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1 September 2013Copyright

Everything to play for: WIPR's India focus

The news is not good. Too often, intellectual property stories coming out of India are given a negative spin in Western media. Whether it’s the apparent proclivity of the Indian Patent Office and the country’s courts to rule against Western pharmaceutical companies, or the danger to famous marks posed by copycats, or the prevalence of counterfeiting, there always seems to be something to worry about.

Many of these concerns are valid; some of them are not. It’s certainly true that, for international brands, India might sometimes need to be treated as a special case. But in the pharmaceutical industry for example, it’s much easier to say why India should be different than why it should be the same as other countries. Its first responsibility is to its population. And as yet, in economic terms, the population of India looks nothing like the population of Europe or the population of the US.

The Western companies that become successful in the country will be the ones that adapt. The same holds true to a greater or lesser extent for any industry. Of course, none of that can help if a court or the patent office gets something fundamentally wrong, or if policy stands against successful IP protection, but in some cases at least, the failure of Western companies in this setting has been a failure of understanding.

In WIPR’s India focus, authors attempt to bring clarity to some of the key issues. Neeraj Grover of Kochhar & Co writes a particularly illuminating article on internationally famous marks. Although case law in India goes back 25 years on the issue, it is only relatively recently that international businesses have been able to protect their marks even when they have not used them in India itself.

Recent cases give remarkable scope to international brands, and should give them confidence that India need not be seen as a threat, but as an opportunity.

"With a booming technology industry and a large web-savvy population, India might seem like the obvious place to embrace ICANN's new Generic Top-Level Domains Programme."

With a booming technology industry and a large web-savvy population, India might seem like the obvious place to embrace ICANN’s new generic top-level domains (gTLD) programme. But as is the case in several other countries, some of the proposed new gTLDs have sparked concerns over cultural and religious sensibilities. Will .ram fall foul of Indian objections?

India’s semiconductor industry has been growing at an extraordinary rate in recent years, and is expected to be worth $9.6 billion this year.

However, as an industry that has suffered its fair share of patent battles worldwide, there are reasons why companies need to be particularly switched on. In India, however, there are a couple of different routes to protect your product. Of course, there’s the normal patent law, but this has limitations when it comes to semiconductors because India’s patent law seems unlikely to allow companies to cover topographies of integrated circuits.

However, the Semiconductor Integrated Circuits Layout-Design (SICLD) Act, 2000 can provide a handy alternative, which, while not quite offering the same scope of protection as a patent right, can nonetheless provide companies with 10 years’ protection for their layout designs and integrated circuit topographies.

As India continues to develop economically, its influence on the world stage will only continue to grow. And despite the positive things coming out of the country, there are still clear improvements to be made in the IP sphere. In December 2012, the Global Intellectual Property Center (GIPC), part of the US Chamber of Commerce, published a report, Measuring Momentum, which assessed the status of IP protection across the globe.

For those interested in India, it makes grim reading and provides a neat counterpoint to the arguments that the onus should be on businesses to adapt to the situation as they find it on the ground in all circumstances. The key concerns identified were as follows:

•  Regulatory data protection not available.

•  Patent term extension not available.

•  Use of compulsory licensing for commercial and non-emergency situations.

•  Limited takedown mechanism in new Internet service provider notification system.

•  Limited digital rights management legislation.

•  High levels of software piracy, music piracy, and counterfeit goods.

•  Poor application and enforcement of civil remedies and criminal penalties.

•  No civil statutory damages available for copyright infringement.

• Not a contracting party to any of the major international IP treaties referenced in the GIPC Index.

In fact, of all the countries assessed by the GIPC, India came last in terms of IP protection, behind China, Brazil and Russia, the three other members of the so-called BRIC group of developing economies. The US, perhaps unsurprisingly, came top of the list of 11 countries, followed closely by the UK and Australia. That said, according to the report, India was the sole ‘lower middle income country’ assessed. All the others were classed as middle income or higher.

The report raises three major questions. Does India have the capability to match international standards in IP protection? Does it have the political will to implement the reforms necessary to do so? And should it make those changes?

Businesses looking to operate in the country will be hoping the answer to all three questions is ‘yes’.

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