Transcript Substantive Challenges In Intellectual Property
India’s Exclusive Full Spectrum Business Risk Solutions Enterprise SUBSTANTIVE CHALLENGES IN INTELLECTUAL PROPERTY PROTECTION IN INDIA
PAN INDIA OPERATIONS
“Enforcement has been identified as the single greatest hurdle to Intellectual Property Rights Protection in India.”
ENFORCEMENT CHALLENGES
The enforcement infrastructure suffers from dual challenges at both the police enforcement and judicial levels
Both challenges hinge on resource prioritization
The central-state division means resource prioritization and adequacy of enforcement varies from jurisdiction to jurisdiction.
THE ISSUE OF SUPPLY AND DEMAND OF COUNTERFEIT PRODUCTS
Both imports (particularly from China) and domestic production are counterfeiting sources in the market.
A thriving and growing grey market in counterfeit goods exists to supply a population eager for cheap products.
Lack of public and government awareness
Government as a buyer of counterfeits
Research indicates minor amendments to the Trademark law needed to improve other challenges in the market.
POLICE ENFORCEMENT AUTHORITIES: CHALLENGES
Lack of prioritization by police authorities of commercial crimes.
Quality of enforcement varies greatly from region to region.
Size of enforcement action
Lack of simultaneous action
Multi Jurisdictional
Interpretation of the law
Underfunded resources and a lack of dedicated IPR enforcement unit.
Police authorities rarely conduct raids based in their own investigations
Section 115(4) of the Trademark Act.
Lengthy wait time to action, resulting in evidence disappearing and less effective actions.
Corruption and collusion
Post Enforcement debriefing of infringers and follow up actions.
THE COURT SYSTEM: CHALLENGES
The court system is overburdened. The backlog of existing and new cases results in lengthy delays between the time a case enters the court and the time it reaches a sentence.
It takes 2 – 3 years to issue a summons and 6 – 8 years to conclude.
Tribunal level cases may be pending for 7 – 10 years without resolution. Not only is the process costly but evidence disappears and criminals go free in interim years.
Reluctance to apply strong penalties and deterrence level sentencing
IMPORTATION OF COUNTERFEITS
Customs has not prioritized trademark related seizures and there is some confusion in the registration process.
Resources constraints limit the number of seizures to be conducted. Document forgery. Non mention of brand name and misrepresentation or description of goods and low examination rates.
The indemnity bond for Customs actions is bureaucratic and ineffective.
Seized trademark goods sometimes finds its way back into the supply chain.
China represents a critical concern.
Border problems are exacerbated by trade in parallel goods.
Custom officials are frustrated with industry for “failure to follow-up on seized shipments in a timely manner and failure to follow-up on legal cases.
DOMESTIC MANUFACTURE OF COUNTERFEITS
Authorized packaging materials find their way into counterfeit distribution channels.
Low cost original products being used for high quality counterfeit products.
Diversion of OEM Products
Ease in availability of raw ingredients and counterfeit packaging material.
TRADE ISSUES
Involvement of Authorized Trade
Opposition from Trade Associations
BRAND OWNERS ISSUES
Lack of awareness about scope of the problem
Clarity in objective
Seriousness in approach
Approach and Expectations
AGENCY ISSUES
Lack of bandwidth
Absence of big players
Still disorganized
Corruption and Collusion
Non availability of complainants till the end of litigation process.
Brand Protection treated like a product and not a process
Deliverables
ROAD AHEAD
“Find means to achieve a state of viable deterrence”
SOME SUGGESTED COMPREHENSIVE SET OF MEASURES
Market Survey.
Scoping and Mapping of the extent of the Problem.
Detailed Investigations.
Supply Chain Integrity Audits Investigations, Surveillance and Coordination with Customs for operations against illegal imports/ exports Internet Investigations and monitoring of E – Commerce of counterfeit products.
Enforcement Actions Investigations of Institutional Sales.
PR and Utilization of Media.
Educating the Trader Association in Key Markets.
Issue of Cease and Desist letters /notices Court Orders Comprehensive Legal Establish a Toll Free Number for obtaining information regarding counterfeit products.
THANK YOU
Source(s) IOCC And BASCAP Study Of India’s Counterfeiting And Trademark Environment, Member Survey And Desk Research