INTERNATIONAL REGIME OF INTELLECTUAL PROPERTY LAWS AND DEVELOPMENTAL

ASPECTS

INTERNAL ASSESSMENT I

IIPL

"International Regime of Intellectual Property Laws and Developmental

Aspects”

Name: Shubhit Gaur

Class: BA LLB (Division D)

PRN: 18010125346

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TABLE OF CONTENTS
Introduction....................................................................................................................................3

INTERNATIONAL REGIME OF IPR.......................................................................................4

PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY,

1883:............................................................................................................................................4

BERNE CONVENTION, MADRID AGREEMENT AND BIRPI.......................................4

STOCKHOLM CONVENTION, 1967:...................................................................................4

TRIPS AGREEMENT..............................................................................................................5

developmental aspect.....................................................................................................................6

INTERNATIONAL TRADE....................................................................................................6

RESEARCH AND INNOCATION IN THE DOMESTIC ECONOMY..............................7

INDIAN iNTELLECTUAL PROPERTY RIGHTS development............................................7

TRADEMARK...........................................................................................................................8

Well-known Trademark and Trans-border Reputation....................................................9

PATENT LAW...........................................................................................................................9

CONCLUSION AND SUGGESTIONS.....................................................................................10

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INTRODUCTION

Intellectual Property rights are a term used to refer to a set of rights invested in a specific product
arising out of the creativity or technical intelligence of a person. Intellectual Properties (IP) today
are regarded as basic business assets, as often entire businesses are built on single or multiple
IPs, or rely upon this IPs for a big chunk of their business. The main reason behind this is the
commercialization of innovation or products of utility which arise of a special expression of an
idea which is then packaged and sold in the market. Therefore, it is necessary to protect the
financial rights of the original owner of an expressed idea along with the much idealized
rationale of upholding the integrity of the artist or the creator in terms of literature works and
even technological advancements. 1

The scope of IPs cannot be limited today, with the various growths and developments, new and
upcoming areas involving IP rights are being recognized. In such times, the need for a
comprehensive set of IP Laws at a global level is very much felt throughout the nations.
However, each nation has its own understanding, expectations, and reasons to enforce laws
which inadvertently tend to be detrimental to the interests of certain other nations. The needs and
expectations of a developing nation is bound to be different from a developed nation, hence the
laws which cater to these needs are different. 2

Therefore, in order to accommodate the needs of every beneficiary all across the globe,
international agreements and treaties have been established to maintain the IPR regime.

1
Colas, Bernard. Appendix A: Summary of Barriers to the Transfer of Clean Technologies and Solutions for
Exporters. Centre for International Governance Innovation, 2019, pp. 23–27, International Transfer of Clean
Technologies: Mitigating Legal Obstacles
2
Aksan, Anna-Maria. “Appropriate Health R&D and Intellectual Property Rights Reform in Developing Countries.”
Economica, vol. 80, no. 319, 2013, pp. 475–495.

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INTERNATIONAL REGIME OF IPR

Intellectual Property Rights as we see today has been a result of constant development and
evolution taken about at the international level. Some of its milestone can be traced as follows:

PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY, 1883:

This convention is regarded as the stepping stone for the recognition of IPRs substantially as it
laid down the contents of the term along with the rationale to recognise and further codify rights
belonging to Intellectual Property. One of the main reasons was to give a definitive meaning to
the industrial properties so that the ultimate benefit is reaped by creators and innovators.
Additionally, by codification in a statute, the extent of the protection given in this regard was
also outlined so that it is not used excessively and the ‘accessibility’ to the innovations by the
public at large is not restricted unnecessarily.3

BERNE CONVENTION, MADRID AGREEMENT AND BIRPI

In furtherance of the Paris Agreement, the Berne Convention of 1886 extended the rights given
to industrial property to ‘copyrights’ followed by the Madrid Agreement in 1991 to solidify the
position on copyrights and patent law at the international level. The Bureaux Internationaux
Réunis pour la Protection de la Propriété Intellectuelle (BIRPI) was also established as an
umbrella organisation for the governance of the above mentioned conventions. This later got
culminated into the World Intellectual Property Organisation (WIPO) in 1967.

STOCKHOLM CONVENTION, 1967:

In the aftermath of the Paris convention, the regime of IPR flourished globally and the act was
amended multiple times over the years, the latest among them being the act enacted in
Stockholm in 1967. In this, it was envisioned that the purpose of granting IPR’s is not just to
4
protect innovation but to promote it as well. In furtherance of it various other rights were
granted:

3
S. K. Sharma. “Intellectual Property Rights.” Economic and Political Weekly, vol. 30, no. 12, 1995, pp. 590–590.
4
Verma, S.K. “BIODIVERSITY AND INTELLECTUAL PROPERTY RIGHTS.” Journal of the Indian Law
Institute, vol. 39, no. 2/4, 1997, pp. 203–215.

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 Right to National Treatment: As per this, the member states who were signatory to this
convention had the obligation of treating a registered Intellectual Property in any other
state’s territory as their own so that it’s violation is avoided globally and not restraint in
the shackles of Jurisdiction.
 Right of Property: As per this, the treatment of a later application with regard to the
registration or grievance of an Intellectual Property right was done with retrospective
effect if filed in by a member nation.
 Universality of Rules: It was envisioned that the rules for the protection of intellectual
properties in this ever growing and changing dynamic world must be accorded with
‘Uniformity’ and a set code which shall be applicable to govern the regime of IPR in each
country. This is deemed necessary as corporate trade has augmented its volume with
regard to playing in the international market, amongst different countries. Therefore, to
avoid confusion in deciding upon the merits of a case, it is important to have the same or
largely similar law being imposed everywhere.
 Universal Implementation and WIPO: The edifice of having a singular administrative
framework to provide for the protection of Intellectual Property rights across the globe
was laid down in this convention. The World Intellectual Property Organisation (WIPO)
was established through this, which is responsible today for administering major patents,
trademarks and copyright treaties as per the convention.5

TRIPS AGREEMENT
Since, recognition and development of IPR was central to the governance of Trade worldwide,
its administration authority lied in The General Agreement on Tariffs and Trade (GATT) before
it got reinstated as the World Trade Organisation (WTO) which in turn enacted the most relevant
and substantial treaty in the jurisprudential history of IPR that is the Trade Related Aspects of
Intellectual Property (TRIPS) Agreement in 1977. It later became the universal instrument to
govern IPR.6

5
Horowitz, Bruce, et al. “International Intellectual Property Rights.” The International Lawyer, vol. 37, no. 2, 2003,
pp. 473–477.
6
“An Analysis of the TRIPS Agreement.” Patents and Public Health: Legalising the Policy Thoughts in the Doha
TRIPS Declaration of 14 November 2001, by Andrew Law, 1st ed., Nomos Verlagsgesellschaft MbH, Baden-
Baden, 2008, pp. 42–155.

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The agreement comprehensively sets out the various IPs including the nascent IPs relevant to
developing economies such as Geographical Indications alongside Trademarks, Patents etc. The
agreement further provides for the signatory members to enact relevant statutes to accord
protection to the various recognized IPs.7 TRIPS agreement further discusses the process of
acquisition and management of IPs and also provides for settlement and dispute prevention.

DEVELOPMENTAL ASPECT
INTERNATIONAL TRADE
International trade and intellectual properties interface regularly. Trade of any sort is targeted at
revenue creation, and a robust framework to administer intellectual property laws proves to be
instrumental in helping out the individuals, businesses, consumers and governments.

Even though the entire liberal dialogue favours a lassiez faire economic structure with free
markets and no regulation, at times, it becomes pertinent to regulate certain aspects of trade so as
to protect the interests of the sellers and to promote development and innovation in the market.
These regulations with respect to the various IPs give rise to trade in IPs. The legal recognition
of ownership with respect to a certain IP helps the overall trade of a nation. 8

While trading domestically involves a lot of physical trade, and trade in essential commodities,
the corpus of international trade is largely driven by more qualitative factors apart from the usual
market forces of demand and supply. The global village today is very receptive to change and
welcomes the same. The trade in IPs at an international level is much easier to realize as the
considerations are not as stringent as they are in traditional trade. Extensive migration, increase
in the growth rates of developing nations and major policy reforms around the globe has today
changed the entire discourse around international trade, and has made Intellectual Property a key
subject matter of international trade.9

7
Pandey, B. N., and Prabhat Kumar Saha. “TECHNICAL COOPERATION UNDER TRIPS AGREEMENT:
FLEXIBILITIES AND OPTIONS FOR DEVELOPING COUNTRIES.” Journal of the Indian Law Institute, vol. 53,
no. 4, 2011, pp. 652–662.
8
Do Stronger Intellectual Property Rights Increase International Technology Transfer by Branstetter, Lee, Raymond
Fisman, and Fritz Foley, Quaterly Journal of Economics, (2006), p321
9
Emergence of integrated world post TRIPS agreement, R.Eisenberg, Lewis & Clark Law Rev. 12, 375

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RESEARCH AND INNOCATION IN THE DOMESTIC ECONOMY

Since the 1980s, intellectual property rights (IPR) protection has become much more “extensive
as countries at various stages of development began to implement or extend their national patent
Rights.

It has been found that there is a positive relationship between the “R&D intensity” and
strengthening of IPR legislation. However, this has been witnessed mostly in developed
countries and not developing ones. In fact, many developed countries, including Germany and
Switzerland, had opposed national patent legislation when they were technology importers in
order to take advantage of freely accessible foreign technologies. It is argued that countries have
no interest in strong IPR until they become significant technology exporters. Although the
TRIPS agreement allows for adjustment time, it is unlikely that developing countries will trans-
form from mere "technology importers" to even moderate "technology exporters" within this
short period of time. And since they may not be ready to be major exporters yet, huge reliance is
on the domestic market for the Entrepreneur’s product. 10

However, the importance of IPR in domestic market cannot be weighed any less, specifically at a
time when the country is the beginning stage of witnessing the ‘start-up’ culture and the ‘make in
India’ campaign where protection to IPR is a must. Besides, India now being a member nation to
a lot of International Treaties has the right invested in young entrepreneurs to safeguard their
ideas in other member nations as well. Therefore, India may still not be a major exporter in a lot
of areas but it can still reap the benefits of the IPR regime. 11

INDIAN INTELLECTUAL PROPERTY RIGHTS DEVELOPMENT

In the wake of Globalization and liberalization of the economy in India since 1991, various steps
have been taken to make the laws in the country more in consonance with the TRIPS Agreement
after its ratification, which as discussed is the universal instrument of governance. The various
laws covered have diversified subjects ranging from Trade Marks, Patents, Copyrights and
Related Rights, Industrial Designs, Geographical Indications, Layout Designs of Integrated

10
Ezzeddine, Selma, and M.Sami Hammami. “RETRACTED: Nonlinear Effects of Intellectual Property Rights on
Technological Innovation.” Journal of Economic Integration, vol. 33, no. 2, 2018, pp. 1337–1362.
11
S. Basheer. Reddy, 5(2), 232 (2008); www.law.ed.ac.uk/ahrc/script-ed/vol5-2/basheer.asp.

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Circuits, Plant Varieties, Information Technology and Cybercrimes, Data Protection etc.
Broadly, the following acts deal with the protection of intellectual property:

 Trade Marks Act, 1999

 The Patents Act, 1970 (as amended in 2005)
 The Copyright Act, 1957
 The Designs Act, 2000
 The Geographical Indications of Goods (Registration and Protection) Act, 1999
 The Semiconductor Integrated Circuits Layout Design Act, 2000
 The Protection of Plant Varieties and Farmers' Right Act, 2001
 The Information Technology Act, 2000

As part of the example we shall look into two specific subjects: Trademark and Patent.

TRADEMARK
India's obligations under the TRIPS Agreement for protection of trademarks, inter alia, include
protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of
registration, abolition of compulsory licensing of trademarks, etc.

With the globalization of trade, brand names, trade names, marks, etc., have attained an immense
value that require uniform minimum standards of protection and efficient procedures for
enforcement as were recognized under the TRIPS. In view of the same, extensive review and
consequential repeal of the old Indian Trade and Merchandise Marks Act, 1958 was carried out
and the new Trade Marks Act, 1999 was enacted. The said Act of 1999, with subsequent
amendments, conforms to the TRIPS and is in accordance with the international systems and
practices.12

The Trade Marks Act provides, inter alia, for registration of service marks, filing of multiclass
applications, increasing the term of registration of a trademark to ten years as well as recognition
of the concept of well-known marks, etc. The Indian judiciary has been proactive in the
protection of trademarks, and it has extended the protection under the trademarks law to Domain
Names as demonstrated in landmark cases of Tata Sons Ltd. v Manu Kosuri & Ors.13

12
] Yahoo Inc. v Akash Arora [1999 PTC 201].
13
Tata Sons Ltd. v Manu Kosuri & Ors [90 (2001) DLT 659

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India, being a common law country, follows not only the codified law, but also common law
principles, and as such provides for infringement as well as passing off actions against violation
of trademarks. Section 135 of the Trade Marks Act recognizes both infringement as well as
passing off actions.

Well-known Trademark and Trans-border Reputation

India recognizes the concept of the "Well-known Trademark" and the "Principle of Trans-border
Reputation". A well-known Trademark in relation to any goods or services means a mark that
has become so to the substantial segment of the public, which uses such goods or receives such
services such that the use of such a mark in relation to other goods and services is likely to be
taken as indicating a connection between the two marks.

Trans-border Reputation concept was recognized and discussed by the Apex Indian Court in the
landmark case of N. R. Dongre v Whirlpool. 14 The Trademark "WHIRLPOOL" was held to have
acquired reputation and goodwill in India. The mark "WHIRLPOOL" was also held to have
become associated in the minds of the public with Whirlpool Corporation on account of
circulation of the advertisements in the magazines despite no evidence of actual sale. Hence, the
trademark WHIRLPOOL was held to have acquired trans-border reputation which enjoys
protection in India, irrespective of its actual user or registration in India.

PATENT LAW
Similarly, in case of Patent protection, The Indian Patent and Designs Act, 1911 operated
during the period between 1948 to 1972 and thereafter the Indian Patent Act, 1970 came into
enforcement until 1994. “Since 1994, various amendments to the Patents Act, 1970 were carried
out to make it consistent with Trade-Related Aspects of Intellectual Property Rights (the TRIPS
Agreement). These amendments were mainly carried out in 1994, 2002 and 2005.” Indian
domestic applications for patent registration went up from 352 in 1948 to 7,044 in 2009-10,
amounting to an average of 1,539 applications per annum, registering a growth rate of 3.75% per
annum. One glowing example to further elucidate the situation will be to look at the
development of Patent Protection in the Pharmaceutical Industry.

14
N. R. Dongre v Whirlpool (1996) 5SCC 714

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The pharmaceutical industry in India has a very wide base in terms of producing generic
medicines, both domestically and internationally. The patent policy pursued by India enabled it
to become a big international player in the generic drug market before liberalization in 1991. 15 In
30 years, following the TRIPS Agreement, the Indian pharmaceutical industry was valued at
USD 70 billion compared to a mere USD 2.1 million before 1970. 16

However, post 1991, in order to increase research and innovation in the field of pharmacy, patent
protection has been finally given to new drugs, which is defined under the drugs and cosmetics
act.” The development had come gradually, after India finally ratifying the TRIPS agreement
through the amendments in 2005.

CONCLUSION AND SUGGESTIONS

Through the course of this paper we have traced back the history of the development of the IPR
regime as well as the Organisations governing it. We have also seen its specific evolution in the
Indian context and the challenges against reaping the complete benefits of being a member state
to the TRIPS agreement. In the wake of the booming start up culture in India along with the
Make in India campaign, following suggestions can be made:

 Establishment of National Department of Intellectual Property – A separate nodal

department for all fields of IP should be established. This department should have
separate administrative staff. This department should carry research in the fields of IP and
suggest policy, legislative and administrative changes in the all fields of IP. Department
should have full time government secretary and advisory board of IP professionals,
academicians, researchers etc.
 Periodic Legislative impact assessment: An assessment can be carried over regularly.
National IPR Index and State IPR Index can be determined based on the various
parameters and performance of each state in all fields of IP. India has its own potential in
some specific kind of industry such as software industry, biotechnology etc.
 Re-evaluation of Grants: There is need to provide research grants to all kinds of
educational institutions, universities. The scheme funds should not be restricted to
15
Novartis Ag v Union of India and Ors 2013 6 SCC 1
16
Market Science and Innovation: Theory and evidence from Pharmaceutical Industry by Acemoglu, Daron, and Jo,
NBR working paper journal, (2003)

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Government Institutes only. The funding should be based on performance not on the
owner base. Research project should also be given to private universities, NGOs,
Research organizations etc.
 Expansion of Administrative capacity: To combat with the huge delay in getting
applications of Trademark and Patents approved, the administrative capacity can be
increased. Where there is only one branch of the IP areas such as Copyright office in
Delhi, new divisional or regional offices should be established.
 Establishment of Special Tribunals: Looking at the growing litigation of IPR cases in
India, there should be one IP Court which deals with all kinds of IP litigation. This will
help for speedier and faster resolution in disputes.

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