Intellectual Property

Intellectual Property

Intellectual Property Rights (IPR) define variety of legal rights in protecting products of intellectual efforts of creativity in the fields of applied art, knowledge and fine arts. Intellectual Property Rights mainly comprise trademarks, patents, copyrights, service marks, designs and confidential information (trade secrets), know-how etc. and the right to protection from passing off.

Intellectual Property Rights are of great importance for modern industry and commerce and, in many cases, they have a very important effect on the economy and on the very existence of a business entity. These comprise the right to control the use of technology and creative material, including rights in artistic, musical and literary work, and the right to prevent others from misusing certain marks, symbols and drawings and in distinguishing one from the other.

Intellectual Property Rights provide means by which an owner or an innovator can protect his innovation etc. from being imitated and safeguard the fruits of his valuable labour and investment. Basically, an Intellectual Property Right gives a remedy to its owner against those persons who want to reap the fruits of his ideas or work. The value of Intellectual Property cannot be defined in monetary terms; it is an intangible asset of any corporate entity.

The concept of Intellectual Property in India and the world over is taken to be sacrosanct and an impregnable propriety, which has made Patents, Trade Marks, Copyright, Designs, Transfer of Technologies rather tangible in terms of propriety. New laws, for the registration and protection of these rights, have replaced the old and antiquated laws, not only in India but also all over the globe. IP rights are valuable assets, which need to be scrupulously guarded against from being infringed or misused. The value of Intellectual Property cannot be defined in monetary terms; it is an intangible asset of any corporate entity.

Need for protection of IPR
In today’s highly competitive business world, brands play very crucial role and protection of IPR is vitally important for pharmaceuticals, biotechnology and other such industries that require risky investments in innovation and discovery. Whenever a new product, service or an idea is created, there is every possibility that some one else may imitate it. Whether or not it could be imitated, depends on the fact whether IPR exists. There is little point in holding IPR unless they can be enforced against people who infringe or intend to infringe the same.

The projection of a product being based in its category now requires not just product positioning but also the positioning of the company manufacturing it. Corporate identity has, therefore, become very important. People buy products or services for what they mean more than what they can do. Similarly, ideas and innovations are required to be protected in order to avoid exploitation.

IPR also enable one to keep ahead of competitors and in order to be used effectively, it is absolutely essential to understand the complex and legal principles of IPR and apply them in practice.

How to protect IPRS?
It is always advisable that as and when business houses or industrialists adopt a mark/label/logo or create any copyright in a musical, literary, artistic work, or work of a new invention, or develop a three dimensional new design, they should immediately apply for registration of the same under the relevant Act. Needless to say that once registration is obtained, the owner is entitled to statutory protection and has a better title to support his claim in a court of law in case of any dispute. For example, in case of piracy of a brand, copyright, patent or a design, if the owner is having registration under the relevant Act, he can sue the infringers in an action for infringement, and if it is an action for infringement, in all likelihood, the courts are readily inclined to grant protection by way of an ex parte injunction.

In case the owner under the relevant Act does not obtain the registration, one would have to take an action for passing off, which is a common law remedy. In an action of passing off, the courts are a bit hesitant in granting an injunction because they have to rely more on evidence and personal discretion before granting the relief. Therefore, it is advisable to obtain registration as early as possible.

Apart form the above two remedies, criminal action can also be taken under the relevant Acts along with the Indian Penal Code and the Code of Criminal Procedure against infringers and those selling spurious goods in the market.

Enforcement of intellectual property rights in India.
From the day the Indian economy opened up and from 1999 onwards, there has been a lot of pressure on the Indian Government to make its IP laws more stringent and in conformity with the TRIPS Agreement. As a result, India has been compelled to enact in almost each subject of the IP laws a new Act and introduce major amendments. For example, a new Trade Marks act 1999 came into effect from 15th September 2003, a new Designs Act came into force in 2000, a new Copyrights Act came into effect on 1999, and a new Patent Act came into effect recently.

In the above new Acts, many amendments have been made by which various important provisions have been added to cover technical, administrative and legal issues, whereby registration process has been made quicker and easier, penalties for offences have been increased, and penal actions have been made more stringent. Details of the amendments so made can be provided if asked for.

Broadly, IP rights in India can be enforced by two ways – Civil action and Criminal action.

Civil action: As and when a party proposed to take a civil action against any infringer, it has to file a Suit for infringement or passing off in a High Court or a District Court (Both courts have jurisdiction). If the Plaintiff has a good prima facie case, Indian Courts are very prompt in granting ex parte Injunctions, restraining the Defendant, his agents, servants etc. from infringing a Trade Mark/Copyright/patent or a design of the Plaintiff. Once an ex parte injunction is granted, we, at Aggarwal Associates, can say, from our vast experience of the last about 40 years, that in all probability, the matter is settled between the parties and a Compromise Decree is passed by the Court in favour of the Plaintiff and against the Defendant. This entire process takes a period of approximately one month to four months. However, an ex parte injunction can be obtained within about three days or so after receiving the documents and instructions from the client.

In case the Defendant fights the case, in that case also, the trial of the entire Suit can be finished within a maximum period of two years, depending upon the caliber and efficiency of the Lawyer representing the Plaintiff in the Court. This has become possible because there have been changes in the Indian Civil Procedure Code, whereby now evidence is led by way of Affidavits instead of oral evidence as heretofore.

Criminal action: In so for as criminal actions are concerned, in case the counterfeiting goods are available on a large scale in the market, and a Mark, or a copyright is infringed at different places, we generally advise our clients to file a Criminal Complaint before the Court of Metropolitan Magistrate and obtain Search & Seizure Orders against Unknown persons/firms etc. After receiving instructions from the Clients with complete address of the Accused along with necessary documents, we at Aggarwal Associates can assure our clients that we shall be in a position to obtain Search & Seizure Orders from the court within ten days or so after receipt of the instructions. Once Search & Seizure Orders are obtained from the Court, the raids can be got conducted with the help of the Police and fake/duplicate goods can be recovered and seized by the police and the same remain in Police custody.

Criminal action leads to criminal prosecution. Once raids are conducted, goods are seized and Police files its report before the Metropolitan Magistrate, charges are framed against the accused and immediately thereafter from the same day, the criminal prosecution turns out to be a State case, meaning thereby that it becomes a case between the State and the accused, and the Counsel for the Complainant or the Complainant need not attend the matter.

Aggarwal Associates, with their long and varied expertise, provide essential and much-needed services in this field of the law, which include

  • registration of copyrights, designs and patents, servicemarks and trademarks;
  • maintenance of the rights worldwide;
  • monitoring of misappropriation of clients’ proprietary rights;
  • advice on acquisition, sale and licensing of such rights;
  • drafting agreements and Deeds, and negotiating a wide range of contracts in relation to these rights, namely, Agreements relating to domestic and foreign product-distribution, assignment and licensing, purchasing, selling and perfecting interests in intellectual properties as a part of Corporate take-over or restructuring, advertising, telemarketing and promotional industry agreements, and those involving know-how and trade-secrets.
  • Handling registrations, disputes and litigation of any nature, involving clients’ intellectual property rights before all forums in India.
  • Writing of patent specification by scientific and technical experts and filing of patent Applications

The Firm handles all aspects of registrations and litigation relating to Patents, Designs, Copyright and trade secrets; and liaison with local lawyers, in relevant jurisdictions. The Group also specializes in the conduct of litigation in parallel jurisdictions.

The experienced and committed team of lawyers are eminently equipped and can be relied upon to tackle the present day intricate, knotty, complicated and varied issues related to IP matters, including brands, marketing and advertising, trademarks, designs, copyrights, patents, passing off, parallel imports, trade libel, unfair competition and regulatory concerns such as labeling.

Aggarwal Associates have also a well-known and reputed International client portfolio and have been instrumental in fighting, with success, in securing their IPR in world famous brand names

Besides, they have been diligently pursuing the prosecution of various world famous Patents, Trade Marks, Copyrights & Designs applications and are associated with many of leading law firms worldwide.