In today’s fast pacing world, with the times changing and technology flourishing, there has been a tremendous need to protect Intellectual Property (IP). The reason behind this statement is the infringement of the Intellectual Property and the issues faced by the persons having the authority or the ownership over the IP. It is disheartening to know people’s perspectives wherein not much importance is given to the IP being an intangible asset over tangible assets. There is a dire need to protect Intellectual Property and to acknowledge the fact that by doing so, it will ultimately benefit and shield the IP from infringers.
About Intellectual Property Rights
To define Intellectual Property Rights (IPR) in simple terms, it is an exclusive right that is possessed by the owner who has the right to trade the same and can make profitable gains from such Intellectual Property. Some of the most commonly known IPs are Copyrights, Trademarks, Patents, Designs, Trade secrets, and Geographical Indications. You must have read or heard about the above-mentioned IPs but are you aware of the remedies available upon infringement of such Intellectual Properties? Before heading towards the legalities, let us first try to understand in brief through an example about the same. Example: A is a well-known wild Life Photographer who has a website of his own on the net where he uploads his captures. One day, B, while surfing through the net comes across A’s webpage and downloads the image of a black panther and uploads it on his social media account with a caption that states “My Capture”. Now, in this situation, A has an exclusive right and ownership over the image, that is the Copyright, and can bring an action for infringement of his IP. But that’s not where it ends, let us know and try to understand what are the different kinds of remedies that can be availed by a person having an absolute right over such IP against the infringer.
kinds of Remedies available upon Infringement of the IP
The term Infringement is a violation of Intellectual Property by an infringer who exploits such an IP and does not have the authority to do so without the prior consent of the rightful owner.
Following are the different kinds of remedies that can be availed upon Infringement of IP:
- Cease and Desist Letter
A Cease-and-Desist Letter is a formal letter that is sent to the infringing party refraining them from using use them without their prior consent or approval of the owner. By doing so, the Owner can show that there had been an attempt to resort before any legal proceedings and such letter will act as proof that contains details of the breach on the part of the infringer and also the matter might get resolved without bearing any heavy costs of the proceedings.
Mediation can be taken into consideration if the Party who has infringed the rights of the owner by accessing the IP without their consent is not coming to terms. Through Mediation, an Independent Trained Mediator (ITM) will try to resolve or try to settle the dispute between the parties and when the same is not helping, the next step is to bring an action against the infringing party for the breach.
- Civil Remedies and Criminal Remedies
In India, Intellectual Property can be protected under the Copyright Act of 1957, the Trademarks Act of 1999, the Designs Act of 2000, and the Patents Act of 1970. The civil and criminal remedies that are mentioned under these Acts are very important for the enforcement of the IPR. The courts having the authority can not only grant relief and adjudicate whenever there is any kind of Infringement of the IPR but can also interpret the statutes to get a clearer insight
Remedies for IPR: Civil and Criminal
- Civil Remedies
There are different civil remedies for Copyright and Trademark infringement which are as follows:
Interlocutory Injunctions are very important and are granted as a remedy for an infringement. certain essentials are to be present to avail such a remedy. There must be a Prima Facie case, there shall also be a balance of convenience and lastly, there needs to be an irreparable injury.
- Anton Pillar Order
Such an order restrains the defendant from infringing the goods, allows the plaintiffs’ lawyer to enter into the defendant’s premises and seize the goods, and orders the defendant to disclose the names and addresses of the suppliers and consumers.
- Mareva Injunction:
The court can direct the defendant to attach whole or any part of his property if it appears to the court and the court is satisfied that the defendant is trying to obstruct or is trying to delay the execution of any decree that may be passed against him. (Order 38, Rule 5 of the Civil Procedure Code, 1908)
- Norwich Pharmacal Order:
When any information is needed to be derived from a third party, such an order may be passed.
- Award of Cost and Damages:
Damages are given as compensation for the loss due to the defendant’s act of infringing the goods of the plaintiff and amounts of profit are given to the plaintiff as a Second measure.
- Payment of plaintiff’s attorneys’ fees;
In some cases, it may be appropriate for the plaintiff to request and be awarded payment for their attorneys’ fees by the defendant in addition to whatever other remedy is awarded.
- Criminal Remedies
- The Goods infringed will be seized and the infringing party will be ordered to deliver those goods to the owner.
- The infringing party may be imprisoned for up to 3 years and a fine of a maximum of 2,00,000may be imposed. (Not less than 50k).
1- Ratna Sagar (P) Ltd. V. Trisea Publications & Ors., The Petitioner was a well-known publisher who published a book called “Living Science” and filed a suit against the Respondent who had published a book called Unique Science” for copyright infringement to which the Plaintiff claimed that the contents of the book published by the Respondents were similar to theirs. The court in this case held the respondents guilty of Copyright Infringement and imposed the perpetual injunction on such an act as per Section 14 and Section 19 of the Copyright Act.
2- In Coca-Cola Company v. Bisleri International Pvt. Ltd., In this case, Bisleri was accused of transferring and conferring the trademark rights for MAAZA, a coke brand. The complainant pleaded for a permanent injunction and the damages for the trademark and passing off. The court concluded by passing an interim injunction against the defendant for using the trademark and held the defendant liable for infringing the Trademark that was beyond the permissible extent.
3- Louis Vuitton Dak v. Louis Vuitton, In this case, Louis Vuitton Dak (Defendant), a well-known restaurant based in South Korea lost the case against the world’s renowned designer Louis Vuitton (Plaintiff). The Court decided the case in the favour of the plaintiff because the idea of uniqueness was violated considering the Trademark law which left the defendant with no other choice but to change their name to LOUISVUI TONDAK and was liable to pay a fine of 14.5 million dollars.
One of the biggest challenges faced by the owners of Intellectual Property as discussed above is due to the Infringement of their IP. There must be a general awareness of how much IP can be safeguarded and one of the most common ways is by registering their content and with the help of various remedies available that can protect the creation of those having ownership over their IP.
Author(s) Name : Raj N.Pankar (V.M.Salgaocar College of Law)