India Law Journal

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Smart Strategies for IP enforcement in India

Enforcing one’s right in India is always a challenge given the unfriendly system, lack of accountability and lack of willingness on the part of the Government to reform police and judiciary which are the backbone in enforcing one’s right be it a tangible or intangible property writes Rajeev Surana.

When one is dealing with intangible property it becomes even harder to enforce given that the property cannot be seen and felt unlike a property or a gold chain. So given this background, lack of awareness and the time it takes to get an Intellectual Property Right granted in India, especially patents acts as a real deterrent in protecting one’s IPR. So what are the ways in which one can enforce IPR in a country like India without having to depend too much on the legal system!! The biggest issue is one invests a lot of time, money and efforts in acquiring the IPR but not enough effort is made in marketing one’s IPR especially in cases of Individuals, Academia & SMEs. Think of your IPR as a product which needs to be marketed and communicated to the outside world for their understanding, appreciation and consumption. First and foremost it is not enough to only let the outside world know that you own a particular IPR but very important to provide a contact email id or website address in case someone wants to use your rights. It helps if you state upfront the terms of use; i.e. under what circumstances one can use the rights, what is the acknowledgement to be provided and mention commercials, if any.

Please keep in mind that different people will have different needs as far as usage of your IPR; for example if someone is running an idea competition then would want permission to market your innovation and you would have to provide details of your innovation and present it to the Jury members for consideration. In some other case, if you run a niche business; such as providing day care services to aged and sick people and have a good reputation a builder may be interested in either having you set up you such services in their prime properties but you may not be willing to take the risk and headaches associated with expansion so in that case you propose to lend your brand and sign a contract with the builder more on lines of franchising.

Also in the world of internet and social media whereby everyone believes they have the right to share with catches their attention, it is a good thing if someone is sharing your work of art be it music or a painting as long as you are acknowledged, the entire content is not copied and your moral rights are not affected. When you come across unauthorised copying of your idea; you should write a letter to the concerned person explaining that your right has been violated and ask the other party asking for specific action; immediately stop copying and pay for the potential loss of income or acknowledge you as the owner of the idea or sign a licensing agreement with you specifying the commercial terms.

Even if you need to approach the police, a court or even customs it is important if you have your documents in order as also specific evidence of unauthorised use of your idea which could be packaging of the lookalike product or screen shot of the website which has illegally uploaded copyrighted content. The most important aspect is having a proactive approach anticipating likely scenarios and business models by which you can engage with other stakeholders.

Do keep in mind that someone can copy your idea but not your creativity so look at ways in which you can engage with those who are misusing your idea including competitors in a world which will increasing move towards collaboration as illustrated in the case of Microsoft and Samsung which cross licensed their patents to develop world class products to challenge Apple’s virtual hold on customers.

To summarise keep in mind the following points:-

Be proactive; not reactive
Put your terms of use in public domain along with your contact details
Create an image of someone who means business by knowing your rights, communicating to the outside world, writing a blog, getting covered in media etc.
Look at collaborating instead of viewing those interested in your idea as a competitor
Send a formal letter by snail mail in case you come across someone who has copied your idea stating call for action

RAJEEV SURANA is the founder of Scinnovation Consultants Pvt. Ltd., an Intellectual Property protection, consulting and monetisation firm based out of Mumbai. He can be reached on rajeev@scinnovation.in & www.scinnovation.in.