Intellectual Property Rights of India for Foreign Investors

Introduction

The Intellectual Property Rights in India are mainly encompassing around trademarks, Patents, Copyrights and Designs and are categorically covered by way of different statues. Intellectual Property is an original creation that acts as a valuable asset for the creator. The most common types of intellectual Property rights include (a) Copyright governed by The Copyright Act, 1957 which grants protection of written or published work such as books, songs, films, web content, and other artworks, (b) Patents governed by The Patents Act, 1970 which grants protection to an invention, new business product or process (c) Trademark governed by the Trade Marks Act, 1999 which grants protection of signs, symbols, logos, words, or sounds that distinguish between the products and services from the competitors and (d) design governed by The Designs Act, 2000 which grants protection drawing, colour, pattern, or combination of designs.

Procedure for Registration of Intellectual Property Rights

Under the Patents Act, 1970, patents are granted for a period of 20 years. The patent is granted on a first come first basis and an application can be made by the inventor, assignee or the legal representative of the assignee. A foreign national can also obtain a patent in India. The application is required to be accompanied by patent specification. This application filed with the Indian patent office will be published in the official patent journal. This is generally done after 18 months of filing the application. The Patent shall be examined by the examiner before it is granted. An independent search shall be conducted by the officer where he/she analyses the relevant technology in depth and the objections, if any, will be communicated. The report issued in this case is called the First Examination Report (FER). The patent is granted once all the objections raised by the officer are resolved.

Under Copyrights Act, 1957, a copyright is granted for a period of 60 years for usually literary work, musical work, artistic work, cinematography, sound recording and computer programs etc. For the purpose of obtaining the copyright registration, an application shall be sent to the registrar along with the requisite fees. A separate application has to be made for separate works. The registrar will issue a Diary No. and shall mandatorily wait for a period of 30 days to receive objections. If no objections are received in 30 days, the registration will be done and an extract will be sent to the registrar for the entry in the Register of Copyright. If any objection is received, the examiner shall give both the parties a date of hearing in order to resolve the objection. Once the objection is resolved, the copyright shall be registered.

Under Trademarks Act, 1999, a trademark is granted for a period of 10 years. The Head Office of the trademark registry is in Mumbai, and it has branch offices in Delhi, Ahmedabad, Chennai and Kolkata. An owner, including any individual, a company and an LLP can be an applicant and may file the application for the registration of the particular trademark after choosing from the 45 classes of goods and services. Classes 1-34 are for goods and classes 35-45 are for service. An application can be filed for multiple classes or series trademark, or collective trademark. After filling the application, the Registrar of Trademark will check out whether you have followed certain terms and that your brand name complies with, the existing law. In case of any objection received within 4 months of trademark publication, the counter statement shall be filed within 2 months of receipt of notice. After hearing both the parties and considering the evidence, the Registrar will pass an order of acceptance or rejection of the trademark application. If there’s no opposition being raised within the stipulated period of 4 months or on acceptance of your trademark application after trademark opposition hearing, the application will be approved. You may looks for more information for trademarks on https://ipindia.gov.in/trade-marks.htm.

India has been a member of World Trade Organization (WTO) since 1995. Other than WTO, India has been a signatory with the Paris Convention, the Berne Convention, the Madrid Protocol and the Patent Cooperation Treaty. Being members and signatory to these international conventions, benefits such as recognition, similar enforcement rights and status is granted to the national of those countries.

Conclusion

Intellectual property rights are essential rights safeguarding the commercial interest of the Company. By providing legal protection and enforcement mechanisms, IP laws in India have contributed to promoting investment, research, and development, technology transfer, and trade.

We at D’Andrea & Partners Legal Counsel are a legal firm with its presence in India, Pune and provide all round legal and fiscal services relating to open a company in India, legal compliance, litigation and dispute resolution, drafting of agreements and contracts, intellectual property rights protections, HR and IPR Related work and other miscellaneous services. Should you have any query or wish to know more, please reach us at info@dandreapartners.com. We are also pleased to introduce our practical guide on Foreign Direct Investment in India which you can purchase with this link.

Disclaimer：

The above content is provided for informational purposes only. The provision of this article does not create an attorney-client relationship between D’Andrea & Partners and the reader and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this article are not a substitute for legal counsel.