Intellectual Property Rights Infringement

Authored by Aman Oraon

Introduction

An Intellectual Property infringement is the breaking of the law of someone's Intellectual Property. Which means using others' content without their consent. There are several types of IP rights, these include copyrights, patents, and trademarks. Therefore, an IP infringement may for instance be a copyright infringement, patent infringement, or infringement of a registered trademark.

In recent years the concept of protecting rights of patents, copyrights, utility model rights, design rights, and trademarks and has been the subject of much debate. IPR infringement refers to the illegal use, duplication, or sale of goods and services. Companies or individuals who infringe on IP laws produce counterfeit or pirated goods and services.

Provision to deal with Intellectual Property in India

In India, Intellectual Property is governed under the,:

• Patents Act, 1970;

• Trademarks Act, 1999;

• Copyright Act, 1957;

• Designs Act, 2001;

All of these Acts will constitute a civil infringement but some copyright and trademark infringements may also be criminal offences.

“Ubi jus, ibi remedium”, a famous maxim means: where the law has given the right, there should be a corresponding remedy for its breach in its places. In the case of intellectual property, violation of rights is typically termed as IPR infringement and it ultimately affects the reputation, identity and goodwill rights of the holder.

IP rights are infringed when a product, service or invention protected by laws is violated, copied or otherwise used without having consent from the person who owns those rights of the goods and services.

Criminal implications of IPR infringement

In intellectual property rights violations, generally, people steal the ideas, inventions, expressions, creativity, symbols, etc. of others to earn profit. In this era of digital technology, such types of wrongdoings are not common. The scale of infringement is problematic and sources and methodology for much research are not open to scrutiny[1].

Intellectual Property rights can be protected through civil or criminal procedures. However, in the case of IP infringement criminal procedure is only provided to trademark infringement and copyright infringements.

Criminal provision and cases under IP Law

Section 103-108, of the Trademark Act 1999, provides for imprisonment and a fine as punishment for infringement of a trademark on various grounds.

Section 115 also gives power to police officers for search and seizure. Thus, new trademarks made by introducing dissimilarities in the trade mark, which are based on the materials or features which are already incorporated in the existing trademarks, may not constitute an infringement of such earlier trademarks if the totality of impression produced by the new mark is not confusing even though there are many similar parts in the trade mark.

Under section 63-69 of Copyrights Act 1957, this section gives provision for imprisonment as a punishment for copyright infringement. Explanation to Section 51 clarifies that the reproduction of literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an infringing copy. The offences under provision, section 63 of the Copyright Act and under section 103 of the Trademark Act are non-bailable[2]. These relevant provisions clearly prescribe a punishment of up to 3 years. And therefore, such offences would be non-bailable.

Accordingly, the Court held that the offences under Section 63 of the Copyright Act and 103 of the Trade Marks Act are non-bailable and cognizable.

‘In trademark infringement cases irreparable damage, in this sense is relatively easily shown since infringement may easily destroy the value of a mark or at least nullify expensive advertising in a way that is hard quantify for the purpose of an inquiry into Damages. Section 28 of the trades gives the exclusive right to experience to show in cases involving infringement of intellectual property rights, considerable importance is attached to the decision of the application for the grant of interim relief[3].’

Conclusion

Intellectual property rights infringement over the Internet has an impact not only on direct investment in creative industries but also has an economic impact on society as a whole.

Though the criminal remedy for IP infringement is not very expensive and easy to file a case and quicker to resolve than the civil remedy. In civil remedy, it does not compensate the IP holder. Also, the specialization of criminal courts, as well as investigation agencies in IP crimes, is not separately given under the law and in absence of that, all the effort for availing the criminal remedy may go into vain. Apart from criminalisation, if misused, it may have counter effects. Thus, though the criminal remedy is the most effective remedy, the same is a double-edged sword that needs to be used cautiously.

IP infringements threaten national economies, public safety and health.

The fact that IPRs move in complicated with different policies, such as like fair and competition policies, which might impede quantitative analyses of the general economic impact of IPR protection policies.

References: [1] Department for Business, Innovation & Skills, An Independent Report By Professor Ian Hargreaves, ‘Digital opportunity: a review of intellectual property and growth’ (18 May 2011) [2] Hon’ble Bombay High Court in Piyush Subhasbhai Ranipa v. The State of Maharashtra, Anticipatory Bail application No. 336 of 2021 [3] Hindustan Pencils (P) Ltd. v. India Stationary Products Co. AIR 1990 Delhi 19,1989 (2) ARBLR 72 Delhi,38 (1989) DLT 54