PROTECTION OF IPR AGAINST UNFAIR TRADE PRACTICE.

INTRODUCTION 

The significance or meaning of Intellectual Property Rights (IPR) was first discuss in the Paris Convention in 1883 and the Berne Convention in 1886 for the security of Industrial Property and Literary & Artistic Work, respectively.

Now, India is an essential member of the World Trade Organisation (WTO) and hence, a party to its TRIPS Agreement. India is as well a member of the World Intellectual Property Organisation (WIPO).

However, in the previous few years, India has introduced different laws for protecting IPR against Unfair Trade practices and for their general public in compliance with various International Conventions & Treaties. There have been usual modifications in the IPR Policy Regime of India.

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What are Intellectual Property Rights (IPR)?

IPR or Intellectual Property Rights are the exclusive rights facilitated to persons over the creation of their minds. They usually give the writer or creator an exclusive right over the usage of their creation for a particular time. There are different types of IPR:

• Trademark;

• Copyright;

• Patent;

• Design;

• Industrial Property;

• Trade Secrets.

What are the present Laws Protecting IPR Against Unfair Trade Practices in India?

Following  a few important laws concerning protecting IPR against Unfair Trade Practices in India:

1. Trademarks Act, 1999[1];

2. The Design Act, 2000;

3. The Copyright Act, 1957;

4. Protection of Plant Varieties & Farmers Right Act, 2001;

5. The Patents Act, 1970, which was changed or amended in 2005;

6. Information Technology Act, 2000;

7. The Semiconductor Integrated Circuits Layout Design Act, 2000;

8. The Geographical Indication of Goods (Registration & Protection) Act, 1999.

Protecting IPR beside Unfair Trade Practices is very essential for several reasons. It is vital to identify the Intellectual Property Rights of the creator and give them security from violation/infringement and exploitation to:

• Promote inventions in the technology & culture ground;

• For the protection of creator’s right;

• To raise the economic growth, thereby establishing new industry & creating new job opportunity;

• To offer transfer of technology in several ways to make sure the easiness of doing business;

There are several examples where businesses have implemented Unfair Trade Practices to take advantage of the work of other opponents or competitors in the market.

On the other hand, Unfair Trade Practices are being use for the illegal use of one’s IP, while on the other side, the holder of the rights over specific IP is misuse their dominant situation in the market through pooling, refusal, and other illegal practices.

So, to avoid market distortion and to manage fair fight by preventing illegal use of IP, there is a require to control unfair trade practices. It is vital to maintain a healthy and well-balanced between IP protection & Competition Policy in the Indian Market to have a fair playing ground for the emerging business.

The acts which are conflicting to truthful practices are considered as acts of unfair fight. So the protection of IPR against Unfair Trade Practices is usually to serve the interest of business competitor.

consumers may be the first victim of the unfair competition, but the protection to the consumer is mainly incidental & not the only purpose of unfair competition. Now with the improvement in various factors, the protection of IPR against Unfair Trade Practices is not only restricted to business competitors but also serves the public interest, which assists in consumer protection.

What Do You Mean by Unfair Trade Practices?

Unfair Trade Practices can be consider as activities that use different fraudulent, deceptive, unethical or misleading ways to run company. Various activities like misleading representation of a product or service tied selling, deceptive pricing, fake gift offer, refusal to allow a license, etc., are included under the visualization of Unfair Trade Practices. For example, misrepresentation of the conditions, benefits, or title of any policy is an Unfair Trade Practices.

As an average rule, any practice or Act implemented in the course of industrial/business activities contrary to fair or truthful practices constitutes an act of Unfair Competition, the decisive criterion being “Contrary to Truthful Practices”.

Following are several trade practices that can be unfair:

• Distribution of misleading/false instruction that can damage the business interests;

• Distribution of improper or misleading information to consumers;

• Deceptive use of another’s Trademark, goods labelling, firm name, or product wrapping;

• Unofficial receipt, delivery or use of confidential scientific, production, technical, trade information, or industry.

Competition Law  – Protecting IPR against Unfair Trade Practices

Protecting IPR against Unfair Trade Practices or competition has been noticed as one of the main target  of the IP system, which prevents any act of competition that is in conflict to fair practices in company or industry-associated matters, referred to as “Unfair Competition”. The limitations on Unfair Trade Practices safeguard the customers against the exclusive right holders of IP by confirming that they don’t use wrongly their leading position in the market. In India, there are two legislations, i.e., Competition Act, 2002 & Consumer Protection Act, 2019, that make sure the competition in India should be fair by secured the consumers’ rights against the exclusive right of the IP holders.

1. Competition Act, 2002: This Act was talk about , in India with an objective of the economic growth of the nation; for the creation of a Commission to control practices having an unfavourable effect on opposition, to encourage & sustain competition in markets, to defend the consumers’ interest and to make sure the independence of trade executed by various players, and for elements connected there with or incidental thereto. This Act tries to shift the focus from restrict monopolies to encouraging fair opposition so that market in India is equipped to fight with the market globally.

2. Consumer Protection Act, 2019: It’s a required act that aims to safeguard the consumers from business exploitation. It cancelled the Consumer Protection Act, 1986, to expand the Act’s scope by growing the rights of consumers & liabilities of sellers. In simple words, it safeguards the consumers from influences of the forcible power of sellers by way of unfair trade practices to restrict competition.

Conclusion

Protecting IPR against Unfair Trade Practices and competition is to improve innovation & development in the market. It doesn’t intend to control market competition. However, there are some activities that take place in the market & are inequitable for the competition, so the Competition Act intends to manage such activities and legalize competition in the market. It is still difficult to choose whether the current Act is feasible enough to verify fair competition in the Indian market without any obstructions and preventing  the use of Intellectual Property Rights. 

WRITTEN BY:

Tanu Priya.