Developing an intellectual property (IP) strategy to protect your IP in India will be central to your business success.
Your IP is a valuable business asset and in an emerging market like India could well be your main competitive advantage. Companies exporting to or operating in India, or even considering it as a future market, should have an IP management strategy that identifies and covers all of their IP and how best to protect it.
India has been a World Trade Organisation (WTO) member since 1995 and if you are doing business with India, you will find similarities between local IP law and enforcement procedures, and those in force in the UK. India is also signatory to various international treaties on IP rights. Furthermore, rights such as trademarks, designs, patents and copyright can be protected through registration. These rights are enforceable through the Indian courts, which, in the event of infringement, can provide interim remedies such as injunctions relatively quickly. The courts can also instruct perpetrators to account for profits generated from their infringement.
Registering and enforcing intellectual property rights in India
IP protection is jurisdiction-specific, which means IP rights must be registered in India even if they are protected in the UK. Registration of patents, trademarks, designs and copyright could take several months or even years in India owing to considerable backlogs at the IP registries, so businesses should plan their registration well ahead of entering the market. Factsheets on registering your IP in India are available on the right hand side of this page.
DO AN AUDIT OF IP THAT MAY BE EXPOSED TO THE INDIAN MARKET. IF IT’S COMMERCIALLY WORTH IT, TAKE STEPS TO REGISTER IT WELL IN ADVANCE AS REGISTERING COULD TAKE SEVERAL MONTHS OR YEARS OWING TO BACKLOGS AT THE IP REGISTRIES IN INDIA.
IP enforcement in India
There are three IP enforcement channels – police, customs and judiciary. Trademarks and copyright can be enforced through civil or criminal litigation, whereas patents and designs can only be enforced through civil litigation. The risks with IP enforcement are:
- Systemic and capacity related problems faced by the police, compounded by lack of awareness about IP protection amongst the public;
- Judicial delays, where courts can take years to come to a final decision. Indian courts can, however, grant interim injunctions that provide immediate relief to rights-holders pending the outcome of cases against infringers;
- Small players account for a large number of IP infringements. This means that seizures tend to be small, requiring a sustained and costly effort in order to make any significant impact.
An advantage for UK businesses operating in India is that the legal system is based on common law, as in the UK, so the fundamental processes are familiar.
Checklist for an IP strategy in India
India is one of the UK’s priority overseas markets, so practical steps can be taken by new entrants to the Indian market to minimise the risk of encountering IP issues:
Prevention is better than the cure
Prevent third party copying by having physical protection and destruction methods in place to protect documents, drawings, tools and samples. Safeguard product packaging and have measures in place to deal with production over-runs to prevent genuine products being sold under a different name.
Conduct a local risk review to avoid inadvertent infringement of third party IP rights. Seek advice from Indian IP rights experts and look for available literature and websites providing information on registration and protection. The UK’s Intellectual Property Office (UK IPO) provides advice and support through their attaché in the Mumbai Deputy High Commission.
Conduct appropriate risk assessments and due diligence on organisations and individuals that you will be dealing with, including third parties to whom you will be licensing your IP.
Protect your IP rights
Instruct local lawyers to register your IP rights in India. Registration of patents, trademarks, designs and copyright could take significant time in India, so businesses should plan their registration well ahead of entering the market. Educate employees on IP rights and protection generally and always include effective IP related clauses in employment contracts.
Reduce the risk of infringement by an Indian counterpart by ensuring your contract is watertight with respect to your IP rights. Include appropriate dispute resolution clauses in contracts and consider mediation before defensive action. If faced with infringement or piracy, businesses should appoint a good legal practitioner who understands the local context and has the necessary experience to initiate civil or criminal proceedings.
Create good relationships with organisations that can help you
Advice can be obtained from organisations such as the UK IPO, the UK India Business Council and Chambers of Commerce. Consult with other UK businesses who conduct a similar business in India as well as with agents, distributors and suppliers on how best to protect your IP rights in India.
Adhere to your usual business methods
Stick to your normal business instincts; do not be tempted to do things differently because you are trading in a different country.
In emerging economies where several small players account for a large number of IP infringements, often constant innovation is the key to protect your competitive advantage. While IP protection encourages innovation, constant innovation in itself is an added protection against local infringers.