Doing business abroad: Protecting your IP in India

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Doing business abroad: Protecting your IP in India

Intellectual property (IP) is a valuable asset that can support your business expansion abroad. A Canadian patent, trademark or industrial design does not secure your rights outside of Canada. You should consider obtaining IP protection in the countries where you are, or plan on, doing business; this includes countries where you sell products over the Internet and countries where you manufacture products.

India is Canada's largest trading partner in South Asia. Given the significance of the Indian market, it is important to know how to recognize, register and enforce your IP rights in India. There are important differences between Canada and India in the protection and registration process for IP.

In India, you can apply for patent, copyright, and trade mark protection. If you wish to enter the Indian market or are already doing business in India, it is recommended that you apply to protect your IP rights in India as soon as practically possible, and that you always do this through Indian attorneys with expertise in IP rights.

Where is IP registered?

Trade marks, copyrights, patents, and designs are granted under the authority of the Office of the Controller General of Patents, Designs & Trade Marks (also known as Intellectual Property India), operating under the Department of Industrial Policy & Promotion.

If you do not have a business entity in India, a lawyer based in India must be used to file an IP application on your behalf. A Canadian or an international IP law firm can provide services directly in India or coordinate work with an Indian associate. As well, the Intellectual Property India website provides a list of Indian patent and trade mark agents. Documents for an IP application can be submitted in English or in Hindi.

Note that under its Biological Diversity Act, India maintains broad, stringent provisions regarding the application for IP rights "based on any research or information on a biological resource obtained from India" without the prior approval of India's National Biodiversity Authority. Penalties for violations of these provisions are severe, and include imprisonment. If you think this requirement may apply to your situation, consult an Indian attorney with expertise in IP rights.

Trade marks

Patents

Designs

IP enforcement

India offers several ways to enforce your rights against unauthorised use, including customs seizures and civil litigation. The state may also prosecute offenders under its own criminal law. Alternative dispute resolution means can also be considered such as mediation or arbitration. In order to determine the best course of action, you should consult an IP professional.

Software

If you are outsourcing or developing software in India you should consider upfront how you will protect your IP rights and establish ownership of your IP. In India, software can be protected mainly by two different types of IP rights: copyrights and patents, though copyright is commonly used. It can also be protected as a trade secret. IP professionals can help you protect your IP rights by drafting non-disclosure agreements and establishing ownership of your IP in the terms and conditions of your procurement contracts, among other things. Obtaining advice may be necessary to protect your IP when outsourcing or developing software in India.

Tips: Important notes

For additional help:

* The information provided above is meant as an educational resource only and should not be construed as legal advice.

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