While the Intellectual Property Rights system in India has made considerable progress in the last decade, much needs to be done before it comes up to speed with international practices.Over the last decade, India has shown considerable progress in the field of innovation and technology. The world is showing a keen interest in India as an IP hub, with several hundred million dollars being...
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While the Intellectual Property Rights system in India has made considerable progress in the last decade, much needs to be done before it comes up to speed with international practices.Over the last decade, India has shown considerable progress in the field of innovation and technology. The world is showing a keen interest in India as an IP hub, with several hundred million dollars being pumped in as investment. However, are we still up to speed with the international regime?India, being a developing nation, is taking giant leaps towards matching steps with stable economies and giant powers like USA, EU and UK. India is making record breaking progress in all areas, technology and innovation being at the forefront.
One noteworthy feat is setting up of the National Institute of Intellectual Property Management (NIIPM) based in Nagpur, which is a Central Government Organization under the Ministry of Commerce & Industry engaged in conducting training and awareness programmes on IPR, i.e., Patents, Designs, Trademarks & Geographical Indications.Over a period of time, Intellectual Property Rights (IPR) have gained tremendous popularity and are an effective business tool now. Signing of the Nice Agreement and TRIPs brought the world together in its enforcement policies of IPRs. India won several accolades for taking this step and being a signatory to these path breaking treaties.The IPR system in India during the last decade has made considerable progress not only with amendments to its existing laws and rules but also enhancement of its functionality and infrastructure. This resulted in the setting up of five trademark and patent offices in India’s metros (Mumbai, Delhi, Chennai, Kolkata and Ahmedabad). We have also successfully initiated the web portals for searches, applications, status checks and redresses.This proves that India is not lagging behind in infrastructure and is making all attempts to put the IP offices in India at par with the world. One noteworthy feat is setting up of the National Institute of Intellectual Property Management (NIIPM) based in Nagpur, which is a Central Government Organization under the Ministry of Commerce & Industry engaged in conducting training and awareness programmes on IPR, i.e., Patents, Designs, Trademarks & Geographical Indications.Such IPRs are considered a barometer of R&D activities, encourage technology transfer, national / foreign direct investments & help in technological / industrial development. However, despite all this being in place, India is still not up to speed with the international offices and is thus deterring the uninhibited flow of companies and resources.What is the reason behind this? The biggest reason for this lag is an age old problem in India, tardiness and bureaucratic delays. Applications filed a decade ago are still not registered, opposition hearings take the longest time to be resolved, and, even smaller functions such as examination, issuance of certificates, taking on record change in the application or applicant details do not adhere to the time frame specified. This back-log, as we have seen with our Courts and almost all other government offices, stifles progress and smothers the need of technologically advanced companies and individuals, who are leading highly demanding lives.Another critical problem in India is that the lower grade officers who look into day to day activities are not equipped with the necessary education and knowledge to address critical issues. Hence, written applications are filed with the Registrar, where they often get lost in the heap of papers on his desk. These officers must be chosen on the basis of a minimum education and must be given rigorous training for a year to make them understand the need of the IP system. Even the online system, though introduced with much aplomb, is not user friendly.The websites have been designed and loaded with unfriendly downloadable forms, etc. that cannot be electronically filled. The forms are in .pdf format which must be printed to be filled thereby failing to further the main intention of introducing e-working. The websites have too many links that are non-functional. The search mechanism is not equipped to generate large files and often fails to generate the required result. India is the global hub of software and services and therefore the government departments ought to use the best in the professional class.It is possible to search online for the applications and grant patents, trademarks and design in the USA, UK, EPO, Australia and in several countries but the Indian databases are yet to go on-line. This is an immediate necessity. Another problem that stunts any sort of growth and development in India is corruption and theft. Loss of over ten thousand documents by the Trade Marks Registry and lack of a back-up system in the Registry reeks of dismal performance.Also, recently the headlines "USA keeps a watch on IPRs in India, China and Pakistan among others due to increasing theft" shook everyone up. These are signs that some serious and immediate reforms are required in India. USA was identifiably known for granting frivolous patents and trademarks and had the highest number of such registered patents.However, after much flak, they too mended their ways and now closely scrutinize every application made. The Commerce Department’s United States Patent and Trademark Office (USPTO) and India's Department of Industrial Policy and Promotion (DIPP) have signed a Memorandum of Understanding (MoU) for a comprehensive bilateral cooperation on intellectual property rights protection and enforcement.Under the terms of the MoU, the USPTO and DIPP will cooperate on a range of IPR issues focusing on capacity building, human resource development, and raising public awareness of the importance of IPR. The US has expressed their commitment towards growing cooperation between the two offices. The Indian government envisions placing the Indian IP system at par with the rest of the world by adopting transparent, automated and user-friendly procedures.The MoU provides a sturdy framework for protection and enforcement of IP rights for the mutual benefit of innovators as well as enterprises. India has been taking all pervasive steps to augment IP protection and enforcement in the country. Together with major amendments in patent laws in 2005, trademark and GI law in 2003, and impending copyright amendments, there have been notable developments on the traditional knowledge front. The digitization of all traditional knowledge of India into a database, the first of its kind, has been hailed by the USPTO as well as EPO. Moreover, the modernization of Indian IP offices, boosting of physical infrastructure, creation of awareness and stepping up enforcement activities has also drawn praise in the USTR 301 Report.The picture in the European Union has been quite balanced. Protection and enforcement of intellectual property are crucial for the EU's ability to compete in the global economy. Because European competitiveness builds on the innovation and value added to products by high levels of creativity, the protection and enforcement of intellectual property go to the heart of the EU’s ability to compete in the global economy.EU growth and jobs are hampered when ideas, brands and products are pirated and counterfeited. Moreover, counterfeit products often place citizens' safety or health at risk. Hence, intellectual property rights are becoming increasingly important for European inventors, creators and businesses. These rights enable them to prevent unauthorised exploitation of their creations and distinctive signs, or to allow such exploitation in return for compensation. One of the EU's objectives is to see such standards respected by third countries.
The EU negotiates IPR provisions in its bilateral trade agreements and works closely at a technical level with its trading partners on IPR issues.
IPR policy can also be a tool to promote development. Relationships between IPR and development policies are currently being explored in the framework of the "Policy Coherence for Development" initiative. While the above is very encouraging, the ground level process in India shows trend of being litigious.The Examiners allow every trademark to be advertised and a large portion of it moves to registration. There is a serious failure in the examination process, which does not, at times, cite the most obviously conflicting marks. This leads to expensive litigation and rectification and all the revenue earned then enters the government kitty.The kinds of trademarks that get registered are ridiculous. Tobacco product makers, file multi class applications and their product gets registered in Class 05 (medicinal and pharmaceutical products), without anyone batting an eyelid! Identical marks are registered and where one trademark takes about 5 years to be registered, another mark, which is adopted by spurious proprietors, gets registered in 6 months, which is a lower period than the minimum time involved. How is this possible? With a little unmentionable tactic? Benevolence? Negligence? Our guess is as good as yours! Even the copyright offices are silent spectators to the copyright thefts and plagiarism taking the country over like a plague.Music composers and authors spend a better part of their lives composing and/or writing that one masterpiece, which is copied under the label of 'inspiration' by the lobby of film-makers or ad-film writers without giving the rightful owner his dues or even simple credit. In the wake of these problems, the new amendments remain toothless in practice so far. A coherent audit, especially with the actions underway in the Patents, Trademarks, Designs and Geographical Indications System, seems to be the need of the hour, in order to address the issues mentioned and ensure identification of possible weak-links and implementation of appropriate corrections.
The EU works in the WTO to improve the protection and enforcement of IP rights and was a key supporter of the TRIPS.
Even the redressal systems need to be revisited and made more stringent. An RTI, which is touted as the most effective tool in the hands of the common man, filed in these offices duly gets answered within 1 month but the action points contained therein remains neglected. With the present back-log in the IP offices, it is only natural, that individuals and companies who have spent years on innovation, will be edgy and this results in several hundred RTI applications being filed and if they are not cleared soon, there will be an RTI back-log as well, which is an absolute failure of the system and will push India way below in the progress ladder.It is recommended that the Controller General takes stock of these simmering issues and sets up working groups of department officers and experts with a chalked out plan to address all issues. Recommendations and implementation of the findings of this department will ensure that our IPR system, which has now gained impetus, meets its set goals and achieves standards that can see eye to eye with the international regimes. Such a system will help in building confidence in the system and will attract the much needed investment in India to boost the growth of our economy.
Disclaimer: The views are personal to authors and not that of Wockhardt Group.