ip law
source: https://asiatimes.com/2018/07/has-intellectual-property-protection-gone-too-far/


The Indian Competition law enacted when the parliament passed it in the year 2002. Following which the President of India accorded assent in next year. The law got amended by the Competition (Amendment) Act of 2007[1]. The law comprises a total of 9 chapters, each domain has its importance and covers all paramount parameters which needed to be generalized. The Competition appellate tribunal and Competition Commission of India are the sub-groups of this act. The boards consist of a chairperson along with 6 members. The main agenda of the act is to motivate and support the young entrepreneurs and local businessmen in establishing their platform and make sure no fudge and controversy get puzzled up which could hinder both the party’s reputation and work.

Intellectual Property Law[2] was introduced in India around the early 20th century. However, it came into act post-Independence and went through several filters until it received the final approval. All forms of regulations w.r.t the IPR have been amended in the past decade, as a response to India’s extension to WTO in 1995. An IP law protects any consumer’s patents, copyright, trade secret, layout design, etc. from being illegally used by outsiders/third party.

  • Indian Copyright law had been introduced pre-independence and went through multiple amendments until 2012. It is generally referred for dramatic, musical, and artistic work. And its validity period is 60+ years.
  • Indian Trademark law has a separate administration that supervises the designs and patents of a product. The office comes under the Ministry of Commerce and Industry. The purpose is to represent a company or an individual’s firm in a single view. It could either be a design or a number or any other creative framework which would distinguish its products and deliverables from others.
  • Indian Patent law’s main purpose is to monitor the growth of a firm and supplement to new Start-ups and to subsequently increase the fees of the administration through the process of tenure. Patent law has to undergo three major steps to qualify. First is the novelty i.e. the invention shouldn’t be existing already. Second, an inventive step that showcases an individual or group’s creativity. And lastly, its application i.e. whether or not the invention can be used for public activity. The validity for this is 20 years after filling the form.

Trade law includes multiple clauses such as the trade of goods either artificial or natural. A trade secret has separate clauses such as non-disclosure agreement or the competent agreement which allows an employee to share the details of a company to its rival firm which could increase its advantage in all parameters. A highlighted feature about the IP laws in our country is the large numbers of small players infringing IPR related laws. It means that the majority of the seizures tend to be small which requires financial and sustained support to witness a steady impact.

These departments are governed by CGPDTM[3]. India recently established its first IPR policy in 2016 with a motive of bringing out “creative minds from a developing nation”. In the era of digitalization and modern technology, an adjacent modification got affixed in our Competition and IPR laws. The law witnessed multiple cases in the name of patents, trademarks or secrets, etc. Few cases added more parameters in the law whereas few cases misunderstood its definition. The national innovation system (NIS)[4] had established certain layers upon which they could help their ideas and creativity get published in a legalized way such that no party gets harmed.


Some products require technology to manufacture, while some need it on an occasional basis. However, there are consent and proper contract which is been vailed, where two or more firms use common technology to produce a common product, in such cases, the competition law overviews the process in a tactical way and ensure a healthy practice is been maintained. But some domains such as Pharma companies who have the motive to manufacture the same drug and use the same technology in such cases both IPR and Competition act monitor the sector rigorously. Certain parameters such as cost of production and the selling price are based on the socio-economic development of a particular country and the R&D sector of that firm upon which incentives and relaxation are prevailed.

The basic methodology of ensuring license usually fails due to antitrust examination and generalize anti-competitive regularities for the trade, as in times of territorial limitations in the procedure of licensing. Contrasting the anti-trust law which regulates general trade agreements often fails to address intricate issues with respect to IPRs, and further fails to correct them. A proper approach to IP as stated by section 3(5)[5] of the Indian Competition law is ineffective while handling IPR related trade practice law. Under article 40[6] of Trade-related Aspects of Intellectual Property rights, allows us to take a stand against the misuse of the law through anti-trust legislation. India has allowed cross-licensing under its Competition law but failed to safeguard it’s anti-competitive licensing in the era of modern technology.

With the help of the National Innovation System (NIS), the firms push themselves to deliver creative outcomes. As it provides a cultural space for any firm to create a high-level innovative output and behavioural contexts and practices. Certain domains such as climate change and environment-related technology are been carried in a friendly manner. In these case IPRs law alone doesn’t rule out a decision, few primary and fresh laws are implemented for the transfer of technology. The concept of technology advancement has contributed in an enormous way in the Indian Competition and IP law.

India is an epitome for hosting an open and free market which means the price is solely dependent on the buyer and seller and the type of negotiation they’re going through. And these prices aren’t regulated by any government or authorized body. Therefore, in cases when a multinational firm which uses Magnus technology to manufacture a decent quality T-shirt, a negative impact would be harnessed to the local vendors. However, the Indian Competition law regulates free and fair opportunity for everyone but challenging someone’s daily earning money for personal benefit is justified? Contemplating innovations and getting influenced by technology are two different entities. Both of them are supposed to be kept either together or parallel depending on the context and background they require.

Although the Indian IPRs are rigour and usually compared with the European laws still there are some concerns and doubts related to ours. A major concern is the bureaucratic delay having a backlog of cases both in civil and criminal remedies. We’ve seen multiple cases in the past where cases tend to run more than 4 years and also the lack of transparency can be witnessed among the lower courts. However, a manifold of challenges and opportunity takes place when both get implemented together and following which we’re going to analyze33333333 here onwards.

Arguments :


The convergence of the virtual and real-world would be the driving force in for the concept of innovation and changes in all aspects. The instantaneous growth of data and convergence of a variety of data had led to growth in communication and information technology in all areas of the economy. The introduction of movies and music in a bogus manner had revolutionized this sector to a greater extent. Also, ease in entry conditions helped the market to operate in a more effective way. By this, it opens a create opportunity for the market firm to transform and rapidly emerge as a market leader. For the IPRs and competition laws, the emerging scenario presents the opportunity for market foreclosure. The trade-off between firms in this very sector merits special attention while applying the respective laws.

As the era of digitalization came into play, where customers can buy everything by sitting at home. This particular era has revolutionized the economy and related laws of a particular country. Taking the example of a magus renowned firm, Amazon, who has amazed its customers through its deliverables and service.

At the same time, this firm has impacted a lot to local vendors back here in India and similar to other countries. Not only in terms of products but even the banking sector has been modified in the same way. It has blurred the lines between physical and net banking. But less consideration has been given as people back in rural areas hardly have knowledge about online banking. However, schemes are been made for educating the rural side about online banking and related banking work. As per the report, less than 10% across the country in rural areas have knowledge about online transactions and banking.


The agriculture sector has always been the backbone of India’s economic growth and contributed in a significant amount in the net development of the country and has reported as the third-highest number of biotech firms in the Asia-Pacific region. The introduction of technology has always been useful as long as it minimizes the cost of production for the farmer. These technologies are protected by the IPR laws which allow a farmer to sow or exchange the seeds as per his/her requirement. This method has improved the rate of diffusion and as a result, the condition of the agriculture sector has increased significantly. Therefore, with the introduction of technology positive changes are been witnessed. The community of flora and fauna variety regulation of the European Union has passed a commission for the developing countries to introduce a diversity of patents for the plant’s variety under article 27.3(b)[7] of WTO agreement on the (TRIPS) to develop and protect the diversity of plants within the IPRs.

Farmers feared the IPRs as it would make them work according to their demand. Although improvement in seeds, proper water supply system and introduction of technology for biotech was a necessity. Our country has developed a dual methodology of IP for the agriculture sector. Certain plant varieties that are sensitive are protected under the Protection of plant variety and farmers whereas normal plants come under patent acts. On a practical level, farmers and the authority do get confused about which one to implement. Due to this the IP law hasn’t produced any successful outcome and failed multiple times due to its complex structure.

Pharmaceuticals –

The pharma sector is the most controversial sector in terms of generalizing laws and acts. The first and the most foremost filtration comes for innovators and generic manufacturers. Where a patent generally relies on a drug that has a brand name rather than a local innovator medicine. For example, drug A is patent protected and the cost is higher as compared to others and drug B is not been legalized to sell but is slightly inexpensive and gives the same treatment, then the doctor after seeing the financial constraints of the patient would scribe drug B.

The innovation or R&D of a particular drug is risky and often expensive. Therefore, the consumer base prefers buying the old model as long as the new and modified version is more accurate and inexpensive. For example, drug A gains sufficient profit in a particular period under monopoly and has enough money to invest in R&D and therefore increasing consumer base. However, if the patent laws are effective than the competition law will make a free and fair chance to everyone therefore the supply for R&D would be comparatively less in every firm. Adding on, certain diseases are faced only in India, due to which a limited number of medicines are been manufactured, and hence, R&D requires more incentives to code it. Pricing in countries varies depending on the socio-economic background and local licensing.

With the absence of competition law, the exclusivity of a product can be leaked down in lower markets. For example, if drug A holds exclusivity in a particular market and when an external firm is been rejected by the primary firm in the name of monopoly then drug A spreads out its patent in the adjacent market. With the absence of laws, the firm of drug A can gain incentives by imposing restrictions on other firms and earn an individual profit. The competition law can be further violated if a firm pays a sufficient amount to another for the delayed release of a product in the name of compensation. Section 3(d)[8] of the Indian Patent Law is meant for extending the life of existing plants through natural means. Introducing technology can aid the industry in ways such as innovation and modifying competition etc.

Economy –

The role of competition law is to enhance the efficiency of the respective market and prevent market failure, the role of IPRs are to promote the inventions of the emerging brands. Recently, there has been a rise in the number of IPRs and Competition related cases in India. Thinking about the judicial decisions and the factors of this policy in order to formulate the actual condition of myriad countries and support to develop the fundamentals for the prolific process for the CCI and IPRs. The current Indian Competition Act is not well established to deal with critical scenarios. It highlights the lack of rules along with the deficit in cases that makes the condition more complex and help suggest an improvement for Indian IPRs and Competition laws.

We all know the economy is just about to trade and it’s important to keep the secret of trade within oneself. A trade law includes a cluster of competition, contract, IPRs, and innovations. Also, it has a touch of criminal law as well, which can vary depending on rationalization. The remedial part of these laws is variant with the causes of action. In order to seek a trade secret, an incentive approach should opt so as to get legal protection for patents and marks. In our country, the improvement of IPRs is directly proportional to political ideology the further impact the incumbent government. These political acts and economies tend to achieve a synchronized method of FRAND[9] licensing in India. This new technology would help in enhancing the convergence of competition and patent law.

Critical Analysis:

Crocs Inc. V. Bata India limited and other subsequent companies

  • The case was filed by Crocs limited in the name of design infringement of their highlighted model. The case was filed against India’s branded companies like Bata, Action, and liberty, etc. The case, however, didn’t go in favour of Crocs limited and the final decision included the fact that since the design is not a new invention and has been in the market from the past few years. Till the time when these designs aren’t used as a trademark of their companies in the following days, there is no harm in using it for modelling and framing. The case was filed and fought under section 2(d)[10] of the design acts.
  • The argument also included the fact that the very design is the showcase of Crocs upon which they build and attract their consumer base and when other firms would take only the design or sides of that particular model, that would hinder its brand image. On reply, the court said certain leverage shall be provided to Crocs
    (limited monopoly) and the primary design should be registered under design acts. But referring to the model, which isn’t a new invention, no resistance shall be implemented to other firms but not using the “ Extras “ of that model.

Indian Record Manufacturing Co. Ltd .V. Mr ILLAIYARAJA

  • The case was filed by Indian Record Manufacturing against Mr.Illaiyaraja and Unisys info solution Pvt.Ltd. for the infringement of its musical works and recordings used in 30 different regions and genres films. Mr Illaiyaraja who was the composer and producer of such music and recordings gave the administering rights of these works to a Malaysian based music company. However, as per the contract signed between Indian Record manufacturing and Mr.Illaiyaraja stating that IRM is the sole and exclusive owner of the copyrights of these records and music. And the same documents were processed before the court. On reply, the opponent claimed to be the composer and author of the song, it’s his primary right to sell the rights of his song, and even by proofs, they have no liability to push it against him. The opponent’s claim was just through his words and no documents.
  • The court carried out the judgment by processing in the terms “Author” and “Owner”. According to the copyright act, the “Author” has the primary right to claim and own the music/film of the composer as per article 17b (2)[11] of the copyrights act. The statement made by the opponent was majorly emotion and conclusive based and no proper evidence was supported by the same. The only thing which he was vested by was the special laws that protect any singer, composer, filmmakers work from being copied or misused as per section 57[12] of the copyright act.  Also, the author takes the initiative about modifying the record by multiple methods, it’s the author who should’ve major handling or disintegrate the blending as per section 19(3)[13] of copyrights act. In the end, the case went in favour of Indian Record Manufacturing.
  • For future reference, if the composer wishes to extend it’s composed music/recording to an external/third partner, he/she should inform the primary party about the same as they could provide necessary ailments and support ( if required). At least it would come into notice about the activities done by both parties.

Matrimony.com .V. Google India

  • The case was filed by an online matchmaking platform for marriages against the world’s most top-ranked search engine firm. The petition was filed claiming that google favours its partner and other major stakeholders in terms of promotion and advertising. Youtube and google translator are few channels run and owned by Google itself. For example, if a web user wants to watch a video or translate something in another language, Youtube and google translator would be the first link to pop-up irrespective of its page rank and as per normative human behaviour, people tend to select the first link flashing.
  • The court assigned a DG to invest the case and also to interrogate google’s Ireland office as the majority of decisions and operations were undertaken by them. The petition was filed under section 19(1)(a)[14] of the act by consumer unity & Trust Society. The inspector interrogated through every level of page ranks and collected feedback from every other website holder. Later as the case proceeded it was found that Google had abused its dominant position in the Indian market by contravening the provisions of section 4 of the act.
  • The case was called off as google was fined with $5 million as compensation for implementing dominance bias over other firms and websites and for favouring its partners and branch platform over others.

Bayer Corporation V. Union of India

  • The case was filed under the provision that the export of patent inventions even for experimental purposes is stated under section 107A[15] of the Indian Patent Act(1970) and doesn’t allow to patent infringement. Following which it allowed NATCO to supply the company’s patent drug ‘Sorafenib Tosylate’(which gained its license in 2012) to China for the purpose of holding experiments based on development/clinical studies and trails.
  • Two months later, the order got stayed by the bench and advised NATCO to register a separate case seeking permission for exporting the drug for experiments and only a limited quantity of drugs will be allowed to transport. Later, the court granted an interim order and further allowed up to 1kg of transportation for the same purpose.

Toyota Jidosha Kabushiki Kaisha V. M/S Prius Auto Industry ltd.

  • The case was filed by the Toyota industry against Prius auto for using its trademark “Prius” for its marketing and sales. The case was registered appealing the use of its three trademarks, namely, “Toyota”, “ Innova” and “Prius”. No doubt the first two names belonged to the plaintiff and was one of the major reasons for winning the case directly in the lower courts. However, the main claiming was to identity the correspondent of the last trademark.
  • Prius industry claimed it was their trademark as they registered it back in 2002 under its very name. However, the plaintiff questioned the reputation and goodwill of the industry globally and further proceeded with the discussion. The defendant had the proof of its registration which was the only legal proof in the entire case whereas Toyota stood by claiming its brand image on a global platform. At the end of the hearing, the plaintiff failed to submit enough evidence of its brand value in the Indian market.
  • The supreme court’s final decision went in favour of the defendant and stated that “if the territoriality principle is to govern the matter, and we have already held it should, there must be adequate evidence to show that the plaintiff had acquired substantial goodwill for its car under the brand name ‘Prius’ in the Indian market also”.

Kent RO Systems Ltd. & Anr V. Amit Kotak & ORS

  • The case was filed by KENT RO ltd against Amit Kotak who was responsible for registering their water purifier designs and was allegedly selling the same design to third parties, which hindered the piracy of the plaintiff’s design. Since the defendant was selling these designs in an online platform called eBay, the plaintiff prayed to remove it. However, eBay didn’t completely remove its listing which was violative to the firm’s design. Following which the plaintiff requested the court to issue an order to remove the remaining content and supervise them not to publish such registered designs in the coming days.
  • The plaintiff highlighted the laws and guidelines upon which they can filter Ebay’s post, “Rule 3 of the Intermediary Guidelines, which imposes an obligation on intermediaries to maintain due diligence, and Section 79(3)[16] of the IT Act, which makes the safe harbour that intermediaries enjoy inapplicable in circumstances when they aid, abet, conspire or induce the commission of an offence, in support of this prayer”.
  • The court interrogated the plaintiff’s appeal of convicting the e-commerce site for its act. As a general problem of doubt arose whether every uploaded content would lead to infringement. Since the plaintiff wasn’t able to answer this in an appropriate manner, the court favoured the defendant and no orders/rules to be obliged specifically for the e-commerce site.

Suggestions for identified issues:

The IPRs in our country could be forced by allowing strict actions in the lower courts and via criminal proceedings. The criminal Proceeding doesn’t apply to the infringements of patents and designs.

The Cons about civil litigation is that it doesn’t include recovery of large and punitive damages against an infringer. If that particular individual has been identified as the infringer, he/she should be ordered to navigate through civil litigation as an interim order if granted the infringement could be restricted which further leads to delay in the outcome of the case.

Damages recur in cases such as trademark infringement and copyright piracy. From the past few years, the majority of the decisions went into the favour of several foreign companies that were fought against the local vendors and have clearly portrayed the judiciary’s unbiased approach. Criminal proceedings in the name of infringement carry harsher remedies which include imprisonment and fines. Negotiation with the infringer is an effective methodology to come to a conclusion. The civil procedure facilitates an organized paper-work process for the same.

The antitrust regulators across the globe are analyzing the issue which involves the digital economy. The task is getting more and more complex as it includes the concept of big data and algorithm pricing. The above task can be completed by hiring data analysts to work with competition regulators. The competition act highlights the assets and turnovers. As the number of assets in the field of digital economy and e-commerce is low. But the turnover of the same is really high. Currently, the commission is conducting rigorous surveys to analyze the market and its scope, in the field mentioned above for a conducive proceeding.

The competition law Review committee requires the formulation of penalty regulations by the regulator which acts as a filtering round to these industries and firms. Separate benches to be established for CCI for speedy decide on the cases and also to access the justice and the ease of doing business more formally and steadily.


  • While designing outlines for any product, analyze the probability of the texture being copied unknowingly. Therefore, when a firm hires a designer for its firm, effective IPR related clauses and regulations should be mentioned and they should’ve primary knowledge about the same.
  • A sound protection and destruction methodology for the tools, documents, and machinery, etc. Avoid leakage of packaging which could lead to passing off of fake products and used by counterfeiters.
  • Apt precautions such as consulting websites and publications on Indian IP rights and protection. Proceeding of risk assessment and due diligence on every check. Lastly, overviewing the trademark and patent attorneys to track their previous registration.
  • In order to sustain a country’s economy, free and fair practices should be maintained in the market. Unfair practices can hinder its growth rate and subsequently hamper the net economy of the country.
  • CCI should opt for methods that combine both small and big firms in the market and to eliminate the feeling of the dominance of few firms in the market.


alistair toppo Alistair S.H. Toppo | IIM, Indore


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[1] The Competition Act inter alia provided for the establishment of the Competition Commission of India (“CCI”), mandated to eliminate practices adversely affecting competition, to promote and sustain competition, to protect consumers’ interests and to ensure freedom of trade carried on by other participants in markets.

[2] Intellectual property rights refer to the general term for the assignment of property rights through patents, copyrights, and trademarks. These property rights allow the holder to exercise a monopoly on the use of the item for a specified period.

[3] The Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM) generally known as the Indian Patent Office is an agency under the Department for Promotion of Industry and Internal Trade which administers the Indian law of Patents, Designs and Trade Marks.

[4] The national innovation systems approach stresses that the flows of technology and information among people, enterprises, and institutions are key to the innovative process

[5] (i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under:

(a) the Copyright Act, 1957 (14 of 1957);

(b) the Patents Act, 1970 (39 of 1970);

(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) of the Trade Marks Act, 1999 (47 of 1999);

(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999);

(e) the Designs Act, 2000 (16 of 2000);

(f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000);

(ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.

[6] Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

[7] As a whole, Article 27 of the TRIPS Agreement defines which inventions governments are obliged to make eligible for patenting, and what they can exclude from patenting. Inventions that can be patented include both products and processes, and should generally cover all fields of technology.

[8] the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

[9] The “FRAND approach” describes both the licensing framework set out in the judgment as well as the conduct expected during negotiations. The court does not adopt the prescriptive requirements set by the German Courts for particular offers and counteroffers but rather a general principle of fair negotiation.

[10] “design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957);

[11]  in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

[12] The Register of Copyrights and indexes thereof kept under this Act shall at all reasonable times be open to inspection, and any person shall be entitled to make copies of, or make extracts from, such register or indexes on payment of such fee and subject to such conditions as may be prescribed.

[13] The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

[14] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent.

[15]  any act of making, constructing, a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, 198 [use, sale or import] of any product;

[16]  envisages a ‘notice and takedown’ regime, wherein the intermediary is required to take down unlawful content upon receiving actual knowledge of its existence.


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