05 May Intellectual Property in India
Local market knowledge and proactivity by UK SMEs is critical to protecting their intellectual property in the vibrant Indian marketplace, says Jane Hedin of the UK IPO
India is one of the world’s fastest growing economies and is showing no signs of slowing down in 2016. This vast and diverse country, home to 1.2bn people and a government with a strong commitment to development and reform, is attractive to investment and relocation by UK business. The demand for domestic growth is evidenced by campaigns such as Make in India and the recently-launched Start-Up India, both of which illustrate India’s commitment to opening up business markets for overseas companies.
In any growing market, it is essential to protect and develop all your business assets including any intellectual property you own. The following are some starting points to consider.
Similar, but not the same
You may already own intellectual property (IP) within the UK or the EU and so may be aware of the protection systems available and how they work. However, don’t presume that countries like India with strong historical links with the UK, such as common language and legal systems, will have the same ways of working.
India is a huge country, with complex national and regional markets that can differ radically from State to State. Like the UK, India is a member of the World Trade Organisation so all the main areas of IP, including trade marks, designs and patents, can be protected via registration and can be effectively enforced in the event of unauthorised use.
However, there are some fundamental differences to be aware of. For example, copyright should be registered as this can help to prove ownership in criminal proceedings over infringement. Counterfeiting and piracy are widespread and the legal system in India can be complicated and slow. That said, the current Government of India is close to concluding an all-encompassing policy to improve the IP protection and enforcement regime. Such reforms will help to simplify doing business with India.
While this may sound daunting, applying the same good business practice and sticking to your business plan for IP protection will put you in a strong position to exploit the value of your trademark, design, or patent and allow you to take effective action against misuse, should this situation arise.
Help is already available. The UK IPO has an attaché in India, located at the Mumbai Deputy High Commission, who can provide advice and assistance on all types of IP and how to protect it in India. They work closely with the Indian Government on IP strategy and can assist UK business in exporting or setting up in India. The IPO also has a range of guidance materials for protecting your IP abroad1 and specifically, in India2:
UKTI offers support and advice and has unlimited expertise in overseas trading. It has trade specialists in nine cities within India and has expert online guidance3 for trading with and exporting to the country. UKTI’s partner, the UK India Business Council is also on hand to provide advice to UK-based companies wanting to set up in India and increase B2B (business to business) dialogue between both countries.
Know your territory
As with all things in life, prevention is better than cure and there is no substitute for a comprehensive due diligence procedure. Taking proactive steps to protect your IP before you enter the Indian market is the first and most important step. As intellectual property rights (IPR) are territorial, it is important you apply directly to the Indian IPO4 or via an international organisation, like the World Intellectual Property Organisation, to protect your IP in India.
If you find yourself in the situation where your IP is infringed, whether that be a design copied or a trademark used on counterfeit products, taking early action is vital. Don’t presume the problem will go away. Even if you aren’t too concerned about unauthorised use, (e.g. because you think your business can absorb the losses), there is the risk of damage to your business’ overall reputation. This reputational loss can be a significant over time. At this point it is imperative that expert legal advice is brought on board to deal with the problem at the earliest stage.
Local market knowledge
Getting your new business started in a domestic market is time-consuming and keeping costs to a minimum will always remain an issue. You may be confident in negotiating with licensing authorities, handling VAT and tax returns and dealing with suppliers in the UK, but establishing these relationships overseas can feel a step too far into the unknown. So take advice from those with local knowledge, including trade associations and business support agencies in India, and don’t forget to seek advice from UK businesses that are already operating in India. You can also use an IP watching service that will, for a fee, monitor your IPR for potential infringement in a particular country.
When you find the right opportunity, don’t delay. Securing your IP rights will help your business thrive in any market.