India near bottom of intellectual property index

India was ranked 37 out of 38 countries, with only Venezuela scoring lower, in the U.S. Chamber of Commerce-International Intellectual Property Index. The U.S. was ranked first, followed by the UK, Germany, France and Sweden. The Index — produced by the Chamber’s Global Intellectual Property Center (GIPC) — is based on 30 criteria critical to innovation including patent, copyright and trademark protections, enforcement, and engagement in international treaties, the Chamber said. India remains at the bottom of the Index for the fourth year in a row, the GIPC report said. The report said patent protection in India remains outside of international best practices, adding that Indian law does not provide adequate enforcement mechanisms to effectively combat online piracy.

A GI is a sign, tag can be issued for agricultural, natural or manufactured goods, products that have a specific geographical origin and possess qualities or a reputation or other characteristics that are due to that origin. A GI registration gives the registered proprietor and authorised users the legal right to the exclusive use of the GI, and no unauthorised person can use the tag. Right is enjoyed by a community / association of producers; it’s a community right. Under WTO– Trade related Intellectual property rights (TRIPS), the Member nations have to respect geographical indications.

A GI is different from Trade Mark. A Trademark generally refers to a “brand” or “logo is obtained for a business name, distinctive catch phrases, taglines or captions. Product comes from a particular enterprise/company, Right enjoyed by only one person/company; individual right.           Can be goods (mobile, PC etc) or service (, spa etc.). A trademark can last forever, so long as the owner continues to use the mark in commerce to indicate the source of goods and services; identifies and distinguishes the source of the goods of one party from those of others.

patent is a limited duration property right or instrument of monopoly relating to an invention, in exchange for public disclosure of the invention.  Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.A patent gave rights to exclude others from practicing ones Invention; it does not give the right to use someone’s Invention.

A copyright protects works of authorship; songs, books, movies, and works of art that have been tangibly expressed in a physical form.


     Ideas and knowledge are an increasingly important part of trade. Most of the value of new medicines and other high technology products lies in the amount of invention, innovation, research, design and testing involved. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, not usually because of the plastic, metal or paper used to make them. Many products that used to be traded as low-technology goods or commodities now contain a higher proportion of invention and design in their value — for example brand named clothing or new varieties of plants.

Creators can be given the right to prevent others from using their inventions, designs or other creations — and to use that right to negotiate payment in return for others using them. These are “intellectual property rights”. Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

They take a number of forms. For example books, paintings and films come under copyright; inventions can be patented; brand names and product logos can be registered as trademarks; and so on. Governments and parliaments have given creators these rights as an incentive to produce ideas that will benefit society as a whole.

The extent of protection and enforcement of these rights varied widely around the world; and as intellectual property became more important in trade, these differences became a source of tension in international economic relations. New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.

The Uruguay Round achieved that. The WTO’s TRIPS Agreement is an attempt to narrow the gaps in the way these rights are protected around the world, and to bring them under common international rules. The TRIPS Agreement which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property. The areas of intellectual property that it covers are : copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks; geographical indications; industrial designs; patents, including the protection of new varieties of plants; and undisclosed information including trade secrets. It establishes minimum levels of protection that each government has to give to the intellectual property of fellow WTO members. In doing so, it strikes a balance between the long term benefits and possible short term costs to society. Society benefits in the long term when intellectual property protection encourages creation and invention, especially when the period of protection expires and the creations and inventions enter the public domain. Governments are allowed to reduce any short term costs through various exceptions, for example to tackle public health problems. The Doha Declaration,of WTO, responds to the concerns of developing countries about the obstacles they faced when seeking to implement measures to promote access to affordable medicines in the interest of public health in general, without limitation to certain diseases under TRIPS agreement. It affirms that “the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health”-affirmation of the right of WTO Members to make full use of the safeguard provisions of the TRIPS Agreement in order to protect public health and enhance access to medicines for poor countries.

The Doha Declaration refers to several aspects of TRIPS, including the right to grant compulsory licenses and the freedom to determine the grounds upon which licences are granted, the right to determine what constitutes a national emergency and circumstances of extreme urgency, and the freedom to establish the regime of exhaustion of intellectual property rights. Compulsory licensing enables a competent government authority to license the use of a patented invention to a third party or government agency without the consent of the patent-holder. And, when there are trade disputes over intellectual property rights, the WTO’s dispute settlement system is available.

India was given an extended period of time to make  its patent regime complaint to TRIPS. Consequently India passed the Patents Amendment Act, 2005 which came into force on 1st January, 2005. Earlier India had allowed for the manufacture of generic versions of many drugs. Through this amendment it has now implemented a product patent regime and product patents in the pharmaceutical sector. This amendment obliged India to grant product patents to drugs and medicines and food and chemical products. This final amendment brought India in full compliance with its TRIPS obligations.

Similarly, in the case of trademarks, the governing law in India now is Trade Marks Act, 1999 brought into force with effect from September 15, 2003 to bring it in compliance with TRIPS by repealing the Trade and Merchandise Marks Act, 1958. The Copyright Act, 1957 today is compliant with most international conventions and treaties in the field of copyrights.

India is one of the countries in the world to have passed sui generis legislation (the Latin term sui generis means ‘of its own kind’) granting rights to both breeders and farmers under the Protection of Plant Varieties and Farmers Rights Act, 2001. The law attempts to incorporate the interests of various stakeholders, including private sector breeders, public sector institutions, non-governmental organizations and farmers, within the property rights framework. Where a country excludes plant and animal inventions and plant varieties from patentability, it is expected to protect them under an effective sui generis system as mandated by TRIPS.


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