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IPR LITIGATION

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  2. IPR LITIGATION
    • Litigation in Intellectual Property Rights (IPR) is India is quite diverse because there are multiple Courts and different Courts have different practices. Such varied practices require formulation of different strategies. In IPR cases it is important to obtain ex-parte orders where infringement is of such nature that prior notice to the defendant will defeat the effectiveness of the action. Some Courts in India as a matter of practice do to grant ex-parteinjunctions because of internal policies and some Courts do grant such injunctions. This prompts the litigants to resort to forum shopping which is perfectly legitimate. However,forum shopping has limitations with respect multiple factors.
      • On the question of jurisdiction, different facets of IPR have different provisions and this requires different litigation strategies. In Trademarks the owner can sue in the Court of his own territorial jurisdiction if his trademark is registered but he cannot do so in case of passing off where his trademark is used but unregistered. In Patents and Designs the right holder has to choose a Court where the defendant resides or where the infringing goods are made or sold. On the other hand, in case of Copyright infringement the owner can sue within his own jurisdiction irrespective of where the infringement action may have occurred. From, time to time, Court made laws have brought in changes in the practice which made finer interpretation of provisions resulting in hindrances in the choice of appropriate Courts where the right holder has access in accordance with law. For example, the right holder has places of business in five cities in India and has the right to sue in any of the five Courts in the five cities against the infringement of its registered trademark but Courts have held that the choice of forum in such cases would be confined to the Courts within the defendant has his place of business. This is to make sure that the plaintiff does not make wrongful use of its presence in multiple places to cause inconvenience to the defendant.
      • With the increase in awareness the number of cases are growing and the Courts are getting greater and more frequent opportunities to deal with IPR cases and gather greater knowledge and experience. That is helping the enforcement laws getting streamlined and uniform in application. However, considering the vastness of the country and number of Courts in India exceeding 600 it is difficult have uniformity of approaches. In India most of the states have one High Court and some additional benches in different cities in the same States. India has about 24 High Courts each of which have appellate jurisdiction over about 30 District Courts, each, on an average.
    • While the above is the status with regard to civil cases, the criminal laws also play a major role in trademark and copyright counterfeit actions.In India criminal law has no application in case of Patent and Designs. In litigations, investigation has a major role to play because the litigation strategies can be accurately formulated only with information on the defendants/counterfeiters and several successful litigations have been possible as a result of prior information on the details of the infringement and the infringers.

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