of Patents, Designs & Trademarks (CGPDTM) for a renewable term of 10 years.  

Trademark Registration Procedure

Step 1: Conduct a Trademark Search 

Research thoroughly and ensure the trademark is unique 

Step 2: File Trademark Application 

Submit your application at the Trademark Registry India, either online or in person.  

Step 3: Verification of Applications and Documents 

The scrutiny process by an Examiner can take 12-18 months. The mark is either accepted, conditionally accepted, or objected to.  

Step 4: Publication in Trademark Journal 

If accepted, the mark will be published in the Trademark Journal to invite objections from third parties.  

Step 5: Grant of Trademark Registration 

If no objections are raised, a registration certificate is issued, valid for 10 years and renewable.  

3. Patents

A patent is a legal right given to an inventor for an invention, granting them exclusive rights to use, make, and sell it for a set period. Patents are vital because they incentivise innovation, offering inventors protection for their intellectual property.  

Securing a patent involves proving novelty, non-obviousness, and industrial applicability through a rigorous registration process with the CGPDTM.  

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The Process of Obtaining a Patent in India

Step 1: Invention Disclosure 

Document the invention's details, including functionality and uniqueness, and ensure the invention is novel and not already patented.  

Step 2: Drafting the Patent Application 

Prepare a detailed application, including claims that define the scope of the invention.  

Step 3: Filing a Patent Application 

Apply to the Indian Patent Office online or in person.  

Step 4: Request Examination  

Request examination within 48 months from the filing date. The patent office will examine the application to ensure compliance with legal requirements.  

Duration and Renewal of Patents in India 

In India, a patent is valid for 20 years from the filing date. To maintain the patent, the holder must pay annual renewal fees, or it may lapse.  

4. Trade Secrets

Trade secrets are a type of intellectual property (IP) that protects confidential information, which can be sold or licensed. Although India does not have a specific statute to protect trade secrets, there are various legal frameworks like contract law, the Information Technology Act, 2000, etc., to safeguard trade secrets. 

For something to be considered a trade secret, it must: 

- Has commercial value  

- Be known only to a limited group of people 

- Be protected by reasonable measures to maintain its secrecy, like confidentiality agreements with business partners and employees 

In March 2024, the 22nd Law Commission, led by Justice Ritu Raj Awasthi, recommended the introduction of new legislation to protect trade secrets. The proposed law would include exceptions for whistleblower protection, compulsory licensing, government use, and public interest. 

Additional Types of Intellectual Property

Geographical Indications

Geographical indications protect the reputation and origin of products associated with specific locations, such as Darjeeling tea or Kanjivaram sarees.  

Plant Varieties

The Plant Varieties and Farmers’ Rights Protection Act of 2001, allows for the protection of newly developed plant varieties, securing the hard work of innovators and promoting sustainable agricultural practices.  

IPR Dispute Resolution in India

1. Civil Litigation

Filing a lawsuit in civil courts is the most common method of resolving IPR disputes. This can lead to injunctions, damages, and other legal remedies.  

2. Criminal Prosecution

In cases of counterfeiting and piracy, criminal prosecution can be pursued under relevant statutes, leading to penalties and imprisonment. This serves as a strong deterrent against IP theft.  

3. Alternative Dispute Resolution (ADR)

Mediation, arbitration, and negotiation are alternative methods to provide quicker and more amicable resolutions to IPR disputes. These methods are often less adversarial and more cost-effective than traditional litigation.  

For robust IP protection, it is wise to consult a legal advisor specialising in IP rights. Contact Contract Bazar, a legal service provider offering comprehensive solutions to protect your intellectual property. Visit their intuitive online platform and request IP protection from the comfort of your home. Their advisors will guide you at every step to safeguard your assets. 

Case Studies of IPR Enforcement in India 

FMC corporation & ORS. V Natco Pharma Limited

The dispute between FMC Corporation and Natco Pharma Limited centred around patent infringement concerning the manufacturing process of Chlorantraniliprole (CTPR), an insecticide. FMC Corporation claimed that Natco Pharma violated its patent (number 298645, IN' 645) by using a process similar to the one described in its patent. 

The court examined whether Natco Pharma's manufacturing process infringed FMC Corporation's patent, focusing particularly on the application of the Doctrine of Equivalents. FMC argued that Natco's substitution of thionyl chloride for sulfonyl chloride constituted infringement under this doctrine. However, the court determined that differences in reagents and reaction sequences distinguished Natco's process as non-infringing. 

India has been continuously upgrading its IP protection laws, supported by robust policies, modernised systems, and specialised enforcement mechanisms. By building a comprehensive IP strategy, businesses can turn their unique ideas into assets, contributing to their success and the nation's economic growth. Whether you're a small business owner, a tech innovator, or a creative artist, understanding and safeguarding your intellectual property is key to exploring the full potential of your ideas or innovations. 

Author

Advocate Prerna Oberoi

4.7 | 100+ user ratings
Sector 41, Noida
14 years

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