The Designs Act 2000 and the Designs Rules 2001 govern industrial designs in India. The Designs Rules 2001 were amended in 2008 to enable e‑filing. India has not yet acceded to the Hague System for the International Registration of Industrial Designs, which gives the owner of an industrial design the possibility of protection in several countries by filing one application in one language with the International Bureau of WIPO.
As in the case of patents, India follows the first‑to‑file system. To be registered, designs must be new or original; they must not have been disclosed to the public in India or another country by publication prior to the filing or priority application date; they must be able to be reproduced by industrial means; they must be significantly distinguishable from known designs or combinations of known designs; they must not comprise or contain scandalous or obscene matter; must be appealing to the eye; and they must not include anything that is in substance a mere mechanical device.
Proprietors of designs may file for protection in India only if they have a business address in the country. If that is not the case, they may file an application through an attorney or agent. The application may be filed at the patents offices in Delhi, Chennai, Kolkata, and Mumbai.370 After registration of the design, which could take 6 to 12 months, the particulars are entered in the Register of Designs and the design is published in the Official Journal of the Patent Office and made publicly available in a Register of Designs.
Registration of an industrial design in India gives the proprietor an exclusive right to sell, import, and apply it to any article. Once a design has been registered, the article on which the design is being used must be marked with the word "registered" (or any of its abbreviations REGD or RD) along with the design registration number, to inform the public that the right holder has the exclusive proprietary right to use it. If this is not done, the right holder must prove that an infringer was aware that he was violating the right holder's exclusive proprietary rights when using the infringing design.
A registered design is protected for ten years from the date of registration or from the priority date, renewable for five years upon application prior to the expiry of the initial period. Registration provides protection only in India. From 1999/00 to 2009/10 applications for protection of designs increased from 2,874 to 6,092, the number of applications examined rose from 2,067 to 6,266, and the number of designs registered increased from 1,382 to 6,025.371
The sale, import or imitation of any article in which the design is registered without the consent of the registered owner is punishable by a fine of up to Rs 25,000 to be paid to the registered owner together with any other damages incurred of up to Rs 50,000. In addition, since 2007, Customs officials are authorized to seize and eventually destroy goods infringing the designs of the rights holder at the border, without obtaining a court order.372
A design may be cancelled by the Controller General if it is determined that it does not fulfil the requirements for registration defined in the Act. Since 2007, 16 registered designs have been cancelled. Appeals against a decision by the Controller General may be made to the High Court within three months of the decision; at present 28 cases are pending in the High Court.
The Copyright Act 1957, most recently amended in 1999, governs the copyright system in India. There have been no changes to this legislation since the previous Review of India. However the Copyright (Amendment) Bill 2010 proposing amendments to the Copyright Act 1957 is being discussed in Parliament. The Copyright Act 1957 grants protection to: original literary, dramatic, musical and artistic works; cinematographic films; and sound recordings. Registration is not mandatory. There is no difference in the copyright protection granted to a registered or unregistered work. However, as per Section 48 of the Act, registration provides prima facie evidence in case of a dispute. Both published and unpublished works may be registered.
Copyright owners may file an application with the Registrar of Copyrights either in person or through a representative; separate applications need to be filed for each piece of work.373 After the application is filed, and if no objections are raised within 30 days, the Registrar enters the particulars of the application in the Register of Copyrights. In case of a dispute, the Registrar will hold an inquiry. Registration of a copyright takes between 8 to 12 months.
Protection is for the lifetime of the author plus 60 years for literary, dramatic, musical, and artistic works; and 60 years after the year of publication for anonymous and pseudonymous works, photographs, cinematographic films, sound recordings, and works owned by the Government or by a public undertaking or an international organization. Broadcast reproduction rights are for 25 years from the year of broadcast, and performers' rights are for 50 years from the date of performance. Through the International Copyright Order, copyright is protected in India for nationals of countries that are members of the Berne Convention, the Universal Copyright Convention, and the TRIPS Agreement.
Copyright may be licensed or assigned to another person provided the arrangement has been put in writing. Compulsory licences may be issued for works withheld from the public or for unpublished "Indian works" where the author is dead or unknown.374 In such cases, applications may be made to the Copyright Board, which, after holding an inquiry, may direct the Registrar of Copyright to issue a licence under specified terms and conditions. Applications for licences to publish a translation of a literary or dramatic work in any language may be made to the Copyright Board seven years after publication of the work (three years if the translation is required for teaching, scholarship or research) (Article 32). Parallel imports of copyrighted works are not permitted by the law.
The copyright law in India provides for both civil and criminal remedies by which the holder may enforce their rights. Infringement of copyright could lead to imprisonment for six months to three years and/or a fine of between Rs 50,000 and Rs 200,000 (Section 63). Repeated offences are punishable by imprisonment for one to three years and/or a fine of Rs 100,000 to Rs 200,000. Any person who knowingly makes use of an infringing copy of a computer program is punishable by imprisonment for seven days to three years and/or a fine of Rs 50,000 to Rs 200,000 (Section 63B). The penalty for making or possessing plates for making infringing copies of protected works is imprisonment for up to two years and/or a fine (Section 65). Publication of a sound recording or a video film in contravention of the Act is punishable by imprisonment for up to three years and a fine (Section 68A). If any of these offences are committed by a company, every person who was in charge of the company at the time the offence was committed, as well as the company, should be deemed to be guilty of the offence and be punished accordingly.
Customs officials are authorized to seize at the border, and if necessary destroy, goods infringing copyrights, without obtaining a court order. In addition, upon an application by the right holder, the Registrar of Copyrights conducts an inquiry, and may prohibit the importation of copies made outside of India, which if made inside India would infringe the copyright. In these instances the Registrar of Copyright or any person authorized by him may enter any ship, dock or premises where such infringing copies may be found and examine such copies. From 2007 to February 2011 no such applications were received by the Registrar of Copyrights. Twenty‑four states and UTs have set up Copyright Enforcement cells within the crimes section of the police, to enforce the copyright legislation. The authorities have indicated that, in 2008 the police registered 6,036 cases regarding copyright violations; 2,151 persons were convicted.
Geographical indications are protected under the Geographical Indications of Goods (Registration and Protection) Act 1999, and the Geographical Indications of Goods (Registration and Protection) Rules 2002.
Applications for registration of a geographical indication must be made in writing to the Registrar of Geographical Indications. The Act stipulates geographical indications that may not be registered.375 Once an application is accepted, the Registrar advertises the application and if there is no opposition the GI is registered. If the application is not accepted, the grounds for refusal must be given in writing. Decisions by the Registrar may be appealed to the IPAB.
Protection for the owner of the GI and any authorized user is for ten years, but may be renewed by the Registrar for further periods of ten years. Additional protection may be provided by the Central Government to certain goods or classes of goods by notification in the Official Gazette. At present wines and spirits are the only class of goods that receive higher protection in India. Registration guarantees the exclusive use of the GI by the owner or authorized user and protection in case of infringement. The penalty for falsifying or falsely applying geographical indications or selling goods under false geographical indications is imprisonment for six months to three years, and a fine of Rs 50,000 to Rs 200,000.376 Repeated offences are subject to a prison term between one and three years and a fine of Rs 100,000 to Rs 200,000.
Though the Goods (Registration and Protection) Act was enacted in 1999, no GIs were registered until 2004 because the Act was not notified until 2003. By the end of 2009/10, 120 GIs of products had been registered representing a wide variety of goods.377
Plant varieties are protected in India through the Protection of Plant Varieties and Farmers' Rights Act 2001, and the Rules and Regulations 2006. Registration of a plant variety gives protection only in India and confers upon the right holder, its successor, agent, or licensee the exclusive right to produce, sell, market, distribute, import, or export the variety. New varieties may be registered if they conform to the following criteria: novelty, distinctiveness, uniformity, and stability. A variety that has already been on the market but for less than one year, may be eligible for registration as a new variety. Older varieties may be eligible for registration as extant varieties.
Registration of a variety is not allowed when it is necessary to prevent commercial exploitation of such variety to protect public order or public morality or human, animal, and plant life and health or to avoid serious damage to the environment.
Application for registration of a variety is made to the Registrar‑General of Plant Varieties, who makes the required enquiries; once the Registrar deems the application fit, it is advertised. If there is no opposition, or if the opposition is rejected, the variety is registered in the Plant Varieties Registry, and an official certificate is given to the applicant. Until the Plant Varieties Protection Appellate Tribunal is established, a person aggrieved by a decision of the Protection of Plant Varieties and Farmers' Rights Authority (established in 2005) or the Registrar, may file an appeal before the IPAB or the High Court.
A certificate of registration is issued for a term of nine years for trees and vines and six years for other crops, and is renewable for a maximum of 18 years for trees and vines, or a total of 15 years for extant varieties (from the date of notification under the Seeds Act 1966) and other crops (from the date of registration of the variety) (Section 24 (6)). A certificate of registration for a variety confers an exclusive right on the breeder or his successor, his agent or licensee, to produce, sell, market, distribute, import or export the variety. However, farmers are entitled to save, use, sow, resow, exchange, share or sell their farm produce, including seed (except "branded seed")378, of a variety protected by the Act.379 Registration may not prevent the use of any variety for conducting experiments or research; or for the purpose of creating other varieties. The authorization of the breeder of a registered variety is required if the repeated use of the variety as a parental line is necessary for commercial production of another newly developed variety.
Compulsory licences may be granted after three years from the date of registration. A request may be made to the Authority for a compulsory licence for production, distribution, and sale of the seed or other propagating material on the grounds that the reasonable requirements of the public for seeds or other propagating material of the variety have not been satisfied or that the seed or other propagating material of the variety is not available to the public at a reasonable price. The Authority will determine the duration of the compulsory licence on a case‑by‑case basis but in no event will the duration of the licence exceed the total remaining period of protection. No compulsory licences have been granted so far.
The law defines infringement as: the sale, export, import or production of a protected variety without the permission of its breeder or within the scope of a registered licence without the permission of the registered licensee or agent; or the use, sale, export, import or production of any other variety that is given an identical or deceptively similar denomination of a variety registered under the Act so as to cause confusion. In case of an infringement of rights, the right holder may file a civil suit in court. The penalty for applying a false denomination is imprisonment for three months to two years and/or a fine of Rs 50,000 to Rs 500,000. The penalty for selling varieties to which a false denomination is applied is imprisonment for six months to two years and/or a fine of Rs 50,000 to Rs 500,000. The penalty for falsely representing a variety as registered is imprisonment for six months to three years and/or a fine of Rs 100,000 to Rs 500,000. Repeated offences are liable to imprisonment for between one and three years and/or a fine of Rs 200,000 to Rs 2 million. No cases of seizure or infringement have been reported.380
Semiconductor integrated circuits layout‑designs
The Semiconductor Integrated Circuits Layout‑Design Act 2000 and the Semiconductor Integrated Circuits Layout‑Design Rules 2001 is the prevailing law regulating the protection of integrated circuits. However, at present only Sections 3 and 5 of the law are in force.381
Layout‑designs may not be registered if they are not original; they have been commercially exploited anywhere in India or in a Convention country; are not inherently distinctive; or are not inherently capable of being distinguishable from any other registered layout‑design. A creator seeking registration of a layout‑design must apply in writing to the Registrar. The Registrar may refuse the application or may accept it fully or subject to amendments. The Registrar will register the layout‑design if the application is accepted and not opposed, or if opposed and the opposition is decided in favour of the applicant. Registration is valid for ten years from the date of filing or the date of first commercial exploitation anywhere in the world, whichever is earlier. Decisions by the Registrar may be appealed to the Layout‑Design Appellate Board.
Infringement is defined as the unauthorized reproduction, whether by incorporating in a semiconductor integrated circuit or otherwise, of a registered layout‑design or any part of it, or unauthorized import, sale, or distribution for commercial purposes of a registered layout‑design or an article incorporating a semiconductor integrated circuit with a registered layout‑design. However, reproduction of registered layout‑design is permitted for scientific evaluation, analysis, research or teaching. If, by application of independent intellect, a person develops a layout‑design that is identical to a registered one, that person may use it as desired without infringing. Infringement of a layout‑design is considered to be a criminal offence in India: the penalty is imprisonment for up to three years and/or a fine of Rs 50,000 to Rs 1 million. There have been no cases of infringement of layout designs during the period under review.382