AN OUTLINE ON INTELLECTUAL PROPERTY RIGHTS IN INDIA

Article submitted by Aatmaja Menon, SASTRA Deemed to be University

What is intellectual property?

Intellectual property refers to the property created with intellect and mindlike music, literary, artistic, cinematograph, sound recording, designs, symbols etc., and Intellectual property law secures and enforces rights on such creations. These rights protect and add commercial value to all products developed by the creators. Intellectual property law helps in encouraging a wide range of identifications to distinguish the work/goods/services of one person from the other.

Intellectual Property Law in India:

On March 3, 1856, a civil engineer, George Alfred DePenning petitioned the Government of India for the grant of exclusive privileges for his invention - "An Efficient Punkah Pulling Machine". And later, DePenning, conceded the Specifications for his invention along with drawings to illustrate its working. These were assented and the invention was granted the first ever Intellectual Property protection in India. The Indian Patent Act was introduced and after that it remained in force for more than 50 years which was later modified and was called “The Indian Patents and Designs Act, 1911”. A complete bill on patent rights was made after Independence in the year 1970 and was called “The Patents Act, 1970”. Later, many other acts came into force for the protection of the other types of Intellectual Property.

Major types of Intellectual property rights:

(i) COPYRIGHT: It is an exclusive right given to the creator of literary, artistic and musical works. It is applicable only on expressions and not on ideas. The original expression will be in a fixed form and for a long period of time. It helps the owner to control reproduction, performance, new adaptations, public performance and the distribution of the works.

(ii) PATENTS: It is a right granted on inventions and provides the inventor an exclusive right to protect his product against unauthorized sale, production or utilization of that product by others. Suit against patents must be filed only in district courts or High Courts and incase of revocation only High Courts have the power.

(iii) TRADE MARK: It is an exclusive right that identifies goods and services of a particular source from those of others and mainly deals with symbols, designs, phrase, words etc that legally differentiates from other products. It recognizes the company’s ownership of the brand.

.

Copyright Act 1957

The Copyright Act 1957 was the first copyright legislation passed by Independent India. This law, until now has been amended for six times. India is a part of the most crucial and important international conventions, governing the area of copyright laws. Under the Copyright Law the rights that are involved are, the right to reproduce the copyrighted work, communication of the copyrighted work to the public domain, adaptation and translation of work. Under this Act, generally the author is considered to be as the first owner of the copyrighted work. This Act provides with administrative remedies, civil remedies and criminal remedies. The remedies provided under this Act against copyright infringement includes imprisonment up to 3 years along with a fine up to Rupees 2,00,000.

Other Major laws and regulations regarding Intellectual Property

(i) Trade Marks Act 1999: This act registers all the trade marks in the country and ensures strict protection of trademark to prevent fraudulent usage of goods and services.

(ii) Copyright Act, 1977: This act mainly deals with the infringement and the violation of cinematograph films, musical, sound recording, literary works etc., and provides protection to all the original and creative works with authorship and ownership

(iii) The Geographical Indication of Good (Registration and Protection) Act, 1999: This act deals with the protection of geographically indentifies goods that are produced or manufactured in a specific territory or region. This may include agricultural, natural or manufactured goods that are distinct from other similar goods because of the quality, culture, reputation or any other extraordinary characteristic that will contribute towards its geographical identification.

(iv) The Designs Act, 2000: This Act deals with the design, shape, pattern, color or composition of a product and which is applied to the products in two or three dimensional form, by an industrial process that is appealing to the eye is registered under the Act.

(v) The Plant Varieties and Farmer’s Rights Act, 2001: This Act was enacted to grant intellectual property rights to plant breeders, researchers and farmers who have developed any new or extant plant varieties.

Infringement of Intellectual property

Infringement of Intellectual Property means the violation or breach of Intellectual Property Rights. Copyright infringement arises when someone else’s work is copied or used with minor changes or exploitation of the essential elements of someone else’s work. It is a cognizable offence and the punishment is imprisonment for 6 months or which can also be up to 3 years or a fine of at least 50000 rupees or which can be up to 2 Lakh.

Patent infringement arises when an invention is commercially utilized without the permission of the inventor. Producing and selling the invention without the permission or authorization of the inventor also comes under patent infringement.

Trademark infringement implies copying or imitating the symbol or the design that represents the brand of the original right-holder. When an unauthorized person uses the trademark, which is same or similar to any other authorized trademark, this is called trademark infringement. According to the Code of Criminal Procedure 1973, the punishment is imprisonment from 6 months till 3 years with a fine of Rs.50,000 up to 2 Lakh or both. Infringement of trade secrets deals with the disclosure and the misuse of the company secrets to the other people outside the company.

Important case laws regarding Intellectual Property:

(i) R G Anand v. Deluxe films (1): The appellant of the case wrote and produced a play called “Ham Hindustani” and soon became very popular, and he filed a suit for violation of copyright for his drama. The Supreme Court dismissed the suit and held that since a violation of copyright amounts to piracy, violation must be proved by clear and cogent evidence.

(ii) N T Raghunathan v. All India Reporter Ltd(2).: In this case, the Bombay High Court held that the abridgment’s ideas and style is copied and that the manner in which those ideas and style were expressed resulted as a violation of copyright.

(iii) Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd(3).: In this case the Bombay High Court held that to resolve copyright infringement two tests required:

(1) Average viewer test: In this test, an impression is created in the minds of the viewers and they will say if an act is a copy of the original and such copying would amount to copyright infringement.

(2) Substance/ Kernel Assessment Test: In this test, it involves assessing significance of the copied portion on rest of the work.

(iv) Trimurthi Films Private Ltd. v. Super Cassettes Industries Pvt. Ltd(4).: The plaintiff challenged that the film “Badshahoo” used a melody of the song “Keh Doon Tumhe” and the Bombay High Court restrained the movie “Badshahoo” from releasing because the film had a remixed version of the song “Keh Doon Tumhe” which was an infringement of the defendant’s film “Deewar”. But finally the court held that the plaintiff had the sound recording rights as per the agreement but not literary or musical rights.

(v) Kross TV India Private. Ltd. v. Vikhyat Chitra Production (5).: A petition was filed against the makers of a Kannada movie “Pushpaka Vimanam” as it was asserted that the film was a duplicate of a Korean movie “Miracle in Cell No. 7”, the rights to which are possessed by Kross TV India Private Ltd. The court held the defendant liable.

(vi) Coca-Cola company v. Bisleri International Private. Ltd (6).: The Delhi Court held that exporting of goods from a country is considered as a sale within the country from where the goods are exported and the same amounts to infringement of trademark.

Hindustan Unilever Ltd. v. Emami

It is a recent important case in which, Hindustan Unilever Ltd. is a consumer goods production company that produces a very popular fairness cream called “Fair and Lovely”. They later on rebranded the name into “Glow and Lovely”. Another skincare and health care product company Emami planned to launch another product named “Glow and Handsome” under the same name and argued in the court that they were planning to fix this name before Hindustan Unilever rebranded their product and that Emami had proprietorship of the trademark. But the court held that Emami, which has not yet brought any products under the name “Glow and Handsome” into the market, it deserves to be restrained from doing so. Hindustan Unilever claimed that it launched its skincare product “Fair and Lovely” in the year 1975 and the men’s range for the same “Fair and Lovely, Men” was launched in the year 2006 and adopted the trademarks of “Glow and lovely” and “Fair and Lovely, men” being the first company to do so. The court held that, the defendant is temporarily restrained from using the name or any other mark that contains any words in respect to grooming, skincare or cosmetic beauty products.

CASE LAWS:

(i) AIR 1976 SC1613

(ii) AIR 1971 Bom. 48

(iii) 2003(5) Bom CR 404

(iv) (2018)1 Bom CR 156

(v) 2017 SCC Online Bom 1433

(vi) MANU/DE/2698/2009