• Author: Dr. Mohan Dewan

We, as a society, have been constantly metamorphosing from an era of ‘Might is Right’ towards that of ‘Knowledge is Power’. I find support to this statement in the widening boundaries of what constitutes intellectual property today and consequently those of what constitutes infringement. For instance, in a landmark judgment of cybersquatting, the Delhi High Court held that a domain name served the same function as a trademark and was therefore entitled to equal protection.1 Like a budding flower, the concept of intellectual property keeps on blossoming holistically, ever- attempting to encompass as much mind-made matter within its protective ambit as possible. Such blossoming of the constituents of intellectual property and infringement can be majorly credited to the judiciary in our Country. Where in 1995, there was only one reported patent case, 2009 to 2012 there were 15 cases each year.

Two major subject matters in IPR enforcement are Infringement and Counterfeiting. While infringement is using an IP without any authorisation to use the same, counterfeiting is the use of an IP on fake products to pass them off as originals. Nations all over the globe are aggressively battling both these anti-IPs. Not only do they have an adverse impact on the economy, but also contribute to bringing down the IP morale and discourage innovation amongst the community.

One of FICCI’s recent reports stated that in various industry sectors unauthorised or counterfeit/ smuggled goods sales caused average sales losses of 21.7% to intellectual property rights holders in 2012. According to the same report, more than INR 73,000 crores have been lost in the last decade due to counterfeiting, piracy and smuggling. To keep a nation on the constantly progressive terms of innovation and creativity, IPR enforcement is vital. The introduction of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2016 has considerably streamlined the process of tackling infringement by providing stricter timelines, imposition of exemplary costs, case management hearings, summary judgements etc.

If possession is 9/10ths of ownership in property, then authorship/ inventor ship is its counterpart in intellectual property. The primary purpose of the intellectual property law is the protection of the rights of the holders/ authors of such property. Intellectual property has been protected under statutory law as well as common law. The Courts have been granting temporary as well as permanent injunctions wherever there is prima facie evidence of infringement or counterfeiting. Reports suggest orders where injunctive reliefs are granted by the courts are considerably more than those where they have been refused. Only where a question of public policy or presence of strongly put defences have the courts refused injunctions.

The biggest debate with regards to protection of intellectual property is whether its protection is against the natural course of knowledge sharing which ultimately leads to a progressive society. Also, consumers are inclined towards trusting reputed brands. Especially in case of drug and pharma companies, when such brands are copied/ infringed, it can result in health hazards, etc. Hence, in cases of patents or trademarks in the health sector the IP laws are required to be interpreted in such a way that public interests are protected and balanced against the IPR holder’s interests. In the case of Milmet Oftho Industries & Ors v. Allergan Inc2 ,in which the Indian company using the mark OCUFLOX, the court held that even though the company using the mark OCUFLOX had not used the mark in India, their first-entrant presence in the world market was noteworthy. In a recent case related to the unauthorised use of the mark “BEVITAL”3 for a pharmaceutical company, the Court awarded exemplary costs keeping in mind the life threatening impact, wrong dosage of drugs can have on the patient’s life. In both these cases, the Courts observed that in the field of healthcare and medicine, all possibilities of deception and confusion should be prevented; keeping in mind that public interest is not jeopardized.

Recently, in the case of Glenmark v. Galpha4 , the court awarded exemplary costs to the tune of INR 1.5 Crores to Galpha, which has been a habitual infringer of various brands of Glenmark. The Bombay High Court gave a primacy to the ultimate adversity which may arise if such healthcare products are infringed. In another case 5, the court observed that it “cannot feign ignorance of the consequences of the Defendants' infringing activities upon the members of the public that consume their product.”

It has always been easier for the judicial system to improvise and accommodate the internationally ratified covenants rather than wait for legislations to come into place. In the fast moving ecosystem of the IP sector and equally rapid need for laws to regulate the same, the judicial system contributes by introducing guidelines6 and setting standards/ tests for tackling infringement.

And so, the role of the judicial system in effective enforcement of IPR is reflected through its abundant judgements/ orders over the years. The judicial system has been cradling the legislature’s intellectual property policies and the directing the executive’s role in its enforcement with active, expedite participation.

1Yahoo!, Inc. v Akash Arora & Anr [1999 (19) PTC 201 (Del)] :-

2Civil Appeal No. 5791 of 1998

3Delhi High Court CS (COMM) 1071/2018

4Glenmark Pharmaceuticals Limited vs. Galpha Laboratories Limited and Another1 COMIP (L) No. 1063 Of 2018

5Shalina Laboratories Pvt. Ltd. and Anr. v. Twin Impex and Anr2 COMIP (L) NO. 1143 OF 2018

6Cadila Health Care Ltd. v. Cadila Pharmaceutical Ltd. (2001) 5 SCC 73 and Delhi High Court CS (COMM) 1071/2018


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