- Professional News
- 25 April 2013
Enforce your intellectual property rights in India
Today, many rights holders experience that their trademarks, designs, patents, and copy rights are systematically copied and abused on the fast-growing markets of India. But what do you do when your trademark is being abused and used in connection with substandard products? Learn more about enforcing your intellectual property rights in India.
India’s economy is thriving and has escaped the global financial crisis. In 2013, the economy in India is expected to grow by more than 7.5 per cent and, in 2025, India is expected to become the world’s fifth-largest consumer economy. The interest in foreign products and brands is growing in line with the disposable income in India - and, unfortunately, so is the market of for example counterfeit products.
Great many markets exist all over India from where, amongst others, counterfeit products are sold. Cities, such as Delhi, Ludhiana, Tirupur and Mumbai, act as production and sales centres of infringing products and from these cities the products are distributed to all corners of India.
It varies which brands are the most popular and, as a result, in particular subject to infringement. At the moment, NIKE is the most abused trademark in all of India.
How do you combat systematic infringements?
A large challenge is to uncover production and sale of counterfeit products both in relation to extent and geographic concentration.
As a rights holder, customers or distributors and manufacturers of original products will typically contact you if they realise that your trademark is being abused.
If you suspect that your trademark is being abused, this may be investigated in further detail by professional investigators. Such investigators specialise in documenting infringing activities, procuring information on the instigators and retrieving additional, relevant information on distribution networks, extent and geographic concentration.
Once infringement has been ascertained and the relevant information has been collected, you must assess how to best stop the infringement. There are several ways of doing so, but it is vital to thoroughly consider which way is the most appropriate.
As a rights holder, you may choose to go through the legal system and commence either criminal or civil proceedings.
Some of the advantages of commencing civil proceedings are that, as a plaintiff, you control the case and are able to obtain an injunction also covering any future activities.
As a rights holder/plaintiff, you may also close the case by entering into a settlement with the opposing party if proved appropriate.
Prior to civil proceedings, the typical procedure will be to request the court to try locating the infringer and seize the infringing products as well as the infringer’s production machinery. When you, as a rights holder, have been granted a right to seize the operating equipment, you are in a stronger position when negotiating with the infringer since the infringer has great interest in having its operating equipment released.
The greatest advantage by commencing criminal proceedings is their deterrent effect. In connection with criminal proceedings, the defendant will be arrested and imprisoned until he/she may be released on bail. Deterrence often has a ripple effect among infringers when they become aware that a rights holder cracks down on infringements.
If your first option is to avoid going through the legal system, an alternative solution may be to send demand and warning letters to the infringers. A more efficient method, however, is that an investigator is first hired with a view to buying copies of the infringing products. This may lead to the infringer signing a voluntary statement whereby the infringer gives up its stocks.
Depending on the situation, an efficient supplement to the actual enforcement of your rights - either through the legal system or by contacting the infringers directly - may be to insert advertisements in national and local newspapers describing, for example, the qualities of genuine products as compared to counterfeit products.
Bech-Bruun’s experienced legal advisers will help you
We recommend a proactive approach to enforcing intellectual property rights in India. Our experienced legal advisers may help you in respect of all kinds of enforcement of rights in India. We also cooperate with several of India’s leading experts within enforcement and market surveillance who, due to their liaison with Bech-Bruun, offer fixed competitive prices for their services.
For further non-binding information, please contact Claus Barrett Christiansen and Line Bruun Iversen.