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IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS-
Intellectual property rights are accepted all over the world due to some important reasons. They were essentially recognized for the acceptations of these rights are:-
- Provides incentive to the individual for new creations.
- Providing due recognition to the creators and inventors.
- Ensuring the material reward for intellectual property.
- Ensuring the availability of the original products.
- For economic growth and advancement in technology sector protection of Intellectual property protection is important.
- They are benefited for the growth of the business in the field of technology.
INTELLECTUAL PROPERTY LAW INTRODUCTION
INTELLECTUAL PROPERTY LAW Comprises of the following Laws:-
- The Laws relating to Trade Marks / Brands (Trade Marks Act, 1999), Property Marks
- The Laws relating to Copyright (Copyright Act, 1957) Artistic Work, Literary Work, Audio Video Records and Software
- The Laws relating to Industrial Designs (Designs Act, 2000)
- The Laws relating to Patents (The Patent Act, 1970)
- The Laws relating to Geographical Indications. The geographical Indications of (Registration and Protection) Act, 1999
- The Laws relating to Internet (Information Technology Act, 2000)
INTELLECTUAL PROPERTY RIGHT INFRINGEMENT-An intellectual property infringement is the infringement or violation of an intellectual property right.
Copyright-It is a type of protection which is given to the authors of original works including literary, dramatic, and musical and certain other intellectual works, which may be published and unpublished.
Copyright infringement (or copyright violation) is the use of material unauthorised that is covered by copyright law, that violates one of the copyright owner's exclusive rights, such as the right to perform the copyrighted work. It is also known as copyright violation.
Patent-It is issued by United States Patent and Trademark Office. A patent is the right to the inventor for an invention.
Patent infringement prohibition act with respect to a patented invention without permission from the patent holder. By means of the licence permission may be granted. It is also known as patent violation.
Trademark - A trademark gives separate identity to the goods and services to make them distinguish from the others. It protects words, names, symbols, sounds. Trademarks can be renewed for forever or as long as they are going to be used. There is no need for registration of a trademark in the U.S.
Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees. Infringement may occur when one party, the "infringer", uses a trademark which is identical to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party which infringes its registration. It is also known as trademark violation.
- To know the reasons infringement of the intellectual property rights.
- To know why to care about IPR?
- What the protection measures and provisional measures?
- Case related to Intellectual Property Right Infringement.
Review of literature-
Economic Effect of Intellectual Property Right Infringement
There is a great effect of Intellectual Property Right Infringement .U.S companies suffer losses in recent years because their Intellectual Property Rights (trademarks, copyrights and patents) are not properly protected abroad. International Trade Commission data is collected from 244 US firms and the data is used to study economic effect of foreign infringement of US intellectual property rights in five sectors of industry. The profit and losses of US suppliers is much as compared to total profits, this implies that the losses are greater than the profits earned by suppliers who are infringing on rights, but that the losses may be least than the benefits to infringers and consumers.
From Research it is pointed out that research results suggest that Lessing profits lost to infringers by one percent would require significant increases in identification and enforcement costs.
TYPES OF DATA USED-Secondary data
SOURCES OF SECONDARY DATA- Data is collected from the journals, Newspapers, Internet
CAUSES OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
- Too much cost of Research and development.
- Litigation delays in implementing ip rights and award of damages
- Software piracy
WHY CARE ABOUT IPR-
- Patents are benefit to the owner of the IP and it add importance to industrial as well as business concerns , discoveries and provide incentives for private sector investment into their development. They all should have separate Research and development center.
- Globalization and advancement of technology has played an important role in intellectual property protection for small and medium sized enterprises. The intangible nature of intellectual property creates challenges for those businesses, to protect their inventions, brands, and business in foreign markets.
- Intellectual property protection is necessary to the success of biotechnology companies. For these companies, the patent system serves to encourage them for the development of new medicines and diagnostics for treatment and monitoring diseases, and agricultural products.
HOW TO OBTAIN INFORMATION ABOUT INFRINGEMENT OF TRADE MARK / COPYRIGHT
The best way to get information about the piracy of trade mark / copyright is companies marketing strategies.
The best alternative is engagement of detective agencies on contractual basis, which have their own other network.
By surveys in major metropolitan cities of India, the information can be obtained about the infringement / piracy of goods and these surveys will lead to and result in the identification of manufacturing, go downs, distribution network.
JUDICIAL SYSTEM IN INDIA
The Indian judicial system is independent from executive / government and it is creation of Constitution of India. It is mandatory to obey the orders of the Courts in India by
Central & State Governments and any non-compliance of the order of the courts are taken as very serious and that may result in the fine and / or imprisonment. In India High Court and Supreme Court judgments has the force of the law. Even in the world the Indian Judicial System is one of the best legal systems which have codified laws and established procedures.
REMEDIES AVAILABLE UNDER INDIAN LAWS
Injunction/ stay against the use of trade
Damages can be claimed
Accounts and handing over of profits
For custody there is appointment of local commissioner/infringing material sealing.
Under order 39 rule 1 & 2 of the CPC the application is filed.
Before the chief judicial magistrate the complaint is filed.
Evidence of the infringement of the IPR.
Under sec. 93/94 the application is filed.
Search of infringing material is done by Police as per orders and directions given by the court.
Lodging of fir and search under section. 156 of the criminal procedure code, 1973.
JURISDICTION FOR FILING CIVIL / CRIMINAL LITIGATION
Civil Cases- The jurisdiction for filing in a civil suit will include given facts and fulfillment of given conditions:-
From where the cause of action has occrued?
Where the violations of IPRs are taking place?
Where the defendants work for gain?
Trade Marks Act, 1999, it provides an exception, to registered trade mark and the registered Trade Mark owner can file a case with in court, from where the holder is carrying its business.
The jurisdiction for filing a case depends on the activities of the defendants.
There is no need to file a suit in different courts separately.
PROTECTION AGAINST INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
The infringement of intellectual property rights (IPRs) are by administrative procedures and legal proceedings. In civil liabilities, the infringer may ordered to stop the violated activities, eradicate the damage done, make public apologies and compensate for all the damages. In administrative measures, they include warnings in order to stop the violating activities, fines, and compensation for damages made.
The interested parties go for mediation, when there is IPR infringement dispute arises. If mediation failed, or interested parties refused to abide by the outcome of mediation, legal proceedings may be instituted with people's court. The interested parties may also request the relevant administrative authorities for actions.
When an IPR infringement dispute arises, the infringed party may institute legal proceedings directly with the people's court at the place where infringing activity takes place...
If an interested party finds that due to emergency or by any delay in stop the infringing activities may cause damages to his/her rights, he may, before instituting legal proceedings, request the people's court to freeze the assets of the infringer.
The people's court will see to it that the infringer, if the infringer is convicted, he will be made to bear civil liabilities for the infringing act. The infringer will be prosecuted for his criminal liabilities where the case is so serious to constitute a crime.
(a) Information and Proof to be Submitted
When infringement of IPR dispute rises, the interested may request the administrative authorities and above at the place of the infringer's domicile In order to make the request to the administration authorities, the interested party should have to submit a written proof of his right and evidence of the infringing act.
(b) Processing by Administrative Authorities
It is the duty of the administrative authorities to handle the dispute and they have to make decision whether the complaint will be processed within 15 days upon receipt of the request and they have to tell their decision to applicant. If the decision is negative, a written will be given to the applicant and if the decision given by the administration authorities is negative than the applicant will given an explanation in written form within 7 days.
(c) Calculation of Compensation
On the request of the applicant, the competent administrative may order the infringer to pay for damages?
For infringing of copyright, the compensation amount is calculated according to the direct damages caused by the infringement and reasonable fees incurred by the copyright holder in investigating and stopping the infringing act.
For infringing of trademark, the compensation amount is calculated on the basis of profits gained by the infringer through the infringement during the infringement period or the damages suffered by the infringed party during the infringement period.
For infringing of patent, the amount of compensation is calculated according to the damages suffered by the patentee or the profit which is gained by the infringer through the infringement. Where it is difficult to determine the damages suffered by the patentee. It is also difficult to calculate that how much profit is earned by the infringer, royalty amount of patent may used as per calculation.
(d) Dissatisfaction with Administrative Punishment Decisions
Instituting administrative proceedings
If the interested party is not satisfied with the punishment made by the administrative authorities than within 3 months from the receipt of the notification of decision, and apply to the local government or administrative securities at higher level for reconsideration of the decision.
Instituting administrative reconsideration
Within 10 days, the authorities should have to decide whether to handle the case or not. If the interested party is satisfied than within 2 months for reconsideration, a decision should be made on that basis. If the interested party is not satisfied with the decision on reconsideration than within the 15 days after the receivable of the notification of the decision, institute administrative proceedings with the people's court.
EFECTIVENESS OF LEGAL ACTION AGAINST INFRINGEMENT & PIRACY
It is practically very difficult to completely prevent piracy / infringement / violation of intellectual property rights as we know India is a very large country in geographical terms and densely populated country. There are own advantages and limitations of civil and criminal legal actions. Mostly piracy in India takes place in small scale industries, unorganized sector
A separate suit has to be filed against each and every company / firm / individual in civil suits, which are filed against infringements, as the infringement by each pirate will amount a new cause of action, separate suits have to be filed against each of them. As compare to criminal remedies the civil remedies are easier.
Due to publicity, campaigning the effectiveness of criminal remedies is more as compared to civil remedies. Any criminal action / prosecution is treated as a social stigma in India which leads to condemnation by the society.
- The judicial authorities shall have the authority to order promptly and effectively provisional measures:
- to prevent an infringement of intellectual property rights from occurring, and in order to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance
- To preserve supportive evidence in regard to the IPR infringement.
- It is the right provided to the judicial the applicant has to give supportive evidences in order to satisfy themselves, and to order the applicant to provide a security or equivalent assurance which is sufficient to protect the defendant and to prevent abuse.
- The applicant needs to supply other necessary information for the identification of the goods concerned by the authority.
- If judicial authorities found that there has no infringement or there is no any threat of infringement of an intellectual property right, the judicial authorities has right that upon request of the defendant the applicant should have to provide compensation for any injury, damages to the defendant.
REGISTRATION OF IPR IS NECESSARY OR NOT
- ot necessary in the case of
- Trade Marks
Yes, necessary in the case of
- Industrial Design
- Geographical Indication
REGISTRATION OF IPR CAN BE CANCELLED OR REVOKED?
- If Fraud
- If there is Misrepresentation
- Against the rights of opponent
- If it is registered by the registrar by error.
- Registration is prohibit under some law
Registration against public policy
UTV software and communications, producers of the film `What's Your Raashee?' has demanded a compensation of Rs 50 crore each from Adlabs Films Limited and UFO movies for piracy and infringement of copyright'. It was movie of Ashutosh Gowariker and its masterprint was stolen from Adlabs .UTV send notice to Adlabs as the masterprint of the movie copied by illegal means. And it was sold to persons who done business of piracy. It caused a large damage. Stolen of masterprint was not an easy task, this was possible only by the help of some highly-placed persons which may be the employee of Adlabs. Only a highly authority person can get the prints and can made copies. UFO movies employee Rajesh Chowdhry was arrested in the piracy of the movie `Aage Se Right'. This shows that the security system is not good and it does not provide any solid protection. The social service branch arrested two more employees of two private companies their names were Neerav Shah, he was the manager of Reliance big pictures and other one name was Nagda Kalapi , he was the head of overseas distribution of Shemaroo pictures. They both get a benefit of Rs 35,000 to 50,000 per film as per the inquiry done by police.
IPR INFRINGEMENT REMEDIES IN USA
The Brand owners which are settled outside USA faces IPR infringement within the United States. Most of the Europe brand owner mistook that the remedy to IPR infringement is only civil and criminal remedies are seldom used. Which is not so.
US use many a remedies to deal with IPR infringement cases. Victim brand owners faces criminal remedy many a times in United States and this is true that many states deals much better with IPR violation remedy as compare to federal agencies. State prosecution requires much less investigations resources and results come faster as compare to other remedy used.
To defend for your brand in US one need to register one's trademark with States Patent and Trademark Office, along with this it needs registration internationally and with USPTO too.
Once an infringer is suspected it is given with a cease and desist notice which is another useful criteria. In this notice description should be there duly that verifies that the product was really infringed.
As evidence the product that is purchased by the infringer should be produced.
There are two main ways of prosecution in US.
- federal prosecution
- state prosecution
Penalty is sometime higher in federal prosecution and sometime the same for both the prosecutions. During the investigation time it is the practice of infringer that he continues to flood the market with counterfeit merchandise .It costs as loss to the brand. So the prosecution should take less investigation time for the sake of brand owner and most of the time state prosecution takes much less time as compare to federal prosecution.
The Intellectual Property Rights (IPR) has social, economic, technological and political impacts. Rapid technology, globalisation and fierce competitions leading to protect the innovations from violations by the help of IPR such as patents, trademarks, service marks, industrial design registration, copy rights and trade secrets. But still there is infringement of Intellectual Property Rights. The Government is also taking measures to prevent them. There are laws regarding the prevention of Intellectual Property Rights Infringement.
P Dalmia from IP & IT Laws DivisionVaish Associates Advocates