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Trademark

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Custom Laws

Design Patent - Enforcement & Remedies

The following acts are considered to be piracy:
  • Sale:

    For the purpose of sale, to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, or to do anything with a view to enable the design to be so applied;
  • Import:

    To import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered and having applied to it the design or any fraudulent or obvious imitation thereof; or
  • Publish:

    To publish or expose or cause to be published or cause to be exposed for sale the article, knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered.

Compensation

If a person commits any act of piracy as mentioned above, he shall be liable for every contravention to pay to the registered proprietor of the design a sum not exceeding INR 25,000/- (approximately $625) subject to a maximum of INR 50,000/- (approximately $1,250) recoverable as contract debt in respect of any one design or the registered proprietor can initiate a suit against the infringer.

Civil Law Action

A suit for infringement can be initiated under the Designs Act, 2000.
  • Jurisdiction and Venue:

    A suit for infringement and/or passing off can be initiated either in the District Court or in the High Court depending on the valuation of the suit. The suit can be at the place where the rights holder or one of the rights holders actually and voluntarily reside or work for gain or carries on business.
  • Elements of the Complaint:

    In the Complaint, the rights holder is required to demonstrate that the alleged infringing act involves a design that is identical or similar to the design of the rights holder and that the unlawful act interfered with the rights holder's rights of exclusive use or caused the rights holder economic loss
  • Statute of Limitation:

    As a general policy in India and as prescribed under the Limitation Act, the rights holder has a period of 3 years from the cause of action for filing the suit. However, as design infringement is a continuing offence and the infringer violates the exclusive proprietary right of the rights holder every time he commits a discreet infringing act, the limiting period will run anew with each new act. Nevertheless, it is advisable that the legal action be initiated against the infringer as promptly as possible in order to establish the seriousness of the rights holder's intent before the Court.
  • Ex-parte Interlocutory Injunction:

    Most Indian courts will grant ex-parte interlocutory injunctions provided that the rights holder is able to establish its rights before the Court and establish the gravity of the offence and that the violation of its proprietary rights merits immediate consideration. Ex-parte interlocutory injunction is a temporary injunction granted for the course of the trial restraining the infringer from using the infringing design, without any notice to the infringer.
  • Appointment of the Local Commissioner:

    Depending on the facts of the case, it is also advisable to ask the Court to appoint a local commissioner on the first date of the hearing to raid the premises of the infringer where the infringing goods are stored, in order to seize the goods.
  • Damages:

    There has been a change in the Indian judicial system in recent times with some of the courts granting damages to rights holders for violation of their intellectual property rights, though such cases are still few and far between.

Customs Laws:

See details under Custom law section.
Trademark
Enforcement & Remedies
Passing Off
How to register
What not to register
What to consider
Patent
Enforcement & Remedies
Ancilliary Work
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What to consider
Design Patent
Enforcement & Remedies
How to register
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Copyright
Enforcement & Remedies
How to register
What to register
Domain Names
Enforcement & Remedies
How to register
What to consider
Custom Laws
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