Intellectual property right infringement
INFRINGEMENT- violation of a law or right.
INTELLECTUAL PROPERTY – includes patents, trademarks, copyrights and trade secrets are known as intellectual property. Intellectual property rights are the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields.
IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS-
Whether IPRs are a good or bad thing, the developed world has come to an accommodation with them over a long period. 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.
- Intellectual property protection is the key factor for economic growth and advancement in the high technology sector.
- They are good for business, benefit the public at large and act as catalysts for technical progress.
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 form of protection provided to the authors of original works including literary, dramatic, musical and certain other intellectual works, which may be published and unpublished.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 the United States Patent and Trademark Office (USPTO). A patent for an invention is the grant of a property right to the inventor
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 infringement- A trademark distinguishes goods and services from those manufactured or sold by others and indicate the source of the goods. A trademark protects words, names, symbols, sounds, Trademarks can be renewed forever as long as they are being 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 the protection measures taken by the government?
Review of literature-
The Economic Effects of Intellectual Property Right Infringements
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 collected from 244 US firms was used to study the economic effects of foreign infringement of US intellectual property rights in five sectors of industry. The profit losses of US suppliers is large compared to total profits, that the losses are greater than the profits earned by suppliers who are infringing on rights, but that the losses may be less than the static benefits to infringers and consumers.
Research results reveal that Research results also suggest that reducing profits lost to infringers by one percent would require significant increases in identification and enforcement costs.
Goods found to infringe an intellectual property right may not be:
- brought into the customs territory of the Community;
- withdrawn from the customs territory of the Community;
- released for free circulation;
- Placed under a suspensive arrangement, in a free zone or free warehouse.
CAUSES OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
- Too much cost of r&d
- 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 s value to all industrial as well as business concerns, discoveries and provide incentives for private sector investment into their development. They all should have an independent Research and development (R&D) center
- Globalization and advancement of technology have elevated the importance of intellectual property protection for small and medium sized enterprises. The intangible nature of intellectual property create challenges for those businesses, to protect their inventions, brands, and business in foreign markets.
- Strong intellectual property protection is essential to the success of the biotechnology companies in this country. For these companies, the patent system serves to encourage development of new medicines and diagnostics for treatment and monitoring intractable diseases, and agricultural products to meet global needs.
HOW TO OBTAIN INFORMATION w.r.t. THE INFRINGEMENT OF TRADE MARK / COPYRIGHT
The best way to get information and extent about the piracy of the trade mark / copyright is companies own marketing net work.
The another best alternative is engagement of detective agencies on contractual basis, which in alternative have their own 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, unknots, distribution network and retailing chain.
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 entral & 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 judgements 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 for grant of temporary the application is filed.
- Before the chief judicial magistrate/ chief metropolitan 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.
FORUM / 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 a registered trade mark. 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 depend 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 and criminal liabilities, 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.
- Information and Proof to be Submitted
- Processing by Administrative Authorities
- Calculation of Compensation
- Dissatisfaction with Administrative Punishment Decisions
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.
It is the duty of the administrative authorities to handle the dispute and they have to make decision whether the complaint will be processed with in 15 days upon receipt of the request and they have to tell their decision to the applicant.If the decision is negative, a written explanation will be given to the applicant and if the decision given by the administration authorities is negative than the applicant will given a explanation in written form within 7 days.
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.
- 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:
- The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.
- Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.
- The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.
- Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member’s law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
- Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.
- To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.
(a) 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
(b) to preserve supportive evidence in regard to the IPR infringement.