LEGAL REMEDIES FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN INDIA

Author: Sradha Santhanu

Introduction:

Rights in all aspects of life are important and must be protected, mainly because they directly impact one’s own safety and security as a functioning member of society. However, one sector of rights that do not necessarily have the same implications, but are just as important is Intellectual Property Rights. The manpower, both physical and mental, that goes into every creation and innovation cannot always be quantified monetarily. Nevertheless, the innovators, thinkers, and creators that directly aid the progress of their societies and the world at large must be given adequate protection from unfair infringement. Intellectual property rights are paired with remedies that are allocated to ensure fairness in the academic and other communities.

In India, intellectual property rights are protected by various legislations such as the Trade Marks Act, 1999 The Patents Act, 1970 (as amended in 2005), The Copyright Act 1957, The Designs Act 2000, The Geographical Indications of Goods (Registration and Protection) Act 1999, The Semiconductor Integrated Circuits Layout Design Act 2000, The Protection of Plant Varieties and Farmers' Right Act 2001, The Information Technology Act 2000, etc.,[1]Each act is designed to protect specific fields of intellectual property rights. If one of these rights is infringed, the aforementioned legislations provide remedies to restore balance in fairness. They are as follows:

1. Granting monetary damages

One of the most common ways of settling IPR infringements all over the world is through paying damages for the loss incurred by the original creator.[2] This could be in the form of loss of revenue, damage to reputation and its monetary consequences, or loss in sales and claims. The wrongdoer is made to pay the suffering party in proportion to the monetary injury they are responsible for. In most cases, this remedy puts the victim of an infringement in the same position he was before the loss. The only exception may be in case of loss of reputation or goodwill as that is not a quantifiable asset.

2. Enhancing damages

In the case where the wrongdoer has indulged in some particularly immoral behaviour, certain courts enforce the payment of enhanced damage. Enhanced damages, as the name suggests,are the increase of damages beyond the amount of loss incurred to the victim.[3] This method of punishment is retributive in nature. It is done with the sole purpose of punishing the wrongdoer and not necessarily to compensate the bearer of the losses.

3. Covering legal charges in addition to damages

This remedy is a rather uncommon path, but not completely unused. It is very similar to enhancing damages. The wrongdoer is forced to cover and pay for the legal charges of the opposite party in certain circumstances where the judge sees fit.

4. An Injunction to stop further infringement

Courts generally order an injunction to immediately cease the use or circulation of the intellectual property that is the subject of the case.[4] Although this is a solution to stop future infringements, it does not restore the affected party in the position they were before the infringement by the opposite party. Therefore, injunctions must be paired with appropriate compensations for previous losses. This is also the reason why injunctions are uncommon in the case of patents. The general course of action in such cases is the payment of damages.

5. Demolition of goods or intellectual property incurred through infringement

Partially similar to an injunction, this method also guarantees further use or circulation of the goods or intellectual property acquired through infringement. The difference is that this remedy also calls for the permanent destruction of the goods or intellectual property. An example of this may be a customer database that is procured through exploiting the secrets of a company during or after one’s period of employment. If this remedy is ordered by the court, it would force the wrongdoer to permanently destroy all copies of the list in their possession. This would ensure the opposite party that there will be no continuation of infringement or losses.

6. Criminal Remedies

For Trademark and Copyrights infringements, criminal action is also a possible remedy. However, it is only applicable to these two categories of infringements.

Section 63 of the Copyright Act 1957 states the following: Offence of infringement of copyright or other rights conferred by this Act.

Any person who knowingly infringes or abets the infringement of—

(a) the copyright in a work, or

(b) any other right conferred by this Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than six months or a fine of fewer than fifty thousand rupees.[5]

The same punishments apply to infringement of trademarked property too.

Conclusion:

The courts in India has power to grant reliefs for violation of intellectual property rights. The various IP laws prevailing in India have both civil and criminal remedies. Both the civil and criminal remedies available are distinct and not dependant. Most importantly, they can be served simultaneously.

References:

[1]Vijay Pal Dalmia, India: Intellectual Property Laws in India- Everything you must know,MONDAQ (13 December, 2017)https://www.mondaq.com/india/trademark/654712/intellectual-property-laws-in-india-everything-you-must-know [2]IPR Infringement: Everything you need to know, UPCOUNSEL,https://www.upcounsel.com/ipr-infringement [3]Ibid. [4]Ibid. [5] Copyrights Act, 1957

Edited by Gemma Maria Suzzana. A, Associate editor, Lawgic Stratum