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Intellectual Property Rights
Indian law recognizes and protects intellectual property
rights consistent with international practices. India is also a signatory to
the WTO Agreement on Trade Related Aspects of International Property Rights
(TRIPS) and to the Patent Cooperation Treaty.
Protection is available for the four main types of
intellectual property: patent, trade mark, design and copyright. Additionally,
geographical indications, layout designs of integrated circuits and plant
varieties are also accorded protection in India under specific legislation.
Patents
Patent registration in India is governed by the Patents Act
1970 (last amended in 2005) and the Patent Rules 1972 (last amended in 2006).
The Patent Act provides for the grant of a patent for an
“invention”. An “invention” as defined in the Patent Act means a new product or
process involving an inventive step and capable of industrial application. The
term of every patent is 20 years from the date of filing the application for
the patent. Microorganisms, mathematical or business methods and computer
programs per se are not patentable.
The protection of product patents extends to drugs, food and
chemicals. Compulsory licensing for the export of health care products applies
to countries that have no or insufficient manufacturing abilities. Further, any
pre-grant opposition to patent applications can be made at any time before the
grant of the patent. Post-grant oppositions are also allowed. Patents may not
be granted prior to the date that is six months from the date of the
application.
The Patent Rules were amended in 2006 to provide for greater
transparency and to simplify the procedures for the registration of patents.
Patent applications must be published within one month after expiration of the
statutory period of 18 months from the date of filing of the relevant
application.
Trade marks
Protection of trade marks in India is governed by the Trade
Marks Act 1999 and the Trade Marks Rules 2002. The Act provides for the
registration of trade marks for goods as well as services.
Under the Act, the definition of “trade mark” includes
graphical representations and the registration of shapes of goods, their
packaging and combinations of colors. The term of registration is ten years,
perpetually renewable for a further period of ten years. The Act also provides
for a single application for registration of a trade mark for different classes
of goods and services. Injunctive relief is available for any infringement of
registered trademarks.
Any trade mark which is distinctive and not similar to
another mark used for similar goods may be registered in India. Under Indian
law, unregistered trademarks are protected through the action of “passing off”.
Copyright
Copyright protection in India is governed by the Copyright
Act 1957. It provides for copyright in all original literary, dramatic,
musical, artistic works, cinematograph films and sound recordings. Computer
programs are entitled to protection under the Copyright Act as a literary work.
Transfer, assignment and licensing of copyrights, including computer software,
is recognized in India.
Registration is not compulsory, although it is recommended,
as it provides evidence of a copyright in a court of law. Works of foreign
authors first published in India are granted protection on a reciprocal basis.
India has been a contracting party to the Berne Convention since 1974.
Designs
The Designs Act 2000 governs industrial designs and protects
the aesthetic value of a product.
It gives the holder
the right to take legal action against anyone reproducing registered industrial
designs. The Act provides for an initial registration of ten years that can be
extended by a further period of five years.
Geographical
indications
The Geographical
Indications of Goods
(Registration and Protection) Act 1999 provides for the
registration and protection of geographical indications (indications which
identify a good as originating in a particular territory where a certain
quality, reputation or other characteristic of the good is essentially
attributable to its geographical origin) relating to goods in India, and aims
to protect the use of such geographical indications from infringement by
others.
Semiconductor integrated circuits layout-designs The
Semiconductor Integrated Circuits Layout-Design Act 2000 provides protection
for semiconductor integrated circuit layout-designs for a period of ten years
calculated from the date of filing an application for registration or from the
date of first commercial exploitation anywhere in any country, whichever is
earlier.
Trade secrets
Although India does not have specific legislation to protect
undisclosed information, violation of trade secrets or undisclosed information
is protected under general contract law.
Under the Information Technology Act 2000, a breach of
confidentiality and privacy with respect to electronic records, including the
disclosure of electronic information that is accessed without authorization,
has been recognized as a chargeable offense.