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What Are The Available Routes For Dealing With IP Infringement Within Your Jurisdiction?

by Remfry Sagar Patent law firm
Intellectual property is a category of property that includes intangible creations of the human intellect, and encompasses patents, trademarks, copyright, designs, geographical indication, plant varieties etc. Intellectual property rights give the owner exclusive rights to use such property for a certain period of time.

In case an owner’s intellectual property rights are violated, the following remedies are available:

Civil remedies are most effective in enforcing Intellectual Property Rights as the Civil Court unlike the Magistrate’s Court (criminal action court) is empowered to provide the relief of injunction (even at the interim stage) restraining defendant(s) from using the offending mark/ copyright/ patent/ design. Further, in the event the suit is finally decreed in favour of the plaintiff, defendant(s) would be permanently restrained from using the Intellectual Property right in question. In addition to this, in a civil suit a plaintiff may also claim damages from defendants for misuse of its Intellectual Property.

The Trade Marks Act, 1999 provides both civil and criminal remedies in case of infringement of a trademark. Civil remedies or criminal remedies may be availed of depending upon the facts and circumstances peculiar to a case. In certain cases, after initiating a criminal action and successfully conducting search and seizure operations, civil action may be filed subsequently to permanently restrain the infringer from using the mark in question.
 
Additionally, being a common law country, India does not mandate registration of a trademark and rights to an unregistered mark may be protected through the common law tort of passing off (civil remedy).

In the case of trademarks and copyright, criminal proceedings are useful to create ‘fear’ and have a deterrent effect. Especially in case of availability of counterfeit products (on a large scale) in the market, a series of raids/search and seizure operations prove beneficial and also assist in leading to the source(s) of counterfeits. Further, conducting a raid/search and seizure operation assists in precluding the entire distributor-sales network of the impugned entity as well as affects the market wherein counterfeited products are sold. It is noticed that a criminal action followed by civil action is often beneficial to curb the menace of counterfeiting.

The Patents Act, 1970 does not provide for criminal remedies in cases of patent infringement. In the case of infringement, a civil suit may be brought against the alleged infringer in a civil court. Remedies available for patent infringement are injunction and damages or account of profits in lieu of damages.

For registered designs, as is the case with patents, only civil remedies are provided for by the Designs Act, 2000.

In the case of non-registrable rights – for example trade secrets, there is no specific legislation under which Confidential Information may be protected. In practice, confidentiality obligations are cast by execution of appropriate agreements, for example, non-disclosure agreements. Such information is protectable in equity (through a civil action) inasmuch as no person is entitled to make wrongful gain by illegally misappropriating the property of others. Relief that may be sought includes an injunction and damages. In addition, a criminal complaint of theft under the Indian Penal Code can also be filed.


About Remfry Sagar Junior   Patent law firm

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Joined APSense since, May 28th, 2018, From Delhi, India.

Created on Sep 14th 2018 05:50. Viewed 153 times.

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